1721346 (Refugee)
[2022] AATA 799
•20 January 2022
1721346 (Refugee) [2022] AATA 799 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1721346
COUNTRY OF REFERENCE: Syria
MEMBER:Brendan Darcy
DATE:20 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Statement made on 20 January 2022 at 3:49pm
CATCHWORDS
REFUGEE – Protection visa – Syria – complementary protection – Orthodox Christian – imputed pro-Assad political opinion – conscription into the Syrian military – general security situation in Syria – inability to relocate in Syria – inability to relocate to a third country – residency permit in Venezuela ceased – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 5LA, 36(2)(aa), 65, 499
CASES
Aksahin v MIMA [2000] FCA 1570
Chen Shi Hai v MIMA (2000) 201 CLR 293
Mehenni v MIMA [1999] FCA 789
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Syrian Arab Republic (Syria), applied for the visa on 16 December 2015. The delegate refused to grant the visa on the basis that the applicant could avail himself of the right to enter a third country, namely Venezuela, where he had a right to enter and reside, either temporarily or permanently.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm based on his claims about conscription, his religion and his imputed political opinion, if returned to the Arab Republic of Syria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant was born on [date] in [Damascus], Syria. A translated copy of the applicant’s family’s Syrian Family Registration Record shows he is [one of a number] of [children], having [sisters] and [brothers].
The applicant resided in Syria from the time of his birth through to [August] 2007, before moving to Venezuela. The applicant completed his primary and middle education in Syria.
The applicant was granted a FA-600 (Visitor) visa on 20 May 2015 and arrived in Australia [in] November 2015.
History prior to the applicant’s arrival in Australia
The applicant’s father died in 1994 from a [medical] condition. His sister [moved] to Beirut in the same year. The applicant’s other sister[moved] to Australia in 2011 with her Australian husband. At the time of application, all but one of the applicant’s brothers were living in Venezuela, while the applicant also resided there, with the other brother remaining in Syria with his mother.
Following the completion of his education, the applicant worked [at] a [workplace] located in Damascus, for two and a half years.
The applicant states he then went to Venezuela in August 2007, initially to visit two of his brothers who had moved to Venezuela in 2002. This led to the applicant staying and working in Venezuela for almost two years, where he assisted his brothers in the operation of a [shop] located in [a named location]. The applicant resided in an apartment above the [shop].
The applicant returned to Damascus, Syria [in] May 2009 to see his mother and to submit relevant documentation to avoid being drafted into the Syrian military.
The applicant returned to Venezuela [in] April 2010, where he again worked with his brothers in the family’s [shop].
The applicant states he applied for residency in Venezuela [in] October 2010, which was subsequently granted in the same month.
The applicant claims that, following the death of former Venezuelan President Hugo Chávez in 2013, life in Venezuela changed. According to the applicant, the family’s business suffered financially, and he experienced prejudice from locals due to his Middle Eastern heritage. The applicant travelled to Lebanon, arriving in Beirut [in] November 2013, to assess whether it would be viable for him and other family members residing in Venezuela to return to Damascus. The applicant concluded that, due to conflict in the region and the family’s status as non-Muslims, it would not be safe for them to return to Syria. The applicant returned to Venezuela [in] December 2013.
The applicant’s journey to, and arrival in, Australia
A certified copy of the applicant’s Syrian Passport (issued [in] 2010, expired [in] 2016) shows that the applicant made his way to Australia via the US, having left Venezuela [in] November 2015.
That passport contains a US B1/B2 visa which was granted [in] March 2015 with an expiry date of [March] 2025. The applicant states he came to Australia via the US, and that the B1/B2 visa was granted for this purpose.
The passport also contains a residency visa for the Republic of Venezuela, which was granted [in] August 2015 and expired [in] October 2020. Also present are visas to transit through international zones in [a European country] from [November] 2013 to [December] 2013, and [a second European country] from [June] 2014 to [August] 2014.
As mentioned above, the applicant was granted a FA-600 (Visitor) visa on 20 May 2015 and arrived in Australia [in] November 2015. The applicant applied for a XA-866 (Protection) visa on 16 December 2015. The applicant claims that he resided with his sister and brother in-law at their residence when he first arrived in Australia.
Applicant’s claims for protection and the delegate’s decision
In his form 866C, dated 10 December 2015, the applicant makes the following limited claims as to the reasons he could not return to Syria:
·The applicant will be forced to join the army or be conscripted for military service. The Syrian military runs counter to his Orthodox Christian beliefs.
·The applicant had been told by his brothers that they paid the Syrian Government money so that he could avoid compulsory military service.
·Due to his status as an Orthodox Christian, he fears he will be persecuted and that he may be killed on that basis.
The applicant makes claims in his form 866C that he felt he could no longer reside in Venezuela due to continued discrimination based on his ethnicity and religious beliefs, including being subject to violence and poor economic prospects due to his ethnicity.
At interview with the delegate, the applicant provided further detail regarding his claims and where members of his family were residing. According to the applicant, [a number of his] brothers who resided in Venezuela left and went to alternate countries shortly after the applicant came to Australia. One brother left one month after the applicant, moving to [Country 1], while the other left two months after the applicant, moving to [Country 2]. The remaining brother continued to stay in Venezuela, because he was married to a Venezuelan citizen and their children have Venezuelan citizenship. The applicant’s mother left Syria and moved to Lebanon. The applicant’s oldest brother remained in Damascus, Syria, although the applicant noted he rarely left his house, only doing so for necessities and for as short a time as possible.
At the interview, the applicant made claims that he was unable to return to Venezuela because of the anti-migrant (and especially anti-Arab) sentiment which had emerged shortly after the death of President Chávez. The applicant made further claims in support, namely that the Venezuelan police were encouraging break-ins to businesses, including the family’s [shop].
The applicant was asked by the delegate whether he supported the Assad regime. The applicant confirmed he is neither pro nor anti the Assad regime. The applicant confirmed he fears ISIS, Daesh, and supporters of Daesh in Syria, and was fearful of being targeted due to his status as an Orthodox Christian.
On 28 August 2017, the delegate refused to grant the applicant a protection visa.
The present application for review was lodged with the Tribunal on 11 September 2017.
The applicant’s representative provided the Tribunal with fresh legal submissions on 6 December 2021. The submissions state the applicant fears persecution on a number of different grounds if returned to Syria, namely:
·His status as an Orthodox Christian;
·His imputed pro-Assad political opinion;
·His forcible conscription into the Syrian military;
·The general security situation in Syria;
·The inability of the state authorities to protect him;
·His inability to subsist; and
·His inability to relocate within Syria to avoid persecution.
The submissions also outline claims that the applicant is unable to obtain and/or maintain residency in another country, specifically Venezuela. The submissions claim the applicant is now unable to claim a residency visa as he no longer meets the visa requirements, as he does not run a business, nor does he have any family members resident in Venezuela.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 28 August 2017. On 11 September 2017, the applicant validly applied to have that refusal decision reviewed by the Tribunal. Attached to the application for review was a copy of the delegate’s notification and decision record.
On 6 December 2021, the Tribunal received a legal submission with a number of attachments. The attachments indicate that one of his brothers has become a [Country 2] citizen, while [others] have [Country 1] residency permits.
On 10 December 2021, the applicant appeared before a scheduled hearing to give evidence and present arguments as to the reason he is owed Australia’s protection obligations. He was assisted by an interpreter in the Arabic (Levantine) and English languages.
The applicant was represented by a legal [practitioner].
At the end of the scheduled hearing, the applicant was provided with a post hearing opportunity to submit any further information or arguments by 7 January 2022. On 14 January 2022, the applicant’s representative submitted a legal submission and some translated documentary evidence (which is discussed below).
There are no non-disclosure certificates attached to the applicant’s Departmental or Tribunal files.
Country information: Syria
According to Wikipedia, Syria is officially the Syrian Arab Republic (al-Jumhūrīyah al-ʻArabīyah as-Sūrīyah). It is a country in Western Asia, bordering Lebanon to the southwest, the Mediterranean Sea to the west, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest. Its capital and largest city is Damascus. A country of fertile plains, high mountains, and deserts, Syria is home to diverse ethnic and religious groups, including the majority Syrian Arabs, Kurds, Turkmens, Assyrians, Armenians, Circassians, and Greeks. Religious groups include Sunnis, Christians, Alawites, Druze, Isma'ilis, Mandaeans, Shiites, Salafis, and Yazidis. Arabs are the largest ethnic group, and Sunnis are the largest religious group.
The most recent DFAT reports on Syria include the 2 February 2015 country information report and the 23 October 2017 thematic report on the conditions in refugee camps in Syria.
A more recent COISS researched document from DFAT dated 10 December 2020, the Situational Update on Syria, states:
Government controlled areas
In southern Syria, there were continued clashes affecting civilians in the south-west of country, particularly in Daraa. This included assassinations of both fighters reconciled from former opposition armed groups and of government-affiliated figures. The UN Security Council reported in October 2020 on the occurrence of ‘government raids, arbitrary detention, conscription drives and the lack of public services’ in the area. According to an October 2020 report by the Danish Immigration Service, there were at least 101 attacks against government officials and former opposition fighters in southern Syria between January and July 2020. There were also at least 49 air strikes conducted by Israeli forces in south and central Syria between January and September 2020. In the aforementioned Danish Immigration Service report, the following incidents were recorded in government controlled areas of Syria between 1 January and 1 September 2020: · In Suweida: 11 security incidents, including two explosions, three battles and six incidents of violence against civilians. · In Daraa: 53 security incidents, including 22 battles, 12 explosions, and 19 cases of violence against civilians. · In Homs: five security the incidents, including one incident of violence against a civilian, three explosions and one battle (an Israeli air raid against a Hezbollah ammunition warehouse). · In the government controlled areas of Hama: eight security incidents, including six explosions, one case of violence against a civilian, and one battle. · In the government controlled areas of Latakia: eight security incidents, including one battle, and seven explosions. · In Tartous: one security incident against a civilian. · In Quneitra: Three security incidents, all explosions.
[…]
Political situation
Broadly, the political situation in government-controlled Syria is fairly stable in 2020 with some notable concerns. The Assad government controls 60-70 per cent of territory in the country and comfortably won the controversial parliamentary elections held in July 2020 (see Parliamentary elections). After almost a decade of war, the Syrian regime has largely defeated the majority of its opponents. Nevertheless, talks between parties to the conflict have still been unable to agree on a Syrian constitution; the UN-backed Syrian Constitutional Committee (SCC), formed in 2015, began meeting in late 2019. The SCC meetings were delayed in 2020 due to the COVID-19 pandemic and so far no agreement has been made on the general principles put forward by each party. Despite the gains achieved by the Assad government, the country is grappling with an economic crisis that leaves many citizens in poverty (see Economy). There is also a growing number of COVID-19 cases and the government’s response to the pandemic has been criticised. The number of COVID-19 cases is estimated to be far higher than official figures (just over 8,500 cases as of December 2020). After years of conflict, only half of hospitals and health centres are even partially functioning and an estimated 70 per cent of medical personnel have fled the country. (footnotes deleted)
The Tribunal has also considered the more recent UK Home Office report on Syria (country Policy and information Note - Syria: the Syrian Civil War) dated August 2020. The report described the overall security situation in Syria as follows:
In February 2020 CFR published an article entitled ‘Syria’s Civil War: The Descent into Horror’. Below are extracts from the article giving a broad outline of the conflict in Syria as it unfolded and what the situation on the ground is at time of writing: ‘The Arab Spring began in December 2010 with the self-immolation of a Tunisian fruit vendor decrying corruption. His act prompted protests in Tunisia, and then across the Middle East and North Africa, which forced longtime strongmen in Tunisia, Egypt, and Yemen to step down. Inspired by these previously unthinkable events, fifteen boys in the southwestern city of Deraa, Syria, spray-painted on a school wall: “The people want the fall of the regime.” They were arrested and tortured. Demonstrators who rallied behind them clashed with police, and protests spread. Many protesters were calling for something more modest than regime change: the release of political prisoners, an end to the half-century-old state of emergency, greater freedoms, and an end to corruption. […] Assad responded to protesters immediately, offering just token reforms while directing security services to put down the protests with force. ‘Anti-regime protests soon spread from Deraa to major cities such as Damascus, Hama, and Homs. Events in Deraa offered a preview of what was to come elsewhere: The Syrian army fired on unarmed protesters and carried out mass arrests, both targeting dissidents and indiscriminately sweeping up men and boys, human rights monitors reported. Torture and extrajudicial executions were frequently reported at detention centers. Then, in late April 2011, the Syrian army brought in tanks, laying siege to Deraa. The civilian death toll mounted and residents were cut off from food, water, medicine, telephones, and electricity for eleven days. Amid international condemnation, the regime offered some concessions, but it also repeated the Deraa response in other places where there were protests, at far greater length and cost, leading some regime opponents to take up arms. ‘[…] In July 2011, defectors from Assad’s army announced the formation of the Free Syrian Army (FSA), and soon after they began to receive shelter in Turkey. Yet the FSA, outgunned by the regime, struggled to bring its loose coalition under centralized command and control. FSA militias often didn’t coordinate their operations and sometimes had competing interests, reflecting their varied regional backers. With resources scarce, they preyed at times on the very populations they were charged with protecting.’ [1]
Draft evasion
[1] UK Home Office, Syria Civil War, type="1">
On 7 May 2020, the UN High Commissioner for Refugees (UNHCR) issued a note regarding dissent and oppression of Syrians by their government. [2] It states the Syrian Government continues to violently supress and punish any real or perceived dissent in areas under its control. It specifically states the following regarding draft evasion:
In Syria, draft evasion[3] is a criminal offence. [4] The right to conscientious objection is not legally recognized and there are no provisions for substitute or alternative service.[5]
Independent observers note that draft evasion is likely considered by the government as a political, anti-government act, particular in the following circumstances: previous anti-government activities such as participating in protests, or expressing real or perceived anti-government views in the press or on social media; originating from an area currently or formerly held by anti-government armed groups; family ties to a person opposing or perceived to be opposing the government; or having fled abroad.[6] Draft evaders perceived to be opposing the government would likely be subjected to punishment beyond the relevant sanctions for the criminal offence of draft evasion,[7] including harsher treatment during arrest, interrogation, detention and, once deployed, during military service.[8] In practice, rather than facing criminal sanctions (imprisonment) under the Military Penal Code, draft evaders are reportedly deployed to a frontline fighting position within days or weeks of their arrest, often with only minimal training, as a form of punishment for their perceived disloyalty.[9] Draft evaders in detention face a risk of torture and other forms of ill-treatment,[10] a practice reported to be endemic in Syria.[11] Finally, since 2011, different cohorts of conscripts have been forced to serve in the army for extended periods of time, beyond the mandatory military service. [12]
ASSESSMENT OF CLAIMS AND FINDINGS
[2] UN High Commissioner for Refugees (UNHCR), COI Note: Participation in Anti-Government Protests; Draft Evasion; Issuance and Application of Partial Amnesty Decrees; Residency in (Formerly) Opposition-Held Areas; Issuance of Passports Abroad; Return and “Settling One’s Status”, 7 May 2020, available at: [accessed 18 January 2022].
[3] “Draft evasion occurs when a person does not register for, or does not respond to, a call up or recruitment for compulsory military service. The evasive action may be as a result of the evader fleeing abroad, or may involve, inter alia, returning call up papers to the military authorities. In the latter case, the person may sometimes be described as a draft resister rather than a draft evader (…). Draft evasion may also be pre-emptive in the sense that action may be taken in anticipation of the actual demand to register or report for duty. (…) Draft evasion may be for reasons of conscience or for other reasons”; UNHCR, Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service Within the Context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees, 3 December 2013, HCR/GIP/13/10/Corr. 1, pp. 1-2.
[4] Draft evaders who do not present themselves for military service within 30 days after the prescribed notice period are subject to imprisonment ranging from one to six months (during peacetime), in addition to having to serve the regular military service. In wartime, the punishment for draft evasion is imprisonment for up to five years, depending on the circumstances. After having served the sentence, the draft evader has to serve the regular military service; Syria: Law No. 61 of 1950, as amended (Military Penal Code) [Syrian Arab Republic], 16 February 2017, articles 98 and 99. Full text of Law No. 61 of 1950 (in Arabic), see: Only Christian and Muslim religious leaders are exempt from military service based on conscientious objection, although Muslim religious leaders are required to pay an exemption fee; US Department of State, 2018 Report on International Religious Freedom: Syria, 21 June 2019, According to Sara Kayyali of HRW, “(…) individuals who were in areas previously held by the opposition that were retaken, and who were forcibly conscripted by the Syrian government are very likely to be considered as holding an anti-government opinion. Individuals returning from abroad are also likely to be seen as holding anti-government opinions. Individuals originally from areas now in anti-government control may also be perceived as such”; E-mail communication with Sara Kayyali, Syria Researcher, Middle East and North Africa Division, HRW, 9 March 2020 (e-mail on file with UNHCR). “From two sources I know that your treatment depends largely on how well connected you are in the regime. Alawites with solid 'connections' (‘wasta’ in Arabic) will not suffer the worst consequences, and in the two cases mentioned had to pay a 'compensation' (‘badal’ in Arabic) of about €8000. All others, especially working-class Sunni men from rebellious neighborhoods and areas (such as Eastern Ghouta) are dealt with much more ruthlessly. The latter are perceived to have been disloyal to the army, and are routinely ill-treated, suffer violent hazing rituals, and often have to endure physical training that would amount to torture according to European soldiering standards. Some are shot point blank on the fronts, their deaths being attributed to a 'suicide', an 'accident', or 'combat'” (emphasis added); Prof. Dr. Ugur Umit Üngör, Professor of Holocaust and Genocide Studies, Institute for War, Holocaust and Genocide Studies, Amsterdam, 8 April 2020 (e-mail on file with UNHCR).
[7] “The Convention ground [here: political or imputed political opinion] needs only to be a contributing factor to the well-founded fear of persecution; it need not be shown to be the dominant or even the sole cause” (emphasis added); UNHCR, Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service Within the Context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees, 3 December 2013, para. 47.
[8] “The intent or motive of the persecutor can be a relevant factor in establishing the causal link between the fear of persecution and a Convention ground but it is not decisive, not least because it is often difficult to establish”; UNHCR, Guidelines on International Protection No. 10: Claims to Refugee Status Related to Military Service Within the Context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of Refugees, 3 December 2013, para. 48.
[9] According to Prof. Dr. Ugur Umit Üngör “[O]fficially, you're supposed to be tried and convicted of failing to comply with military law, and if you are found guilty, it is a felony offense. In practice, from what we know from interviews with young Syrian men, the regime is struggling with a shortage of manpower and chooses pragmatically to send draft dodgers to the army directly, to complete the most deadly [sic] tasks (right at the frontline). In some cases, it does lead to a 'field court' (‘mahkama maydaniya’) in which severe punishments are meted out. Anybody who is unlucky enough to actually get convicted and end up in prison, suffers the same treatment as all the other miserable victims in Syria's Gulag. (…) Most recent research demonstrates that the category of individuals considered to be opposing the government (e.g. persons from retaken areas, former opposition fighters, opposition activists) are especially under deadly threat. There are forced disappearances, formal arrests, and summary executions being reported. These men are sent to the front as a form of punishment indeed, which can only be understood by looking at the deep resentment that the pro-regime milieu feels at the 'disloyalty' of those men. Regime officials and sympathizers feel that for years, their sons have sacrificed themselves for the 'homeland' and the 'nation', and that these draft dodgers are getting off easily, and now must be taught a lesson”; Prof. Dr. Ugur Umit Üngör, Professor of Holocaust and Genocide Studies, Institute for War, Holocaust and Genocide Studies, Amsterdam, 8 April 2020 (e-mail on file with UNHCR). “In the absence of any ability to conscientiously object from conscription and with the legal scheme being applied in a discretionary manner, the regime has used conscription as a tool of punishment and power consolidation, rather than to establish a culture of service to protect the nation” (emphasis added); TIMEP, TIMEP Brief: Conscription Law, 22 August 2019, “(…) the vast majority of detainees involved in the popular uprising for democracy in Syria, including political and human rights activists, media workers, and relief activists, and similar prisoners of conscience, have been accused by the security branches of several charges based on testimonies taken from detainees by the regime under coercion, intimidation and torture. (…) Detainees and individuals forcibly disappeared by Syrian Regime forces are subjected to exceptionally brutal and sadistic methods of torture, which have assumed a vengeful character since the popular uprising for democracy began in March 2011” (emphasis added); SNHR, At least 156 Cases of Arbitrary Arrests Documented in Syria in March 2020, 2 April 2020, pp. 5, 6. “Human rights activists, the COI, and local NGOs, however, reported thousands of credible cases of regime authorities engaging in frequent torture, abuse, and inhuman treatment to punish perceived opponents, including during interrogations. (…) Human Rights Watch (HRW) and the COI reported regular use of torture against perceived regime opponents at checkpoints and regime facilities run by the Air Force, Political Security Division, General Security Directorate, and Military Intelligence Directorate” (emphasis added); US Department of State, 2019 Country Reports on Human Rights Practices – Syria, 11 March 2020, “From the moment of his or her arrest, the detainee is deprived of all legal and human rights and subjected to multiple forms of torture (…) there is hardly any male or female detainee who has not been subjected to some form of torture which is practiced from the very first moments of detention”; SNHR, Documentation of 72 Torture Methods the Syrian Regime Continues to Practice in its Detention Centers and Military Hospitals, 21 October 2019, p. 2. See also, UN News, UN Security Council ‘Utterly Failed’ Syrian Detainees; A Victim Voices Her Plea to ‘End Impunity and Stop this Horror’, 7 August 2019, SOHR, Prisons of The Syrian Regime: Cellars of Death Claim the Lives of Tens of Thousands of Syrians, 30 July 2019, SNHR, At Least 14,227 Individuals, Including 177 Children and 62 Women, Killed as a Result of Torture in Syria, 27 June 2019, Amnesty International et. al., Syria: Tell Families of Missing the Fate of Loved Ones, 13 May 2019, New York Times, Inside Syria’s Secret Torture Prisons: How Bashar al-Assad Crushed Dissent, 11 May 2019, LDHR, “Death Became a Daily Thing”, August 2018, p. 32.
[12] Rather than the regular 18 to 21 months of mandatory military service (depending on the level of education), conscripts have regularly been retained for much longer periods since 2011. “During the war, the regime has kept some conscripts in the army despite the completion of their compulsory service. In July 2019, a social media campaign entitled ‘We want to be discharged’ resurfaced after two years. The campaign, which first appeared in 2017, calls for the discharge of soldiers who had been fighting beyond their required service. There has been no reported demobilization order in response to this most recent campaign, but state media agency SANA previously reported two demobilization orders in 2018”; TIMEP, TIMEP Brief: Conscription Law, 22 August 2019, of reference
Considering the copy of the applicant's Syrian passport provided to the Department, the Tribunal finds the applicant to be a citizen of the Arab Republic of Syria and that Syria is the applicant’s country of origin, as claimed. Accordingly, the Tribunal finds that Syria is the applicant’s country of nationality for the purposes of s.36(2)(a) as well as for the purposes of 'receiving country' under the Act’s complementary protection provisions.
Third country protection
The applicant’s now expired passport contains a residency visa for Venezuela, which was granted [in] August 2015 and expired [in] October 2020. The applicant had resided in Venezuela with family members for as many as eight years. At the time of application and the time of the primary decision, the applicant held a valid visa which allowed him to enter and reside in Venezuela. The delegate made findings that Australia did not owe the applicant any protection obligations because he was able to enter and reside in that third country as required by s.36(3) and not suffer any real chance of serious harm or real risk of significant harm as required by ss 36(4), (5) and (5A).
However, at the time of making this decision, the applicant’s visa to Venezuela had expired in October 2020. Therefore the applicant does not hold any extant rights to enter and reside in this third country, either temporarily or permanently, pursuant to s.36(3).
The applicant’s same expired Syrian passport contains a B1/B2 visa, which was granted [in] March 2015 with an expiry date [in] March 2025. It was the same visa the applicant used to transit through the US on his way to Australia from Venezula. This visa provides contemporary or existing permission for the applicant to enter the US until March 2025. As discussed in the hearing, the visa allows the applicant to temporarily enter the US, but it does not allow him to reside in it in any meaningful or practicable sense. Accordingly, the Tribunal finds the applicant does not have a right to enter and reside in the US, either temporarily or permanently, pursuant to s.36(3).
The Tribunal is satisfied that s.36(3) does not apply to the applicant as third country protection is not available to the applicant, most specifically in respect to Venezuela and the US, but also in relation to any other third country.
Findings: accepted personal circumstances
The Tribunal finds the applicant to be a credible and reliable witness. The applicant’s written and oral evidence was generally consistently posited, and he presented his oral evidence in a forthright manner at the scheduled hearing. Furthermore, the Tribunal noted his evidence was consistent with available country information.
In the context of the finding about the applicant’s overall credibility, the Tribunal makes the following findings about the applicant’s personal circumstances.
The Tribunal accepts that the applicant was born in Damascus in [year], as claimed. It accepts that the applicant’s family belongs to a practising Orthodox Christian (specifically of the Antiochene rite) family and that he and his family’s ethnicity is Arabic.
The Tribunal accepts that the applicant’s father passed away in 1994 and that his mother, who was born Lebanese, currently resides in Lebanon. It is also accepted that the applicant’s mother resides [in] Lebanon with one of his [brothers] and one of his sisters. The applicant also has one sister living in [a named country], one sister living in Australia and [a number] living in [a named country]. [A number] of the applicant’s [brothers] live in [Country 2] (after living in Venezuela) and [a number] live in [Country 1].
It is accepted that the applicant can speak, read and write in Arabic, English and Spanish; that his highest level of education was completion of secondary school; and that he gained a trade [qualification]. The Tribunal accepts he had largely worked [while] living in Syria until he departed for Venezuela in 2007. It is accepted that the applicant worked in his family’s [business] in Venezuela and that the applicant and his brothers departed Venezuela due to the deteriorating security and economic conditions in that country.
The Tribunal further accepts that the applicant returned to Syria in 2009 while it was safe, and that he returned again in 2012 after he decided to leave Venezuela.
The applicant claimed that he travelled to Damascus in 2012 from the Lebanese border and that he remained in Syria for 10 days. The purpose of this visit was to see if it was safe to return to Syria. The applicant further claimed that he travelled by car and was stopped by the authorities on various occasions to inspect his identity papers and his vehicle. The applicant claimed he returned to his home area within Damascus, [location], which he characterised as predominately Christian, and another family house in the Shi’a Muslim neighbourhood of Damasucus. The applicant claimed that while he was not harmed while in Syria, he feared being harmed in the crossfire between opposing forces in Syria. On balance, the Tribunal accepts these claims as credible.
The applicant claimed that his family’s house in [location] has been seriously damaged by shelling. He was unsure if the house was damaged by the authorities or by ‘fundamentalists’. The applicant said he received this information from his eldest brother. The applicant claimed that all his family have left Syria, although his brother in Lebanon crosses the border to reapply for his temporary Lebanese visa and to check on the family’s assets. On balance, the Tribunal accepts these claims.
Based on these accepted circumstances, the Tribunal accepts that the applicant held a genuine, urgent and deep personally held fear of returning to Syria at the time of lodging his application for protection, due to the deteriorating security situation in that country.
Refugee criterion: forcible recruitment into the Syrian armed forces
Since this review of application has been submitted, the applicant has been given an opportunity to provide documentary and oral evidence to support his written claims that he has a well-founded fear of persecution through military service in the Syrian armed forces.
At the scheduled hearing, the applicant claimed that his family had paid the authorities so that the applicant was not required to complete military service, although he was not sure exactly when this occurred.
When asked what the problem would be with military service or being forced to fight in the Syrian army if the applicant returned to his home country, the applicant admitted he would not be punished as a person who has lawfully been exempted from military service. However, due to the deteriorating situation for the Syrian army over a long period time, the applicant fears the exemption will be discounted and that the applicant would be forcibly recruited into the armed forces as an able-bodied male to fight against the Syrian authorities’ various adversaries. If he resisted or avoided such recruitment, the applicant would probably be arrested, detained and forced to bear arms as a Syrian soldier in a theatre of conflict against one or more of the Islamic fundamentalists or other militarised actors such as Kurdish militias.
In a post hearing submission, some evidence of this exemption attached to a legal submission prepared by the applicant’s representative was submitted: a certified copy of his military book and receipt of payment for deferral of military service from 2010, which shows the grounds for exemption being medical, and an accompanying translation. The legal submission states that the applicant has advised that the medical condition on which he obtained deferral was quite weak, being a very mild case of pectus excavatum, which is essentially a slightly inverted rib cage. The applicant further advised that he was able to obtain the exemption at the time by seeking the assistance of a doctor who was willing to be lenient when assessing his ability to serve. This resulted in a decision favourable to the applicant. Should the applicant be forced to return to Syria, the legal submission argued that the applicant will face real concerns that his medical exemption will be reassessed and not decided in his favour, whereby he would not be precluded from services in the military.
The Tahir Institute of Middle East Policy (TIMEP) issued a briefing in August 2019 regarding the law of conscription in Syria.[13] It relevantly states:
Legal Context: Article 46 of the Syrian Constitution states that “compulsory military service shall be a sacred duty” and that “defending the territorial integrity of the homeland and maintaining the secrets of state shall be a duty of every citizen.” Legislative Decree No. 18 of 2003 (known as the “Military Service Law”) governs the administrative and structural components of the armed forces more broadly.
Prior to the current law, Legislative Decree No. 115 of 1953 formerly governed conscription. Syria’s Conscription Law has been amended a total of 13 times since it was issued—nine times since protests began in March 2011 (2011, 2014, 2015, 2016, three times in 2017, 2018, and most recently, in 2019). As men have left the army or avoided deployment during the war, the Syrian regime has issued separate amnesty laws, including in 2014, 2015, 2016 and 2018, to grant deserters and draft dodgers amnesty from prosecution if they turn themselves in within a set period of time; those who are granted amnesty are still expected to complete their mandatory conscription.
Political Context: Over the last eight years, the Syrian army has lost many of its soldiers to mass casualties, desertion, draft dodging, and defection. Armed forces were numbered at about 330,000 before 2011, and experts now estimate that only 20 to 25 percent of the army remains. The regime has taken a number of steps to make up for its gutted military including launching conscription campaigns, setting up checkpoints across the country to catch those avoiding conscription, arresting men for service, raiding homes to find individuals to forcibly conscript, issuing amnesties to entice deserters and draft dodgers to return, and releasing propaganda content, including a March 2018 video titled “Braids of Fire,” which spotlights voluntary female conscripts in an attempt to “shame” men into enlisting. The regime also continues to rely on external and irregular forces, including but not limited to Hezbollah, Russian, and Iranian Revolutionary Guard Corps fighters
During the war, the regime has kept some conscripts in the army despite the completion of their compulsory service. In July 2019, a social media campaign entitled “We want to be discharged” resurfaced after two years. The campaign, which first appeared in 2017, calls for the discharge of soldiers who had been fighting beyond their required service. There has been no reported demobilization order in response to this most recent campaign, but state media agency SANA previously reported two demobilization orders in 2018. There have also been some reports of men above the age of 42 being called in for service and being kept beyond the maximum age.
Displaced Syrians have expressed significant fears of conscription, particularly as the Idlib offensive continues and as the regime calls in individuals for emergency military service despite promises of amnesty. As recently as late 2018, an order listing 400,000 names—including names that had been cleared for amnesty—was issued. Accordingly, it is very likely that many—particularly those who consider themselves dissidents—may not trust the Syrian regime to honor its promise of amnesty. Furthermore, considering increasing reports that individuals who have been signing reconciliation agreements with the Syrian regime have been forcibly conscripted, or in other cases, arrested, tortured, assassinated, or killed, there are no assurances that returnees will be safe. As host countries begin to consider whether or not to extend their refugee and temporary protection programs amid a determination on country conditions in Syria and as countries consider how to engage with the Syrian regime, conscription is a pertinent theme. With individuals who have signed reconciliation agreements put into the midst of some of the most dangerous battles and conflict zones, it is likely that protracted battles and high casualty counts may continue.
Throughout its implementation, the Conscription Law has led to higher levels of corruption within the military sector. As some conscripts are legally able to pay an exemption fee in order to avoid compulsory conscription, this has allowed corruption, bribery, and discretionary application to rise both prior to 2011 and during the war as well.
[13] TIMEP Brief: Conscription Law, TIMEP, 22 August 2021, >
With no evidence to the contrary, the Tribunal accepts the documentary evidence to be genuine and the general thrust of the applicant’s explanation as to how he came to gain an exemption from military service, and how he was able to enter and exit his country of nationality without the authorities directing him to participate. To the extent the applicant obtained a lawful exemption from military service, he cannot be a person who has unlawfully or otherwise evaded being drafted to train for the armed forces. Accordingly, the Tribunal does not accept that if the applicant were to return to Syria he would be considered by the authorities as having a political, anti-government motive for not participating in military services or for fleeing the country to avoid it or to be a person who opposed or is perceived as opposing the government; nor that having fled abroad, his return would lead to punishment for the criminal offence of draft evasion or desertion.
Military service is reportedly mandatory for Syrian men between the ages of 18 and 42.[14] The applicant is aged 31 at the time of making this decision.
[14] ‘Syrian exiles forced to prop up regime with fees for avoiding conscription’, The UK Guardian, 28 September 2021, >
The Tribunal accepts that the applicant will face a real chance of being subject to an investigation by members of the Syrian authorities as a person of interest who could fight and defend the integrity of the Syrian authorities against a wide range of armed and militarised adversaries. The applicant’s representative has provided country information from the Immigration and Refugee Board of Canada’s article, Syria: Changes to legal exemptions from compulsory military service, including implementation (January – July 2017)[15], which indicates that earlier exemptions can be overturned:
According to the DIS and DRC report, Professor Basel Al-Hassan, a Professor in Political Science at Lebanese American University, in an interview on 3 April 2017, indicated that exemptions for e.g. medical reasons are no longer strictly adhered to and that individuals who have previously been exempted for medical or mental conditions have in some instances undergone renewed medical, physical and mental assessments. The purpose of such assessments has been to identify individuals with minor medical issues who, despite prior exemptions, can be considered fit for either logistical or combat roles. (Denmark and DRC Aug. 2017, 9). In a July 2017 article, the BBC, citing the "Facebook page of the pro-government Damascus Now news website," reports that men exempted on the grounds of poor health "would now be referred to an independent committee" (BBC 5 July 2017).
[15] Canada: Immigration and Refugee Board of Canada, Syria: Changes to legal exemptions from compulsory military service, including implementation (January-July 2017), 18 September 2017, SYR105971.E, available at: >
The submission also stated that the European Asylum Support Office’s Country Guidance on Syria further indicated that medical conditions that were clearly visible were more likely to stand, whereas many medical conditions that in the past would have been reason to obtain an exemption, were now being refused.[16]
[16] European Asylum Support Office, Country Guidance: Syria, Last updated September 2020, Section 2.2, available at: >
Taking this country information about older medical exemptions no longer being applicable to military service in Syria, the Tribunal accepts that the applicant has a genuine and well-founded fear that his medical exemption from 2011 will not prevent him from conscription, if returned to Syria.
It also accepts that the applicant’s well-founded fear amounts to persecution from this conscription and that this will entail being sent to zones of conflict against Islamic fundamentalists, Kurdish fighters and others who threaten the leadership of the Syrian authorities in Damascus and the integrity of Iran. There are certainly reports of draft evaders, deserters and former opposition fighters who have agreed to surrender as a part of a reconciliation deal being conscripted into the armed forces to “endure terrible conditions while serving in the army and have been essentially used as cannon fodder in regime offensives”.[17] There is no reason to not believe that conscripts not subject to criminal sanction or official suspicion would not be treated similarly, given the forces’ inability to maintain sizeable battalions during a civil war. In performing military service, the applicant will face a real chance of being forced to participate in Syrian military activities which will include crimes or acts falling within the scope of the grounds for exclusion of the Convention, such as participating in war crimes and deploying weapons of mass destruction, as set out in Article 12(2) of the Convention or under s.36(1B) of the Act.
[17] The New Arab, Syria Weekly: Idlib under Attack, 11 March 2019, >
The Tribunal has also formed a view that the armed services of Syria place their recruits, forcibly or otherwise, into military operations where the loss of life is at an unacceptable international standard. The Syrian authorities do not take sufficient steps to protect their fighters or to promptly treat the wounded.
The New York Times reported on 30 June 2020 that:
After almost a decade of violence, the Syrian government of Bashar al-Assad has mostly won the country’s civil war, aided by Russia and Iran and their proxies. But with Turkey increasing its own forces inside northwestern Syria, with up to 10,000 troops around Idlib province, a sort of military stalemate has taken hold since March in parts of the country.[18]
[18] ‘At Syrian Aid Summit, a Struggle to Raise Enough to End ‘Downward Spiral’ by Steven Erlander, NYT, 30 June 2020, >
However, the recent history of turmoil in the country means that there is no substantial reason to expect the stalemate will last for the foreseeable future. This will place the applicant into even more frequent and volatile militarised scenarios as a military conscript. The applicant is, furthermore, identifiably Christian: he does not shave, wears a crucifix, and attends Christian services and festivals. Not only would the applicant be placed in parts of Syria where he would encounter extremely violent conditions, it would be coupled with a particular risk of him being targeted by being abducted, tortured and/or killed as a Christian solider, by Islamic fundamentalists opposing the Syrian authorities. The real chance of such significant harm is a particular failure of the Syrian authorities’ capacity to effectively protect its conscripts.
Despite these findings regarding the applicant returning to his country of nationality as a person who faces being conscripted into the military services, the Tribunal is still not satisfied the applicant has a well-founded fear of persecution for any of the reasons mentioned under s.5J(1)(a): nationality, religion, political opinion, race/religion, or membership of a particular social group.
The applicant made claims in the scheduled hearing that he was a conscientious objector to fighting in the Syria war on the basis of being a Christian. Noting that the applicant did not support the Islamic fundamentalists in the Syrian civil war, the Tribunal sought more explanation as to why he opposes fighting. The applicant expounded variously that he was disappointed in the Syrian authorities’ failures to protect Christian communities; and that before the civil war he felt protected but not now, given many of his Christian friends had been killed by fundamentalist Muslims. The applicant claimed that on the one hand, he was not pro-Assad and that he was politically neutral, but on the other he opposed ISIS, al-Qaeda and al-Nusra. He also stated that he feared the involvement of the Iranians and foreign Shi’a fighters in the Syrian army and that he might be forced to fight for a Shi’a fundamentalist cause.
The Tribunal has formed the view that the applicant primarily fears and/or does not want to serve in the Syrian military due to his personal opinion that there is a high likelihood of being maimed or killed as a soldier in that army. Secondary to this, he has lost confidence in the Syrian authorities to protect Christian communities and that participation of the Islamic Republic of Iran consolidates this view that the authorities only want to defend Alawite and Shi’a communities.
The Tribunal finds these motives do not categorise him as a conscientious objector as he would be prepared to serve in a military force in a different context in ‘just war’ of self-defence of his family or the wider Christian community, for example. The Tribunal does not accept he holds conscientious beliefs that do not allow him to participate in any war. Indeed, he does not hold a view that fighting against Islamic fundamentalists is not justified. This does not amount to a generalised moral objection to war or any war against religious or political actors threatening his Christian community.
In Australian law, enforcement of laws providing for compulsory military service, and for punishment for desertion or avoidance of such service, will not ordinarily provide a basis for a claim of persecution within the meaning of the Refugees Convention.[19] This is primarily because it lacks the necessary selective quality.[20]
[19] See e.g. Mijoljevic v MIMA [1999] FCA 834 at [23], referring to Murillo-Nunez v MIEA (1995) 63 FCR 150; Timic v MIMA [1998] FCA 1750. Claims based on objection to undertaking military service have also been raised by asylum claimants in other jurisdictions. In Davidov v SSHD [2005] ScotCS CSIH 51 (Scottish Court of Session, 23 June 2005) Lord Hamilton, delivering the opinion of the Court, observed that the significance (for Convention purposes) of an objection to undertaking compulsory military service had been the subject of legal treatment in the United Kingdom in the recent years preceding that judgment: at [5].
[20] See for example Mpelo v MIMA [2000] FCA 608 at [33]; MIMA v Shaibo [2000] FCA 600 at [28]; Trpeski v MIMA [2000] FCA 841 at [27]; and Aksahin v MIMA [2000] FCA 1570.
Without evidence of selectivity in its enforcement, conscription will generally amount to no more than a non-discriminatory law of general application. While accepting the applicant is an Orthodox Christian, the Tribunal cannot identify that the application of those Syrian laws pertaining to military service are applied discriminately in relation to Syrian Christians.
The mere holding of a political opinion or membership of a particular social group by an applicant facing the prospect of harm (including serious harm) is not sufficient to bring that person within the Convention definition. The Federal Court has fairly consistently held that liability for conscription - even of conscientious objectors - will not of itself found a Convention claim.[21] Consistently with that view, the Court in Mehenni firmly rejected the approach taken in some US cases where it was held that it is enough if a person suffers disproportionately when forced to serve under a conscription law because of his or her religious principles.[22] As French J stated in Aksahin v MIMA, referring to the High Court’s decision in Chen Shi Hai:
The [High] Court expressly approved the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted (par 34). The accident that the particular political or ethnic sympathies of a person may cause him or her to disobey a law of general application, does not render the sanction for non-compliance persecution for a Convention reason.[23]
[21] See Mijoljevic v MIMIA [1999] FCA 834 and cases there cited, cited with approval by Callinan J in his dissenting judgment in Applicant S v MIMA (2004) 217 CLR 387 at [103].
[22] Mehenni v MIMA [1999] FCA 789 at [20]–[21], referring to Canas-Segovia v INS 902 F 2d 717 (9th Cir 1990). The Court observed that that view was based partly on a different view of the Handbook from his own, and also on particular principles of United States constitutional law.
[23] Aksahin v MIMA [2000] FCA 1570 at [25] referring to Chen Shi Hai v MIMA (2000) 201 CLR 293.
In other words, it is not sufficient that there be a nexus between feared persecution and a Convention ground, such as political opinion or religion, if there is no relevant ‘motivation’ on the part of the alleged persecutors.[24] In this case, there is no relevant motivation arising from the applicant’s religious background, or for any other reasons mentioned in s.5J(1)(a), on the part of the Syrian authorities to force the applicant into armed conflict.
[24] Shaibo v MIMA [2002] FCA 158.
The principle that, ordinarily, non-discriminatory application of generally applicable laws does not constitute persecution applies whether or not a particular law is oppressive or repugnant to the values of our society.[25]
[25] See e.g., Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].
In this case, the Tribunal finds that the applicant faces a real chance of being forcibly recruited into the Syrian army but in the absence of any discriminatory practices relevant to the applicant’s circumstances, it finds such recruitment is the non-discriminatory application of generally applicable laws for the purposes of s.5J(4)(a) and (c).
This non-discriminatory application of generally applicable laws does not constitute persecution regardless of whether the particular laws are oppressive or repugnant to the values of Australian society.[26]
[26] See e.g., Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].
Given the findings above, the Tribunal finds that the applicant has neither a well-founded fear of persecution nor a real chance of serious harm on these grounds connected to compulsory military service or forcible recruitment into armed conflict by the Syrian authorities.
In this regard, the Tribunal does not accept the applicant has a well-founded fear of persecution as a conscientious objector to military conscription or forcible recruitment by the Syrian authorities, as required by s.36(2)(a) or s.5H(2).
Complementary protection: forcible recruitment into the Syrian army
Having considering an applicant’s claims about forcible recruitment against the refugee criterion, the decision-maker must then consider those claims, and any of its own findings that leave alive a basis for applying the complementary protection criterion, against the criterion in s.36(2)(aa).[27]
[27] SZRLK v MIAC [2012] FMCA 1155 at [44]. Note, however, that it may not always be strictly necessary for the Tribunal to structure its findings to consider s.36(2)(aa) only after first concluding that s.36(2)(a) is not met. In MZZDC v MIMAC [2013] FCCA 1395 the Tribunal’s findings on complementary protection were concurrent with its refugee findings and the Court did not find any error in that approach: at [26].
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[28] Given the Tribunal has made a finding that the applicant has a ‘real chance’ of being forcibly recruited into the Syrian army and deployed in a theatre of conflict against one of the adversaries of the Syrian authorities, it accepts there is also a ‘real risk’ of such harm.
[28] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same.
The applicant has claimed that he fears that he, as a regular soldier in the Syrian army, will face a real risk of being killed. This claim invites the Tribunal to consider whether the applicant faces a real risk of being arbitrarily deprived of his life under s.36(2A)(a)
This harm is not further defined by the Act but the words ‘arbitrarily deprived’ are to be given their ordinary meaning.[29] While there is no restriction as to who must inflict the harm (apart from it needing to be a party other than the applicant)[30] or why, judicial comments in Australia have suggested that this kind of harm concerns such things as extrajudicial killing and the excessive use of police force, and does not concern the consequences of scarce medical resources in developing countries.[31]
[29] MZAAJ v MIBP [2015] FCA 478 at [6].
[30] See EZC18 v MHA [2019] FCA 2143 at [44]–[45] and [47].
[31] MZAAJ v MIBP [2015] FCCA 151 in obiter dicta comments at [42]. In this case, the applicant claimed the Tribunal failed to consider that he might face arbitrary deprivation of life because of the prospect that he might die as a result of his inability to access dialysis in Sri Lanka. The Court held that the Tribunal, which had considered the claim against the definitions of cruel/inhuman/degrading treatment or punishment, had implicitly found that this did not fall within the concept of arbitrary deprivation of life, and was correct in so concluding: at [40]–[41] (upheld on appeal: MZAAJ v MIBP [2015] FCA 478; special leave application dismissed: MZAAJ v MIBP [2015] HCATrans 238. See also SZDCD v MIBP [2019] FCA 326.
The Complementary Protection Guidelines refer to arbitrary deprivation of life as also involving elements of injustice, lack of predictability, or lack of proportionality and say that the concept of arbitrariness is broader than unlawfulness.[32] The Guidelines provide various examples of circumstances in which potential harm may or may not be characterised as ‘arbitrary deprivation of life’, but emphasise that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are ‘extremely widespread conditions of violence, coupled with a particular risk to the individual in question’ before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.[33]
[32] Department of Home Affairs, Complementary Protection Guidelines, section 3.4.1.1, as re-issued 29 February 2020.
[33] Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.1 (generally) and 3.4.1.2, as re-issued 29 February 2020.
Under s.36(2B) there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that ‘it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm’: s.36(2B)(a). Given the applicant’s earlier exemption from military conscription will be reviewed at whatever point he enters government-controlled Syria, it would not be reasonable for the applicant to relocate to any area within Syria. Furthermore, is certainly unreasonable for the applicant to relocate to an territory where the Syrian government does not control, as the applicant has an appreciable risk of being imputed as pro-Assad leading to significant harm.
Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. Given it is the Syrian authorities who will be placing the applicant at a real risk of significant harm, it is not possible for the applicant to obtain the kind of protection referred to in s.36(2B)(b).
The final qualification in s.36(2B) is that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s.36(2B)(c). As mentioned above, the real risk of significant harm to be faced by the applicant is not one faced by the general population as the applicant faces a particular risk as a forcible recruit who will be considered an able-bodied male of military age in circumstances where the Syrian army is generally unable to protect him from the extremely violent and humiliating deprivation of military service as it is conducted by the Syrian armed forces. The applicant also faces a particular risk as he could be targeted for abduction, torture and/or killing as a Christian solider, by Islamic fundamentalists opposing the Syrian authorities. These kinds of significant harm, which involve the arbitrary deprivation of life, being tortured and being subjected to degrading treatment, are faced by forcible military conscripts and are not generalised to the wider population.
For the reasons stated above, the Tribunal has substantial grounds to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to the Syrian Arab Republic, will face a real risk of significant harm.
Accordingly, the applicant satisfies the criterion in s.36(2)(aa) under the Act’s complementary provisions.
As mentioned above, the applicant cannot avail himself of the protection of any third country.
Conclusion
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Brendan Darcy
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Citations1721346 (Refugee) [2022] AATA 799
Cases Citing This Decision0
Cases Cited25
Statutory Material Cited0
Timic v Minister for Immigration and Multicultural Affairs [1998] FCA 1750Mpelo v Minister for Immigration and Multicultural Affairs [2000] FCA 608