1721346 (Refugee)

Case [2022] AATA 799

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

  1. 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).

  2. 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

  3. 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.

  4. 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.

  5. 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…

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1721346 (Refugee) [2022] AATA 799
Case
[2022] AATA 799
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the delegate of the Minister to refuse to grant the applicant a protection visa. The applicant, an Orthodox Christian born in Damascus, Syria, claimed he would face persecution if returned to his home country. His claims were based on his fear of conscription into the Syrian military, which he stated ran counter to his religious beliefs, and his fear of persecution due to his religious status. He also asserted an imputed pro-Assad political opinion, the general security situation in Syria, the inability of state authorities to protect him, his inability to subsist, and his inability to relocate within Syria to avoid persecution.

The Tribunal was required to determine whether the applicant faced a real chance of serious harm or a real risk of significant harm if returned to Syria, considering his claims regarding conscription, his religion, and his imputed political opinion. The Tribunal also had to consider the general security situation in Syria, the applicant's ability to relocate within Syria, and his inability to relocate to a third country, noting that his residency permit in Venezuela had ceased.

The Tribunal concluded that the matter should be remitted for reconsideration. While the applicant had provided details of his family's circumstances and his movements between Syria and Venezuela, and his arrival in Australia, the Tribunal found that further consideration was necessary. The applicant's claims regarding conscription, his religious status, and imputed political opinion, alongside the broader country conditions in Syria, required a more thorough assessment.

Consequently, the Tribunal remitted the decision for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.