1903303 (Refugee)

[2020] AATA 3678

1903303 (Refugee) [2020] AATA 3678 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903303

COUNTRY OF REFERENCE:                   Syria

MEMBER:Irene O’Connell

DATE:23 July 2020

PLACE OF DECISION:  Sydney

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

CATCHWORDS
REFUGEE – protection visa – Syria – Federal Circuit Court remittal – no access to third country protection – protection visa grants for wife and children – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91WB

Migration Regulations 1994, Schedule 2

CASES

MIMAC v SZRHU (2013) 215 FCR 35

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 a second review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 July 2014 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Syria, first arrived in Australia [in] August 2013 and returned [in] December 2013 on a visitor visa. He applied for a protection visa on 16 January 2014. Prior to his arrival in Australia he had resided for 20 years in Kuwait as a holder of a Kuwait Residency Permit.

3. The delegate found that the applicant was not owed protection in Australia as the applicant had a right to enter and reside in Kuwait and Lebanon and any country which was a signatory to the Schengen Protocol. As such third country protection was available to the applicant in accordance with s.36(3).

4. The applicant sought a review of the delegate’s decision to refuse him the grant of the visa and on 20 August 2015 the Tribunal (differently constituted) affirmed the delegate’s decision.

5. The Tribunal affirmed the delegate’s decision on the basis that the applicant did not have a well-founded fear of persecution for a Convention reason on return to Syria and therefore did not satisfy s.36(2)(a) of the Act. Nor was the Tribunal satisfied that the applicant satisfied s.36(2)(aa) of the Act; that is, that there was a real risk that he would suffer significant harm on his return to Syria by reason of the complementary protection criterion.

6. As the Tribunal was not satisfied that the applicant was not in need of protection the issue as to whether third country protection was available to the applicant was not addressed.

7. The applicant sought judicial review of the Tribunal’s decision and [in] February 2019 the Federal Circuit Court made orders requiring the Tribunal to reconsider the matter for reason of failure to consider a claim made by the applicant.

   RELEVANT LAW

8. The applicant lodged his application for a protection visa on 16 January 2014. This therefore means that the law relevant to the consideration of his claims is the law which was in force prior to the changes introduced in December 2014 to s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations).

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution which must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she satisfies the complementary protection criterion set out in s.36(2)(aa) of the Act.

    Third country protection

15. Section 36(2) of the Act is qualified by s.36(3) which states that:

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

16. Section 36(3) is however also qualified. Section 36(4), (5) and (5A) of the Act state as follows:

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

17. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    Member of a family unit

18. Section 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations in r.1.12.

19. Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WB. Section 91WB applies to a non-citizen who applies for a protection visa and is a member of the same family unit as a person who has been granted a protection visa. It provides that the Minister must not grant a protection visa on the basis of s.36(2)(b) or (c) (family member of a person granted a protection visa) unless the applicant had applied for the visa prior to the relevant family member being granted a protection visa.

    CLAIMS AND EVIDENCE

20. Evidence before the Tribunal is contained in the Department file, Tribunal file No.1413210 and Tribunal file No.1903303.

21. The Department file contains the applicant’s protection visa application, supporting documentation, a recording of the interview between the applicant and the delegate held on 24 March 2014, written correspondence between the applicant and the delegate and the delegate’s decision record. The supporting documentation includes copies of the applicant’s passports, his marriage certificate and copies of the birth certificates for his [children] born in Kuwait.

22. The Tribunal file (1413210) contains applicant submissions dated 25 June 2015 and 3 July 2017, a recording and a transcript of the hearing at the Tribunal (held on 1 July 2015), and the Tribunal’s decision record dated 20 August 2015. The Tribunal file (1903303) contains submissions received at the Tribunal on 16 July 2020.

    Protection visa claims

23. In his protection visa application, the applicant states that he was born in [year] in Damascus. He speaks, reads and writes Arabic and English. He lists his ethnicity as Syrian and his religion as Muslim. He states that he is married and has [children] who are Syrian citizens but born in Kuwait and currently reside there. He has several siblings living in Syria.

24. He lists [number] years of education including studies at [an educational institute] in Damascus. He states that in 1994 he travelled to Kuwait to work and remained there for 20 years as the holder of a Sponsored Residency Permit. He also held a Schengen visa which allowed him to travel to [named countries] where he worked for short periods of time.  

25. In an attachment to his application the applicant states that his Kuwait Residency Permit expired in [2014] and that he could not return to Syria because of the conflict there. As an Alawite he fears harm from Sunnis and as “there are checkpoints and barricades throughout Homs it is rare you can pass one without being captured and questioned.”

26. He believes that “The fact that I am Alawite decreases my chances of survival making them possibly non-existent … Also the area which I resided in is currently in ruins.” The applicant also states that he refuses to be involved in war and violence and does not wish to be part of the escalating conflict.

    Delegate’s decision

27. The delegate wrote to the applicant (dated 27 June 2014) inviting comment on country information that Syrian citizens can enter and reside in Lebanon. In response (dated 3 July 2014) the applicant stated that this right to enter and reside in Lebanon is a discretionary right subject to the approval of the Lebanese General Security in Beirut and does not meet the standard of a right for the purposes of s.36(3) of the Act.

28. The applicant also stated that even if he could enter and reside in Lebanon he would not be able to avail himself of effective protection; as a Muslim Alawite he would be the subject of sectarian violence from Muslim Sunnis.

29. The applicant states that he cannot return to Syria as circumstances in Syria continue to deteriorate and that as such there exists a real chance that he would face serious harm by reason of his religion and his political opinion as an opponent of the Syrian regime. He also states that he cannot reasonably relocate within Syria to avoid the harm he fears and the state is unable to provide adequate protection.

30. The delegate refused the applicant the grant of the visa on the basis that the applicant did not satisfy s.36(3) of the Act as he had not taken all possible steps to avail himself of third country protection. The delegate noted that the applicant was the holder of a current Schengen visa (valid until [June] 2015). This gave the applicant the right to enter and reside for protection purposes in any of the countries that were a signatory to the Schengen protocol. The delegate also found that the applicant had the right to enter and reside in Lebanon. In addition he also had a right to enter and reside in Kuwait where he had resided for some 20 years with a Kuwaiti Residency Permit.

    Tribunal file 1413210

31. In a written submission (dated 25 June 2015) in response to the delegate’s decision the applicant contends that he does not have a right to enter and reside in a third country. Rather he only has a right to enter and reside in Syria. This is because his Schengen visa ceased [in] June 2015 and he is therefore unable to enter any country such as [named country] which is a signatory to the protocol.

32. In respect to the applicant’s right to enter and reside in Lebanon the applicant contends that the right is discretionary. This is because border security can and do refuse Syrians the right to enter. Further and in any event the applicant would not have effective protection in Lebanon because Alawites are subject to sectarian violence in Lebanon.

33. In respect to the applicant’s right to enter and reside in Kuwait it is stated that the applicant’s Kuwait Residency Permit was sponsored by his employer and as he no longer holds this employment he no longer holds a valid Residency Permit and cannot enter and reside in Kuwait. In addition reference is made to an article from the Express Tribune which states that Syrian nationals are barred from entering Kuwait.

    Tribunal file 1903303

34. The applicant’s adviser made written submission to the Tribunal received on 17 July 2020. Attached to the submission was a statutory declaration from the applicant (undated), a copy of the DFAT Report on Syria (dated 23 October 2017) and the US State Department Human Rights Country Report for Syria 2019. Also provided were translated copies of two death certificates issued in Syria. In his statutory declaration the applicant refers to the death of several members of his family who were residing in Syria.

35. The applicant provides the following relevant statements in his statutory declaration:

    As an Alawite, I am expected to support the war effort, whereas in reality, I persist to remain in a neutral position and refuse to take up arms. I wish to remain neutral and I fear being forced to join the Syrian Military should I return there. Conscripts are considered “cannon fodder'' in the Syrian war effort and are often detained to serve in the military for many years against their will.  additionally, Homs is an area heavily populated by Sunnis who will target me for the sect I belong to. The authorities in Syria cannot offer themselves protection, let alone protect people like me. Checkpoints and barricades continue to exist throughout Homs, resulting in people being questioned and captured. I believe I will be particularly targeted due to my decades of absence from Syria, and because I am a failed asylum seeker and forced returnee.

    Neither Kuwait nor Lebanon can offer me protection. Lebanon only offers limited visas to Syrian refugees, and Kuwait has repeatedly refused to grant visas to Syrians. I have previously provided information to the Department about Syrians in the Gulf Arab region. Syrians in Gulf nations including Kuwait, Qatar and Saudi Arabia have been denied entry. In May 2011, Kuwait implemented a ban on all types of visas for Syrians.

    Many Syrians, especially Alawites, were fired and were forced to return to Syria to find work, or find work in another country, if they were lucky, since the policy against Syrians in Kuwait and other Gulf nations was implemented. Our legal migration status was dictated by our sponsorship by employers.

    The regime in Syria expects that all Alawites support the Assad regime, and those of us who defy it, face even more serious punishment than others. Additionally, Syrian extremists see all Alawites as supportive of the Assad regime and therefore attempt to eradicate us as the enemy. Sunnis constantly call for the eradication of Alawites in Syria.

    Should I be forced to return to Syria, I will be subject to arrest and interrogation, and endure the same suffering and hardship faced by my family since the war began.

    I cannot seek protection from the Syrian government because I will be arrested and questioned by the security forces about my extended absence from Syria, and my failure to show any kind of loyalty or support for the regime, in the manner expected of Alawites.

    Relocation within Syria is not a possibility because of the threats we would face from both the regime and the extremists. I have been outside Syria for twenty years and a return for me would mean imminent and extreme danger.

36. The adviser in his written submission states that the applicant has a well-founded fear of persecution in Syria by reason of his membership of a particular social group described as “Muslim Alawite from Bab Al Turkman Homs”. He also fears harm as he has resided outside of Syria for a considerable period of time and the country information indicates that persons who return from Syria after a long absence are treated with suspicion.

37. The adviser references various case law, legislation and policy in respect to both the refugee criteria and the complementary protection criteria as well as country information. He argues that the applicant would not have effective third country protection in Lebanon because Lebanon’s borders are porous and Syrians’ right to enter is discretionary. Additionally, Alawites are subject to mistreatment in Lebanon.  

38. In his submission the adviser indicates that the applicant’s wife and [children] have been granted protection visas in Australia.

39. On 20 July 2020 the Tribunal wrote to the applicant’s adviser seeking confirmation that the applicant’s immediate family; that is, his wife and [children], were in Australia and were the holders of protection visas.

40. On 20 July 2020 the adviser wrote to the Tribunal and confirmed that the applicant’s wife and [children] had arrived in Australia and applied for protection visas. He provided to the Tribunal a copy of their notification letters granting them protection visas (Subclass 866) on 22 February 2019.

    Country information

41. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has had regard to the DFAT assessment on Syria which is titled Thematic Report on Conditions in Syria (dated 23 October 2017).

42. The Tribunal has also had regard to the report from The European Asylum Support Office (EASO) titled, ‘Syria Internally displaced persons, returnees and internal mobility’ (dated  April 2020) and the Syria Situational Update, from the Country of Origin Information Services, Humanitarian Program Capabilities Branch (dated 17 December 2019) and the US State Department Report on Syria 2019. Relevant extracts of these reports pertaining to the Tribunal’s findings are set out below.

    FINDINGS AND REASONS

1. The Tribunal is satisfied that the applicant is a citizen of Syria. The applicant’s passport, a copy of which is on the Department file, indicates that the applicant is a citizen of Syria.

2. The Tribunal accepts that the applicant’s personal circumstances are as he has described; that is, that he comes from Damascus, Syria, that he is an adherent of the Alawite religion and that he has been absent from Syria for some 20 years working in Kuwait.

3. The Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason should he return to Syria. The Tribunal makes this finding having had regard to detailed country information sourced from the DFAT Thematic Report on Conditions in Syria (23 October 2017), the report from the EASO titled  ‘Syria Internally displaced persons, returnees and internal mobility’ (dated April 2020) and the Syria Situational Update, from the Country of Origin Information Services, Humanitarian Program Capabilities Branch (dated 17 December 2019).

4. The applicant has stated that he fears serious harm should he return to Syria by reason of his religion and an imputed political opinion. The country information as set out below bears out the applicant’s claims and additionally indicates that persons returning to Syria may be targeted by government forces simply on the basis that they are returnees.

5. The country information indicates that Alawites are typically identified as supportive of or at least sympathetic to the government. This makes them a target of rebel groups irrespective of whether they have allegiance to the government. The DFAT Thematic Report on Conditions in Syria (dated 23 October 2017) states as follows:

   3.18 Alawites are mainly located in government-controlled areas, thereby receiving some level of protection. Assad and key figures in the government are Alawites, so the Alawite community is perceived to be closely associated with the government. Despite this, in-country contacts stress that Alawites do not uniformly support the government. The US State Department’s Syria 2016 Human Rights Report stated that the authorities targeted Alawites who opposed the government, including through arbitrary arrest and detention, torture and killing.

   3.19 Non-state armed groups have targeted Alawites for their perceived links to, and traditional support for, the government. Some Islamists have targeted Alawites based on their perceived support for the government and for their religious beliefs, which the (largely Sunni) Islamists consider heretical. A February 2012 attack by ISIL against mainly Alawite areas of Homs caused great concern among the Alawite community, thus achieving ISIL’s likely intent of fracturing the Alawite community’s support for the government, and increasing broader Alawite – Sunni tensions. In May 2016, ISIL carried out two suicide bombings in the predominantly Alawite areas of Tartus and Jableh, killing 154 people and wounding more than 300 people.

6. In respect to the applicant’s fear of harm by reason of an imputed political opinion the Tribunal notes and accepts the country information which indicates that the current scale of of conflict in Syria is such that the mere residing in a particular area under the control of either government or rebel forces brings with it an imputed political opinion. Consequently, individuals are targeted on the basis of their place of residence as they are imputed with a political opinion based of the power which controls their district.

7. The extracted country information from the DFAT Thematic Report on Conditions in Syria (dated 23 October 2017) states as follows:

   Political Opinion (Actual or Imputed)

   3.30 On a communal scale, individuals have been targeted on numerous occasions because of living in an area which is considered to support (or is controlled by) one group or another. Individuals in these areas are subject to direct—if generalised—violence through aerial bombing, shelling, or other indiscriminate forms of attack.

   3.31 The Syrian identity card displays its owner’s place of origin, and individuals are generally perceived (by both the government and non-state armed groups) to support one side over the other based on their place of origin. Car registration can also give some indication of a person’s place of origin. DFAT is unable to assess how this has affected the safety of particular individuals.

   3.32 The government has detained critics and charged them with a range of political crimes, including terrorism. In 2012, the government adopted new counter-terrorism legislation that criminalised almost all peaceful opposition activity, allowing the use of military courts to punish activists. People charged under this legislation have not received a fair trial. The Violations Documentation Centre database includes the names and profiles of over 65,000 individuals detained since the beginning of the conflict. The US State Department’s Syria 2016 Human Rights Report states the government often detains people without charge or trial, and without informing their families. The government denies the extent of detentions and disappearances.

   3.33 Detention of prisoners, both by the government and non-state armed groups, including ISIL, has been associated with human rights abuses, torture, rape and extra-judicial killings. ISIL has used torture and execution of its detainees as propaganda for its cause. In December 2015, Human Rights Watch published a report based on thousands of photographs by ‘Caesar’, a Syrian military photographer, documenting conditions inside government prisons. Amnesty International and the United States government have accused the Syrian government of building a crematorium to cover up the mass killings of detainees in a military prison outside Damascus, in which it reportedly executed up to 50 detainees a day. The victims were reportedly overwhelmingly civilians who opposed the government.

   3.34 A number of government-approved opposition political groups operate in government-controlled areas, mostly under the umbrella of the National Coordination Bureau (sometimes Committee) for the Forces of Democratic Change (frequently shortened to the National Coordination Bureau (or Committee), or NCB or NCC), that have not militarised and argue for a peaceful resolution to the conflict. Individuals in these groups self-censor to avoid crossing known, if unspoken, red lines when criticising the government.

   3.35 In opposition-controlled areas, where application of the rule of law varies widely, the controlling non-state armed group is likely to perceive any opposition as a threat to be met with violence. Armed groups have reportedly targeted people with family members working for the government in other parts of the country, because they are perceived to support the government. The extent of this practice is unknown.

8. In respect to the circumstances of returnees to Syria the following extract from Syria Situational Update, from the Country of Origin Information Services, Humanitarian Program Capabilities Branch (dated 17 December 2019) indicates that returnees may be targeted by the government on the basis that they are a returnee. The report at pages 16–17 states as follows:

   In an October 2019 report, Amnesty International described Syria as ‘one of the world’s most dangerous countries.’ UNHCR has asserted that Syria is not safe for returnees. Fighting and violence continues across large parts of Syria and there is a lack of basic public services and economic opportunities for returnees.

   The situation for returnees and IDPs in regime held areas is one of insecurity and uncertainty. Despite having settled their security assessments with the regime before returning to Syria, refugees are being pursued and arrested. The Syrian regime has stated the act of leaving the country is suspicious and refugees who have returned home to government held areas have disappeared. The regime is also targeting civilians, former opposition militia fighters and their families even in areas that have settlement arrangements.

   Returnees to Syrian regime held areas have high levels of insecurity. This is mainly because of continued arbitrary arrest, forced conscription and the chaotic security situation generated by regime forces and multiple militias.

9. Country information also makes it clear that there is an absence of state protection available to the applicant from the harm he fears and that relocation within Syria is not a viable option. Country of Origin Information Services, Humanitarian Program Capabilities Branch Syria Situational Update (17 December 2019) states at page 1:

   The situation in Syria is still dangerous which limits the ability of effective state protection for the citizens still residing in areas which are rife with violence. Civilians across Syria are subjected to violence and human rights abuses committed by all combatants. This includes targeted bombing of health facilities, kidnapping, arbitrary arrests, torture and displacement. The civilian death toll since March 2011 to September 2019 is recorded at 224,948.89.

10. Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his religion, imputed political opinion and membership of a particular social group, that of returnees, should he return to Syria.

11. The Tribunal further finds that the applicant cannot avail himself of third country protection in accordance with s.36(3) of the Act. At the time of the delegate’s decision the applicant was in possession of a valid Schengen visa which enabled him to enter and reside in a number of countries. That visa has now expired. The Tribunal accordingly finds that the applicant does not have a legally enforceable right to enter and reside in a Schengen country.

12. The Tribunal also finds that the applicant cannot avail himself of the protection of Lebanon. This is because the Tribunal finds even if the applicant can enter and reside in Lebanon the country information (set out below at paragraphs 55 and 56) indicates that there would be a real risk that the applicant would suffer significant harm in Lebanon. As such s.36(4) of the Act applies. 

13. The EASO report titled ‘Syria Internally displaced persons, returnees and internal mobility’ (dated April 2020) states as follows in respect to Syrian refugees in Lebanon:

    3.3 Return of Syrian refugees

    The Syrian conflict has created one of the world’s largest humanitarian crises. UNHCR has registered a total 5 556 732 Syrian refugees, as of 9 January 2020, who fled to neighbouring countries, which includes Turkey, Lebanon, Jordan, Iraq and Egypt.

    Most refugees in neighbouring countries do not live in camp settings, but are located in urban settings across their countries of refuge, relying on cash-based transfers for their livelihood.

    The Syrian government’s consolidated control over larger areas of Syrian territory in recent years has also caused pressure in neighbouring countries to return refugees. Neighbouring countries are facing increased domestic pressure for the refugees to return.

    The international community remains divided on how to tackle the refugee issue, particularly as the fighting decreases. Western countries, including the United States, remain reluctant to the repatriation of refugees, while Russia and Iran are calling for return of refugees to Syria

    3.3.1 Lebanon

    The Syrian refugee crises caused major challenges for the Lebanese government. The country hosts approximately 1.5 million Syrians, of which 914 648 are registered with UNHCR. The refugee situation in Lebanon has had significant implications on the country’s economic and social stability. In addition, foreign aid to Lebanon continues to drop. In 2018, 18 to 22 % of the required aid was received, subsequently forcing agencies like UNHCR to limit its support to the most vulnerable families.

    The refugee issue has further divided the country domestically, where pro-Assad coalitions (Hezbollah, and the president’s Free Patriotic Movement) support return, as they fear that the continued presence of Syrian refugees is likely to tilt the demographic balance, and that could lead to instability. Anti-Assad parties have opposed forced return, projecting the implications return would have on dissents and conscripts.

    In April 2019, Lebanon’s Higher Defence Council, an inter-ministerial body in charge of national defence policy, took the decision to deport refugees who entered Lebanon ‘illegally’ after the date of 24 April 2019. The decision was implemented on 13 May 2019 by the General Security Directorate. More than 2 700 Syrian refugees were deported between 21 May and 28 August 2019, by the General Security Directorate.

    As anti-refugee sentiments continue to grow, Lebanese authorities have restricted refugees’ access to jobs. In June 2019, the Higher Defence Council ordered the destruction of 5 600 structures housing Syrian refugees, deeming them illegal. In 2014, Lebanese authorities imposed an annual fee of USD 200 for refugees wishing to obtain or renew their resident permits. In May 2015, UNHCR suspended the registration of Syrian refugees at the request of the government of Lebanon. In 2017, the Lebanese government took the decision to waive the annual USD 200 fee for refugees that registered with UNHCR prior to 1 January 2015, or obtained their residency at least once in 2015 or 2016. According to Human Rights Watch almost 500 000 people are not registered by UNHCR. The waiver does not, however, include Palestinian refugees from Syria.

    As of February 2019, the Russian Ministry of Defence stated that over 52 000 Syrian refugees had returned from Lebanon to Syria since July 2018. A similar statement was cited by the head of Lebanon’s General Security Directorate, General Abbas Ibrahim, in an article published by Reuters in September 2018. General Ibrahim maintained that the return was coordinated with the Syrian government, whereby list of names were sent to Damascus for approval.

    UNHCR’s July/August 2019 update on durable solutions records a total of 9 676 returns by Syrian refugees from Lebanon during 2019. The number of returnees consists of those monitored or verified by UNHCR. The Lebanese General Security Directorate recorded an additional 484 individuals not known to UNHCR. According to the same source, as of June 2019, the numbers of returns from Lebanon recorded by UNHCR between 2016 and up to 2019 reached a total of 40 230.

14. The DFAT Thematic Report on Conditions in Syria (dated 23 October 2017) sets out similar information on the circumstances of Syrian refugees in Lebanon:

    3.45 As of January 2017, the Government of Lebanon (GoL) estimated that Lebanon hosted 1.5 million displaced Syrians, including 1.01 million registered with the UNHCR, and a further 31,500 Palestinian refugees from Syria (PRS). The GoL has reported that displaced Syrians constitute more than 25 per cent of Lebanon’s population.

    3.46 Sympathetic (predominantly Sunni) communities in Lebanon initially warmly welcomed displaced Syrians. Within its capacity, the GoL provided generous support, including access to health and education services. However, the issue of displaced Syrians seeking protection within Lebanon remains politically, economically and socially sensitive. As the number of displaced Syrians and associated pressures continue to grow, resentment towards displaced Syrians has increased. Some communities see displaced Syrians as creating insecurity by hosting Syrian fighters and attracting retribution from the Government of Syria, while others (particularly those from poorer Lebanese communities) believe they themselves receive little support while donors are providing significant support to displaced Syrians (although support to displaced Syrians more broadly continues to decrease due to limited funding). There is a widespread perception that Syrian refugees have displaced Lebanese workers, particularly in terms of unskilled and low-skilled jobs.

    3.47 Lebanon’s legal stance towards displaced Syrians remains ambiguous and complicated. Lebanon is not party to the 1951 UN Convention on the Status of Refugees and lacks any significant domestic legislation on the issue. In 2003, Lebanon signed a Memorandum of Understanding (MoU) with UNHCR, allowing the organisation to register individuals seeking protection and to conduct protection status determinations in country. The MoU emphasises that Lebanon does not consider itself an asylum country, and that the term ‘asylum seeker’ means an individual seeking asylum in a country other than Lebanon. While technically still valid, this MoU has remained largely unapplied in the context of displaced Syrians.

    3.48 From mid-2014, the GoL started implementing measures to reduce the number of displaced Syrians entering Lebanon. Previously, Syrians were able to enter Lebanon on a six-month residency permit that was renewable for an additional six months, free of charge. As the number of displaced Syrians increased, restrictions incrementally tightened, including the introduction of a $200 residency fee that saw an estimated 60 per cent of displaced Syrians lose their legal status within Lebanon. This fee no longer applies to UNHCR-registered displaced Syrians, but those who have neither registered with UNHCR nor secured a Lebanese sponsor are still required to pay. The GoL has also introduced measures requiring Syrians seeking entry into Lebanon to prove that the purpose of their visit falls within one of six categories – tourism, business, study, transit, short-stay or medical. While the GoL initially indicated that it would continue to allow displaced Syrians to enter Lebanon on humanitarian grounds, in May 2015 it requested UNHCR to cease registration of displaced Syrians pending the establishment of a mechanism that would allow the GoL to approve registration based on certain humanitarian criteria. The border between Lebanon and Syria is now effectively closed to refugees and, as of July 2017, there were no signs that a mechanism to allow displaced Syrians to enter Lebanon would materialise.

    3.49 The GoL implemented a ‘Pledge Not to Work’ for displaced Syrians in 2015. This was subsequently replaced by a ‘Pledge to Abide by Lebanese Law’ which allowed displaced Syrians to work in three sectors which in-country contacts suggest have been traditionally difficult to fill with Lebanese, including construction, agriculture and environmental services.

    3.50 An estimated 60 per cent of displaced Syrians are unregistered, and many lack adequate identity documentation. As a result, many Syrians have been unable to access basic services and freedom of movement is limited (identity documents are required to pass checkpoints).

    3.51 A range of actors opposes the establishment of new camps. Christian (and, to varying degrees, other) groups are opposed to establishing camps for displaced Syrians camps on the grounds that Palestinian camps in Lebanon have become permanent communities, while Hizballah has opposed establishing camps predominantly due to concerns that an overwhelmingly Sunni influx of refugees would shift the demographic balance within Lebanon against its interests. As such, the majority of displaced Syrians live in Lebanese communities or informal settlements, mainly in the Beka’a governorate, followed by the North governorate, Beirut governorate and South governorate.

    3.52 Municipal police forces and local vigilante groups have begun enforcing curfews targeted at Syrian refugees, although such curfews are illegal under Lebanese law. In addition, Human Rights Watch has reported an increasing number of violent attacks by private Lebanese citizens against individuals perceived to be Syrian, and that Lebanese authorities are failing to provide adequate protection in response. (Tribunal’s emphasis)

15. The Tribunal finds that the applicant does not have a right to enter and reside in Kuwait. The Tribunal accepts that the applicant no longer holds a visa for this country and does not have a current sponsor to facilitate acquiring a working visa. The Tribunal accepts that Kuwait is reluctant, as the applicant so states, to issue visas to Syrians.

1. 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 Lebanon, Kuwait or a country which is a signatory to the Schengen Protocol.

2. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and that he satisfies the criterion set out in s.36(2)(a).

3. The Tribunal is also satisfied that the applicant satisfies the alternative criterion set out in s.36(2)(b) of the Act. The applicant is a member of a family unit consisting of his wife and children who are holders of protection visas (Subclass 866) who have satisfied s.36(2)(a) of the Act.

4. The Tribunal notes and accepts that the applicant had applied for a protection visa (Subclass 866) prior to his wife and children applying for and being granted protection visas. As such s.91WB does not apply.

   DECISION

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

   Irene O’Connell
   Deputy Division Head