1908055 (Refugee)

[2022] AATA 1665

1908055 (Refugee) [2022] AATA 1665 (14 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908055

COUNTRY OF REFERENCE:                   Syria

MEMBER:Brendan Darcy

DATE:14 April 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 14 April 2022 at 10:02am

CATCHWORDS

REFUGEE – Protection visa – Syria – complementary protection – Alawite ethnicity – subjected to extortive practices by parastatal thugs to run business – draft evader – fear of forced conscription into Syrian army – marriage breakdown to Australian citizen spouse – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36(2)(aa), 65, 499

Migration Regulations 1994, Schedule 2

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 Home Affairs on 25 March 2019 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 the Arab Republic of Syria (Syria), applied for the visa on 12 June 2018. The delegate refused to grant the visa for the reasons outlined in paragraph 22.

3. The applicant appeared before the Tribunal on 8 April 2022 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Levantine) and English languages.

5. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

8. 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).

9. 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–5LA, which are extracted in the attachment to this decision.

10. 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

11. 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

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

13. The applicant, a male, was born on [date] in the Mediterranean port city of Tartous in Syria. A copy of the applicant’s Syrian passport issued [in] 2012 is on the Departmental [file]. The passport expired in 2018.

14. The applicant married a dual national of Australia and the Lebanese Republic (Lebanon) [in] December 2016 in Tartous, after which the applicant and his wife moved to Lebanon. The applicant lodged a combined Subclass 309/Subclass 100 offshore partner visa application on 2 July 2017. At the time of application, the applicant was in Lebanon. Also on file is an untranslated copy of the applicant’s national identity card issued by the Syrian authorities.

15. The applicant returned to Syria [in] July 2017 before departing for Lebanon after three days.

16. A provisional Subclass 309 partner visa was granted to the applicant on 31 August 2017 and he arrived in Australia [in] November 2017. At the time of the hearing, the applicant’s temporary partner visa remained in effect.

17. The applicant validly lodged an application for a Class XA Subclass 866 protection visa on 12 June 2018. Attached to the application was a statement of claims signed by the applicant.

18. There is a letter from the applicant’s general practitioner dated 3 April 2018 indicating the applicant has presented to him with depression, anxiety and post-traumatic stress disorder (PTSD). Symptoms included depressed mood, insomnia, restlessness and nightmares. It is alleged the mental health conditions were caused by the applicant’s spouse abusing him. It further mentions the applicant is being treated with anti-depressants and has been referred for counselling and psychological assessment.

19. The applicant was interviewed by the Department on 15 September 2018. He was assisted by an interpreter in the Arabic and English languages.

20. The applicant’s claims for protection, including those raised at interview, and evidence provided by the applicant in support of his claims are contained in [the department file]. The applicant’s claims for protection are summarised below:

    ·     The applicant claims that he completed his military training in 2002 after two and a half [years]. The applicant has two brothers residing in Syria: [one] brother has a medical disability and is exempted from training and fighting with the army while [another] brother is in the Syrian army and lives with uncertainty on a daily basis.

    ·     The applicant claimed he met his wife (who is the applicant’s distant cousin) in Syria in July 2015 and they were married [in] September 2016. They moved to Lebanon [in] December 2016 as his wife did not feel safe in Syria.

    ·     The applicant applied for an exemption to the Syrian army [in] March 2017 to avoid military conscription as many members of his community were forced into the army. The exemption was refused.

    ·     The applicant travelled from Lebanon to Syria [in] July 2017 to extend his passport. He was advised to do this as his passport was due to expire in 2018. The passport office in Tartous advised him that he could not extend his passport as he was wanted for military conscription. He returned to Lebanon without extending his passport.

    ·     In Lebanon, the applicant and his wife were confined to an Alawite-dominated neighbourhood in Tripoli, Jabel Mehsen. The applicant was not allowed to work and relied heavily on his wife as he was a Syrian citizen.

    ·     The applicant’s partner visa was granted on 31 August 2017 and he arrived in Australia [in] November 2017. The relationship broke down after his wife started to abuse him. His wife threatened to cancel his “residence permit.” He left her house and took out a court order. He suffers from anxiety and depression and has been taking anti-depressants since 1 February 2018.

    ·     From 15 February 2005 to 6 November 2016, the applicant ran a [business] in Tartous. In early 2015, the applicant was approached by a group of men from the Shabiha group (pro-Assad militia associated with state-sanctioned smuggling, extortion and attacks on protesters). He was threatened and had to pay 50,000 lira a month to keep his [business] open.

    ·     The situation in Syria deteriorated over the years. Alawites were disadvantaged by the opposition and by the president who demanded that Alawites fight in the frontline. He lost many friends and relatives in the war.

    ·     The recruitment division of Hamidiyeh had been to his parents’ house asking for him and requesting evidence of his permanent residence in Australia. They explained that there are serious consequences to abandoning a country during a time of war. He has never held a gun and has no desire to hold any weapons, kill or be killed.

    ·     The applicant believes that if he returns to Syria he will be detained, endure physical and psychological torture and ultimately death due to his failure to serve in the army. He fears the Syrian government and is not convinced that his protection will be guaranteed. He cannot live in Syria without fear of retribution as the Syrian government will know that he has returned and will penalise him for his failure to serve the country.

    ·     The applicant cannot seek protection in Lebanon. His brother-in-law advised him that he has cancelled his permanent residency in Lebanon as he has general power of attorney for him. The applicant’s brother-in-law works for the Lebanese armed forces in Tripoli and has strong contacts in Lebanon and in Syria. He too has threatened to destroy his life.

21. On 1 October 2018, the applicant’s representative submitted a number of documents to the Department for its consideration in this matter. These included:

    ·     A partial transcription of the 15 September 2018 interview.

    ·     A copy of the applicant’s boarding passes indicating the applicant travelled from [one country] to Melbourne [in] November 2017 with [name deleted];

    ·     A certified copy of a page from the applicant’s passport with entry and exit stamps indicating he arrived at and departed from Beirut–Rafic Hariri International Airport (RHIA) in Beirut, Lebanon [in]July 2017 and [November] 2017 respectively.

    ·     A statutory declaration dated 26 September 2018 in which the applicant stated that he felt anxious and nervous about the interview and was taking anti-depressant medication and has been seeing a psychologist for six months. He does not believe that all his responses at interview were correctly translated by the interpreter. He also stated that he could not always understand the interpreter’s Arabic dialect, and does not believe that she accurately translated the questions put to him.

    ·     A psychological report dated 31 July 2018 indicating the applicant reported symptoms of depression, anxiety, PTSD, insomnia and panic attacks. It mentions his recent marriage had failed and he reported his former wife to be controlling, physically and verbally abusive and that she threatened to have him deported from Australia to his home country where he has lost family and friends. The applicant’s PTSD diagnosis is based on reported experiences of the Syrian war, and based on his wife’s miscarriage.

    ·     Dated 1 February 2018, a copy of the applicant’s prescription for anti-depressant tablets.

    ·     An April 2018 application for an intervention order submitted by the applicant to seek protection from his wife.

    ·     A September 2018 directions hearing for a family violence complaint at [a] Magistrates’ Court in Victoria indicating the applicant is the complainant.

    ·     A certified copy of the applicant’s Syrian national identity card.

22. A delegate acting on behalf of the Minister refused to grant the applicant a protection visa on 25 March 2019. In refusing to grant the applicant a protection visa, the Tribunal notes the decision record stated:

    According to country information set out above, following the ousting of rebel and IS forces from most areas of southern Syria, the security situation in some government controlled areas has stabilised. In large areas of the country however the security situation remains dangerous with many parts of the country continuing to experience attacks and violence.

    The applicant lived in Syria for over five years after the start of the war. He does not claim that he was harmed during this period. He lived and worked in Syria until he left in December 2016 after his marriage to a dual Lebanese/Australian citizen. After departing Syria, he returned on one occasion and does not claim that he was harmed or prevented from entering or departing Syria during this visit. He resides in an Alawite area controlled by the government. In my view the information does not indicate that he will be at risk of serious harm if he returns to Syria.

23. On 30 April 2019, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. The decision record was attached to the application for review.

24. On 4 April 2022, the Tribunal received a legal submission prepared by the applicant’s representative and a hearing notice dated 12 March 2020 in relation to a family violence complaint. Also attached were two written statements:

    ·A signed statutory declaration dated 5 April 2021 by the applicant’s sister[updating] the Tribunal on his circumstances. The statement mentions a 2019 document listing military deserters was placed in a supermarket in his home village and the list included the applicant’s full name and was witnessed by his family and the local Mukhtar. The applicant also claimed to have engaged a Syrian lawyer who refused to provide written statements or to be a witness in the hearing (although he claimed to be available on the phone for the presiding Member to discuss the applicant’s classification as a draft evader or deserter).

    ·A signed statutory declaration dated 5 April 2021 by the applicant’s sister[outlining] the reasons for his marriage breakdown, that there are false rumours circulating back in Syria that he had sexually interfered with one of her children and claiming her brother (the applicant) strongly opposes the Syrian President, Bashar Al-Assad.

25. In the same set of submissions to the Tribunal was a letter from the Victorian Department of Families indicating it received allegations of potential sexual abuses perpetrated by the applicant. It is dated [July] 2021. The allegations were not substantiated and had been deemed “malicious” by the investigating team.

26. Having been invited to a scheduled hearing for 7 April 2022, the applicant’s representative requested a postponed hearing due to the applicant’s outstanding court matter related to a family violence intervention order. Attached to the request was a letter dated 18 March 2022 from the applicant’s solicitor in that matter and a copy of a letter from the applicant’s general practitioner indicating the applicant lives under considerable stress and is a sensitive person who has never seen his [age]-year-old child. This request was accepted and the hearing took place on 8 April 2022.

    Country information: Syria

27. According to Wikipedia, Syria is officially the Syrian Arab Republic (al-Jumhūrīyah al-ʻArabīyah as-Sūrīyah). A country in western Asia, 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.

28. 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.

29. 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)

1. 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, >

   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 suppress 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

2. 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

3. The applicant married a dual Lebanese/Australian national before arriving in Australia. The applicant has provided written evidence that his marriage to this person broke down in 2018 and that his wife had a daughter after the marriage broke down and that he has no access to this child. His oral evidence at the hearing held on 8 April 2022 included that there has been no reconciliation between the formerly married couple at all and the applicant continues to litigate access to his daughter at the Federal Circuit and Family Court of Australia (FCFCA).

4. Following an interview with the Department, the applicant provided a copy of a Lebanese Residency Permit. According to the translation, the occupation of the applicant is recorded as “husband of a Lebanese-with no work-Lebanese husband”. The document was issued [in] March 2017 and expired a year later.

5. Lebanese authorities have long denied citizenship to non-Lebanese males marrying Lebanese females. This is for the apparent policy rationale that Palestinian non-Lebanese acquiring citizenship in this way would destabilise the religious and ethnic demographics of the country’s sectarian power-sharing constitution.

6. The Tribunal accepts the applicant was a non-Lebanese citizen who was permitted to remain in Lebanon while holding a temporary residency permit on the basis of his marriage to a Lebanese woman, but that permit has long expired. It finds that the applicant did not have any reasonable prospect of gaining Lebanese citizenship after he departed Syria.

7. In the light of these findings and the applicant’s marriage having ended, the Tribunal finds the applicant did not have citizenship of any other country and 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), and that the Tribunal is not required to consider his claims against the criteria under ss 36(4), (5) and (5A).

   Accepted personal circumstances

8. 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.

9. In the context of the finding about the applicant’s overall credibility, the Tribunal makes the following findings about the applicant’s personal circumstances.

10. The Tribunal accepts that the applicant was born in Tartous in [year] as claimed. It accepts the applicant’s father and mother continue to reside in Tartous where his father had been a farmer of grain and vegetables.

11. It accepts the applicant has a sister, who is an Australian citizen and with whom the applicant currently resides, and two brothers both residing in Tartous. It accepts the applicant’s older brother is a full-time soldier or reservist in the Syrian armed forces and that his other brother operates the family farm, as claimed during the hearing.

12. The Tribunal accepts the applicant is ethnically Arab and that he speaks, reads and writes Arabic.

13. The Tribunal accepts that the applicant had long owned and operated his own [business] in Tartous.

14. The Tribunal also accepts the applicant belongs to an Alawite family and that religiously he identifies as Alawite.

15. (Alawites make up a religious minority that mostly live on the Mediterranean coast of Syria and Lebanon. The Alawites make up around 10 per cent of Syria’s population. They are the second most populous religious group in Syria behind Sunni Muslims, who make up 75 per cent of Syria’s population. In the West, Alawites are often presented as an offshoot of Shia Islam. This is often reported as the reason for the relationship between the Shia government in Iran and the Alawi regime in Syria. However, in private, Alawites view themselves as neither Sunni nor Shia, but as a different strand of Islam. The Alawi faith is highly secretive in nature, mainly due to their persecution by Christians, Sunnis and Shias. Because of this persecution, the Alawites heavily practice Taqiya, an Arabic term which refers to denying or dissimulation of religious belief to avoid persecution. To add to their secrecy, Alawite beliefs have never been confirmed by their own modern religious leaders. Taqiya also means that the public face of the Alawite movement has morphed throughout time. To avoid persecution during the Crusades in late medieval times, the Alawites presented themselves as similar to Christianity, while in the Ottoman period they sought to manifest similarity to Sunni Islam.)[13] 

    [13] type="1">

16. It is also accepts the applicant completed schooling at the Australian equivalent of year 8, after which he undertook an [apprenticeship].

17. The Tribunal also accepts the applicant’s claims about marriage to a Lebanese/Australian national to be credible. This includes the applicant’s marriage took place in Syria in 2016; that he and his wife moved to Lebanon as they waited for the applicant’s partner visa to be granted; that the couple endured a miscarriage during their time in Lebanon; and that his marriage broke down soon after he arrived in Australia, as claimed.

18. The Tribunal notes the applicant applied for a protection visa seven months after arriving in Australia. The date of this visa application was around four months after his acrimonious separation from his wife. The Tribunal notes the delegate places much weight on a delay of the protection visa application since arriving in Australia. However, the Tribunal finds the delegate held an overly strident position given the applicant’s application was relatively recent since the separation between him and his then wife.

19. After the interview with the Department, the applicant submitted a letter dated 31 July 2018 from a psychologist. The letter states that the applicant was seen by the psychologist on 17 April 2018. The applicant reported symptoms of depression, anxiety, PTSD, nightmares, insomnia and panic attacks. The letter includes the psychologist’s diagnoses of PTSD, based on the applicant’s reported experiences of war in Syria, his wife’s miscarriage, and the stress he suffered as his marriage broke down. The Tribunal accepts this evidence as credibly reflecting the mental health conditions the applicant is enduring.

    Credibility findings: applicant’s fears of forced recruitment into the Syrian armed forces

20. The applicant has consistently claimed that he commenced and completed a period of 31 months of compulsory military conscription between 2000 and 2002.

21. The applicant claimed that during military training he learned how to drive military assets such as trucks and that he held a role in training others to drive vehicles. He claimed in the hearing that he had not undertaken any weapons training. The Tribunal questioned the credibility of this claim as it would seem the purpose of compulsory military training would be to acquire familiarity with different types of firearms. The applicant insisted that this was the case. The applicant appeared to advance this claim to provide the impression he was a conscientious objector, at least in part, because he was not trained as a genuine soldier or reservist. However, the Tribunal has been unable to locate any country information to support this claim. Given the far-fetched nature of this claim, the Tribunal does not accept the applicant undertook compulsory military training without weapons training. Accordingly, the Tribunal accepts the applicant completed compulsory military training over the period of time claimed and finds that he garnered at least the basics in using firearms in the event he was required by law to be a reservist in the Syrian armed forces.

22. It has also been relevant to the applicant’s claims that he had been subjected to many years of intimidation by a local shabiha gang, in which the applicant was required to pay extorted fees to avoid his business being ruined or personal retribution.

23. (Shabiha or shabbiha, according to a BBC report from May 2012, means ‘ghosts’ and referred to criminal gangs that have developed into pro-regime militia. The report states membership of the shabiha gangs is drawn largely from President Assad’s minority Alawite sect, which dominates the government, security services and military. Many are members of the Assad family itself, and the related Deeb and Makhlouf families. In May 2012, the European Union imposed sanctions on Mr Assad’s first cousins, Fawwaz and Munzir, for their alleged involvement in “the repression against the civilian population as members of the shabiha”.[14] In another 2012 report, PBS NewsHour[15] quotes Paul Salem, a director of the Carnegie Middle East Centre, stating:

    [When] President Assad, who took power in 2000, had presided over “a state that has become a kind of mafia extortion network” in which militias and the businessmen who pay them have grown beyond his control.

    “Bashar is the president but he does not command. In Syria it is not about constitutional authority but about kill or be killed, and Bashar is not the top killer. He’s a prisoner of the presidential palace,” Salem said.

    Yet the shabiha who killed women and children in Houla arrived by military escort. [There was a massacre of over 200 Sunni Syrian men, women and children in Houla and Qbeir in 2011 – added by Tribunal] The defected former army officer said that during his service in the military it was known that Maher al-Assad, Bashar’s much feared hardline younger brother, had established networks of shabiha “to do the regime’s dirty work.”

    “Each group of shabiha is linked to a security officer who takes direct orders from Maher,” he said, suggesting also that the gangs were becoming self-financed from looting and extortion.)

    [14] CX271001: 'Syria unrest: Who are the shabiha?', British Broadcasting Corporation (BBC), 29 May 2021

    [15] Syria: Shabiha Militia Member Tells it Like It is, 15 June 2012, PBS NewsHour, >

    The Tribunal accepts the thrust of these claims about being subjected to extortive practices by parastatal thugs. It is further accepted that the applicant genuinely holds fears, subjectively speaking, of being harmed by the criminal activities, especially extortion, should he return to his home area and re-establish a business.

24. The Tribunal has considered the applicant’s claim that he returned to Syria for a few days in July 2017 to replace or update his passport and to apply for an exemption to be forcibly called as a reservist to the Syrian armed forces. The applicant claimed he was unsuccessful in this regard.

25. Overall, the applicant’s explanations were weak and lacking persuasion. Not least because there was no urgency to replace the applicant’s passport set to expire in 2018. Moreover, it was open to him to apply for a passport at the Syrian embassy in Lebanon as it was an exception to be a reservist. Indeed, if he held a genuine fear of being forced to fight in Syria, he would not have returned to Syria at all, if there had been any doubt about obtaining an exemption. Instead, the applicant provided a far-fetched claim he returned to Syria because his brother in the Syrian army or a friend of his brother had access to the list of the names of draft evaders to be stopped at checkpoints. The Tribunal is aware of externally displaced Syrians in Lebanon briefly returning to Syria, dodging checkpoints along the Mediterranean corridor between the border and Latakia or Tartous. This area is generally secured by the Syrian government and is relatively free from armed conflict. The Tribunal is also aware that bribes to enter and exit checkpoints are not uncommon. Whatever the reasons the applicant returned to Syria in 2017, the Tribunal finds the claimed reasons were not provided credibly.

26. The Tribunal enquired into the reasons the applicant’s brother was recruited as a conscript into the Syrian armed forces during the period between the beginning of the civil war and his departure when the applicant resided in Tartous as [an occupation]. The applicant provided an explanation that the Syrian authorities had a method of calling conscripts based on the year of birth. The Tribunal is unable to find any country information to support this, as discussed in the hearing. A regime experiencing an existential menace of being overwhelmed by the Sunni majority of Syria would not use such an administratively intricate approach to recruiting for its armed forces. The Tribunal does not accept this far-fetched explanation.

27. The applicant also made claims that the recruitment division of an army unit had been to his parents’ house requesting evidence of his permanent residence in Australia. The Tribunal finds this in itself plausible. Asked whether the applicant received any summons or documents for his recruitment, the applicant claimed that the practice in issuing documents to draftees had ceased due to them being used abroad by asylum seekers when seeking protection from destination countries. The Tribunal also finds this explanation plausible.

28. The Tribunal noted further the applicant has advanced claims that his brother in 2017 discovered he was unable to apply for an exemption to be called up as a reservist to fight in the Syrian civil war. The Tribunal noted the applicant was able to return to Lebanon without being intercepted by an official or soldier at checkpoints. Relatedly the applicant has advanced a late claim that his name had been witnessed on a list of draft evaders and deserters on a supermarket wall in 2019. The list was posted in a very public manner, however there is no documentary, including photographic, evidence of such a list. The applicant provided convoluted reasons for no-one photographing the list and then sending an electronic copy to the applicant. One of his explanations include the authorities treating a publicly available list as if it were a classified or protected document or that it was under constant surveillance by the local pro-government mukhtar. However, the Tribunal does not accept either of the implausible and far-fetched accounts from 2017 or 2019 to be credible.

29. The applicant appeared to have advanced these claims because he was required to provide explanations as to the reasons he was not forcibly drafted or recruited for the reservists during the years of conflict that he lived and worked in Tartous and the reasons as to how he was able to enter and leave Syria in July 2017. The applicant also provided some more recent claims since the time of application that he is currently a person of interest as a draft evader or deserter. This is understandable. It may have also been possible the applicant had avoided forcible recruitment when he resided in Tartous during the civil war because a member of the local shabiha persuaded a local military division or an official in the General Directorate for Recruitment not to nominate the applicant as a conscript as the applicant was a source of regular income through extortive practices, which operated in the same way as bribing officials to avoid being forcibly conscripted into fighting for the Syrian armed forces. While the Tribunal speculated about this in the hearing, the applicant expressed he did not know.

30. As discussed in the hearing, advancing these explanations, credible or otherwise, had been understandable.  The salient fact is the applicant is eligible for forcible recruitment as an able-bodied male of eligible age to be called up as a reservist or as a conscript for armed forces facing ongoing and very vicious conflict, should the applicant return to his country of origin into the foreseeable future.

    Refugee criterion: forcible recruitment into the Syrian armed forces

31. Military service is reportedly mandatory for Syrian men between the ages of 18 and 42.[16] There is also country information that the age of military service goes beyond the age of 42 and the upper age limit was 50 years.[17]

    [16] ‘Syrian exiles forced to prop up regime with fees for avoiding conscription’, The UK Guardian, 28 September 2021, SYR104921.E, Immigration and Refugee Board of Canadian, 12. February 2015, Syria: Compulsory military service, including age of recruitment, length of service; occasions where proof of (justice.gov)

32. Whether or not the applicant’s name is on a list of draft evaders or deserters does not diminish the applicant’s real chance of being refused any exemption from forcible recruitment into the Syrian armed forces during a time of violent conflict.

33. The applicant is aged [age] at the time of making this decision.

34. The applicant does not have a real chance of being exempted from such military service in the foreseeable future. He is not the only male in his family; he is not studying overseas: In the year 2020,[18] the Syrian president made changes to the increased cost of bonds for exemptions and outlawing exemption fees for those living in Syria. The applicant and his family are of modest means. The applicant does not have a real chance of affording a one-year bond worth about 10,000 American dollars or a four-year bond of around 8,000 American dollars for living offshore. Should the applicant return to Syria, he will not have a real chance to pay an exemption fee to avoid military service due to the recent changes.

    [18] Syrian President Bashar al- Assad makes big change in military service law, Business Standard, 9 November 2020, >

    The applicant does not have any physical disabilities. The Tribunal notes that the applicant’s significant mental health conditions are being treated. There is no suggestion he has been hospitalised for them or he has been sectioned under a Public Health Act. According to the Danish Country Report on Syria: Military Service issued in May 2020, a person with the condition of insanity would be exempted from military service. However, it has been reported that people inside Syria who had serious mental disorders, but were still serving, included people who were deeply traumatised, such as the applicant.[19]

    [19] Country Report: Syria: Military Services Danish immigration Service, May 2020, >

    Due to the deteriorating situation for the Syrian army over a long period of time, the applicant fears he 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 claimed he 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.

35. Taking into account the information outlined below, the Tribunal accepts the applicant has a genuine and credibly well-founded fear of persecution as a forced recruit into the Syrian armed forces, if he were to return to Syria, both subjectively and objectively understood. That is because 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 leadership against a wide range of armed and militarised adversaries.

36. The Tahir Institute of Middle East Policy (TIMEP) issued a briefing in August 2019 regarding the law of conscription in Syria.[20] 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.

    [20] TIMEP Brief: Conscription Law, TIMEP, 22 August 2021, >

    The applicant’s conscription into the armed forces 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 the Syrian state. There are certainly reports of draft evaders, deserters and former opposition fighters who have agreed to surrender as 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”.[21] 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.

    [21] The New Arab, Syria Weekly: Idlib under Attack, 11 March 2019, type="1">

    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.[22]

    [22] ‘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 in even more frequent and volatile militarised scenarios as a military conscript. The applicant will be imputed with pro-Assad political opinion by virtue of his forced participation in the armed forces. Not only would the applicant be placed in parts of Syria where he would encounter extremely violent conditions, it would be heightened with a particular risk of him being targeted by being abducted, tortured and/or killed as an Alawite soldier or being imputed with holding a pro-regime political opinion, by Islamic fundamentalists opposing the Syrian authorities. The real chance of such serious harm is a particular failure of the Syrian authorities’ capacity to effectively protect its conscripts. The real chance of such serious harm is not by reason of his religion or political opinion, imputed or otherwise, or any other nexus reasons mentioned in s 5J(1)(a) as the essential and significant reasons for that persecution pursuant to s 5J(4)(a).

    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 Syrian war. During the hearing, the Tribunal sought clearer explanation as to why he opposes fighting. The applicant responded that he was not pro-Assad and was revolted by the destruction war has brought about to the Syrian peoples. However, the applicant did not elaborate in any great detail.

    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 assessment 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 Alawite and other 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 a wider Alawite community, such as the neighbourhood in which he was raised, for example. The Tribunal does not accept he holds conscientious beliefs that do not allow him to participate in any war. Indeed, the applicant participated in military training without seeking an exemption. It would be reasonable to expect a person who claims to be a conscientious objector to avoid military conscription, even in times of peace.

    Furthermore, the Tribunal found the applicant’s claims that he would not defend his family because he has no training in weapons to be both evasive and lacking in credibility for the reasons outlined above. The Tribunal accepts the applicant holds a generalised moral objection towards the Syrian state and its leadership and the way the Syrian war has been conducted by the authorities and other parties. It accepts he despairs at the destructive tempest this decade-long conflagration has become for the peoples of Syria. This, nonetheless, does not amount to the applicant being a genuine conscientious objector who opposes any war for ethical and religious reasons.

    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.[23] This is primarily because it lacks the necessary selective quality.[24]

    [23] 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].

    [24] 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 Alawite, the Tribunal cannot identify that the application of those Syrian laws pertaining to military service are applied discriminately in relation to Alawites.

    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.[25] 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.[26] 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.[27]

    [25] 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].

    [26] 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.

    [27] 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.[28] 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.

    [28] 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.[29]

    [29] 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.[30]

    [30] 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 into the armed forces 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).[31]

    [31] 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).[32] 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.

    [32] 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.[33] While there is no restriction as to who must inflict the harm (apart from it needing to be a party other than the applicant)[34] 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.[35]

    [33] MZAAJ v MIBP [2015] FCA 478 at [6].

    [34] See EZC18 v MHA [2019] FCA 2143 at [44]–[45] and [47].

    [35] 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.[36] 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.[37]

    [36] Department of Home Affairs, Complementary Protection Guidelines, section 3.4.1.1, as re-issued 29 February 2020.

    [37] 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, it is certainly unreasonable for the applicant to relocate to a territory 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 mortifying 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 an Alawite soldier, 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 civilian 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

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

Brendan Darcy

Member

ATTACHMENT – 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 of 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 of persecution would not exist if it were assumed that the fear of 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.

…

36     Protection visas – criteria provided for by this Act

…

(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.

…