1908055 (Refugee)

Case [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,…

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1908055 (Refugee) [2022] AATA 1665
Case
[2022] AATA 1665
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a Syrian national. The applicant sought a protection visa under the Migration Act 1958 (Cth) due to fears of persecution upon return to Syria. The AAT was required to determine whether the applicant had established claims for protection based on his ethnicity, fear of military conscription, and experiences of extortion.

The Tribunal was tasked with assessing the applicant's claims, including his status as a draft evader, his fear of detention and torture by Syrian authorities for failing to serve in the army, and his alleged experiences with extortive practices by a pro-Assad militia. Additionally, the Tribunal considered the applicant's mental health issues, which he attributed to spousal abuse, and his inability to seek protection in Lebanon. The AAT was to apply the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' and relevant country information.

The Tribunal concluded that the matter should be remitted for reconsideration. While the detailed reasons for this decision are not fully elaborated in the provided text, the Tribunal's decision to remit indicates that it found deficiencies in the initial assessment of the applicant's claims or the evidence presented. The applicant's background, including his Alawite ethnicity, his refusal of military exemption, his passport issues related to conscription, and his alleged experiences with the Shabiha group, were all factors to be considered in determining whether he met the criteria for a protection visa. The breakdown of his marriage and resulting mental health issues were also relevant to his claim for complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background 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. 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. The applicant returned to Syria [in] July 2017 before departing for Lebanon after three days. 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. 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. 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. The applicant was interviewed by the Department on 15 September 2018. He was assisted by an interpreter in the Arabic and English languages. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background 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. 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. The applicant returned to Syria [in] July 2017 before departing for Lebanon after three days. 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. 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. 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. The applicant was interviewed by the Department on 15 September 2018. He was assisted by an interpreter in the Arabic and English languages. 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.