SZSFF v MIBP
[2013] FCCA 1884
•22 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSFF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1884 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – claimed failure by the Tribunal to consider or assess the Applicant’s claim for complementary protection – no applicable criteria – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 91R(3), 91X, 424A, 477(2)(b) |
| Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 Vu v Minister for Immigration and Citizenship & Anor (2008) 101 ALD 211 |
| Applicant: | SZSFF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2663 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 21 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an Arabic interpreter. |
| Solicitor for the First Respondent: | Ms K Hooper of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent is amended to read “Minister for Immigration and Border Protection”.
The application for an extension of time as sought in the Application filed on 16 November 2012 and Amended Application on 11 March 2013 is refused.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application and Amended Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSFF.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2663 of 2012
| SZSFF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for an extension of time to seek judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1201263, a decision of Tribunal Member S. Roushan dated 24 May 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court Orders made on 5 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. A referral was made and written advice was provided after the applicant’s conference with his allocated panel adviser. The applicant was granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing. The applicant elected not to file any written submissions or authorities, but instead chose to rely on his oral submissions.
On 27 November 2012 the Minister filed and served a response on which he continues to rely and in which he opposed the grant of an extension of time, on the basis that it is not necessary in the interests of the administration of justice to make such an order: s.477(2)(b) of the Migration Act.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representative. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.
The applicant is a male citizen of Syria (CB 29). On 2 September 2011, the applicant applied for a Protection (Class XA) visa (CB 1). He claimed to fear persecution for reason of his political objections to completing reservist military duties, and his opposition to the Syrian regime, having regard to its treatment of Syrians opposed to it. The applicant claimed to have joined the Australia Syrian Association (“ASA”) in Australia and to have participated in anti-regime activities in Australia (CB 52).
A delegate of the Minister refused the applicant’s visa application on 30 November 2011 (CB 85). The applicant sought review of the delegate’s decision in the Tribunal by application lodged on 31 January 2012 (CB 122). The Tribunal convened a hearing on 16 May 2012, at which determinative issues were traversed (CB 140).
By a decision dated 24 May 2012 the Tribunal affirmed the decision of the delegate under review refusing to grant the applicant a Protection visa (CB 163).
The Tribunal found the applicant was not a reliable and truthful witness at [84] and [94] (CB 181-182, 185) having regard to the inconsistencies in the applicant’s evidence to the Department of Immigration and to it, and other matters it detailed from [85] (CB 182). The Tribunal gave no weight to the evidence of the applicant’s witness on the basis of its inconsistency with the applicant’s evidence and the role of the witness in fabricating evidence concerning the date of the applicant’s request for membership of the ASA (at CB 182-183 at [88]). The Tribunal rejected the entirety of the applicant’s claims at [89] (CB 183). It disregarded the applicant’s conduct in Australia pursuant to s.91R(3) (see CB 183 at [89]).
The Tribunal did not accept that the applicant held views adverse to the Syrian regime and did not accept that the applicant’s being a Sunni Muslim from the Daraa region would give rise to a real chance of harm for reason of an imputed political opinion (CB 184 at [91]). The Tribunal found the applicant’s claims concerning his potential recruitment to the army unreliable and did not accept them (CB 184 at [91]). It further rejected as not credible the applicant’s claims concerning his family members (CB 184 at [93]).
In relation to the complementary protection criterion, the Tribunal observed that s.91R(3) was inapplicable and accepted that the applicant was a member of the ASA and had engaged in some activities including a rally. However, as it was put to the applicant at the hearing, the Tribunal was unable to locate any evidence that Syrian authorities monitor the activities of its nationals abroad or have the means to identify participants in demonstrations who then suffer consequences on return to Syria. The Tribunal was satisfied there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, the applicant faced a real risk of significant harm as defined by s.36(2A) (CB 185 at [97]).
The Tribunal considered the general violence in Syria and found no evidence to suggest the violence the applicant feared was faced by the applicant personally. The Tribunal was satisfied that the applicant feared violence faced by the population generally and not by him personally. The Tribunal found there was taken not to be a real risk the applicant would suffer significant harm in Syria (CB 186 at [98]).
The Tribunal’s findings
In dealing with the applicant’s Convention claims, the Tribunal accepted at [90] (CB 183) that the applicant was a Sunni Muslim from Daraa. It did not accept that on this basis alone the applicant held certain views (opposition to the Syrian regime) or would seek to express them. At [91] (CB 184), the Tribunal did not accept that the mere fact the applicant was a Sunni Muslim from Daraa attracted a real chance of his being harmed for reason of his imputed political opinion.
The Tribunal considered complementary protection from [97] of its Decision Record (CB 185). It first addressed the significance of the applicant’s conduct in Australia. Relevant to the Amended Application, at [98] the Tribunal found:
98. The Tribunal has considered the general violence gripping Syria at present. Other than the matters discussed and dealt with above, there was no other evidence before the Tribunal to suggest that the violence the applicant fears is faced by him personally. The Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Syria.
(CB 186)
Current Proceedings
The Application, filed on 16 November 2012, seeks an extension of time to apply for judicial review of the decision of the Tribunal dated 24 May 2012. The applicant relies on an Amended Application filed on 11 March 2013, which contains one ground alleging a constructive failure by the Tribunal to exercise its jurisdiction.
The orders sought in the Amended Application are as follows:
1. An order that the time for making the application be extended under section 477 of the Migration Act 1958.
2. An order that the decision of the Refugee Review Tribunal dated 24 May 2012 be quashed.
3. A writ of mandamus directed to the Refugee Review Tribunal requiring it to determine the applicant’s application according to law.
4. An order that the respondents pay the applicant’s costs.
5. Such further orders the Court deems fit.
The originating Application contained the following four grounds:
1. The Tribunal misunderstood my fear of going back to Syria and acted contrary to convention and s.91R.
2. I was asked to depart Australia. Today at 2pm I met Sara of International Organisation Migration (IOM). She strongly advised that I should not return to Syria, due to the serious conflicts there.
3. The Tribunal ignored DFAT advice report on Syria and ignored my fear of persecution and ignored my place of residence, Darra, which the army in it turned on Bachar El Assad.
4. The Tribunal failed to rely on accurate information and sources.
The Amended Application contains one ground which states:
1. The second respondent (the Tribunal) constructively failed to exercise its jurisdiction by failing to consider or assess the applicant’s claim for complementary protection in respect of a real risk of significant harm faced by the applicant personally as a Sunni Muslim as a necessary and foreseeable consequence of his being returned to his home district of Daraa, Syria.
Particulars
a. In a letter from his advisor dated 16 May 2012 (CB 156) the applicant claimed and the Tribunal did not reject that:
· The applicant was born in Daraa and is a Sunni Muslim
· Daraa is considered to be where the Syrian uprising began
· Independent evidence confirms that
oThe vast majority of the Daraa population are Sunni Muslims and oppose the regime
oHundreds of anti-regime protestors form Daraa have been executed by the regime forces
· Many political commentators consider Daraa to be the epicentre of the uprising
· The regime inexorably carries out violence against its own people, particularly the residents of Daraa.
b. The Tribunal accepted that the applicant was a Sunni Muslim from (sic) Daraa and that many Sunnis from that region may be opposed to that regime: at RRT [90], CB 183.
c. The Tribunal considered the applicant’s fears in relation to the ongoing conflict and strife in Syria as a whole, (eg RRT [95]), and the general violence gripping Syria at present (RRT [98]) but gave no consideration and made no findings in relation to the conflict in Daraa.
d. Instead the Tribunal limited its findings to whether the applicant feared violence faced by the population of Syria generally and not by the applicant personally (RRT [98]], CB 186) to conclude that complementary protection was excluded in those terms provided by s.36(2B)(c) of the Act.
e. The exclusion from complementary protection provided by s.36(2B)(c), in its own text and construed within the context of the beneficial purpose of s 36(2A), contemplates that a risk may be faced both by a section of the population (rather than the “population of the country generally”) and by an applicant personally such that the exclusion in s 36(2b)(c) does not apply to the real risk of significant harm faced by a claimant which is peculiar to his return to a specific district.
The applicant applied for an extension of time in the Amended Application. The ground for an extension of time is as follows:
The applicant considers it is necessary in the interests of the administration of justice to extend time because:
1. The decision made by the Refugee Review Tribunal was sent to my lawyer. He failed to appeal to the Federal Magistrates Court [as it was then] and wrote to the Minister instead.
The length and explanation for the applicant’s delay
The Application to this Court was filed on 16 November 2012. Any application for review was required to be filed, if within the time prescribed by s.477(1) of the Migration Act, by 28 June 2012. The delay in question is moderate.
The applicant’s explanation for the delay (which has not been advanced by way of affidavit evidence) is that the Tribunal sent its decision to his solicitor who failed to seek judicial review and instead sought Ministerial intervention. It is noted by way of relevant chronology that:
a)The Tribunal made its decision on 25 May 2012 and it sent a copy to the applicant’s representative by letter dated 25 May 2012 (CB 161);
b)By facsimile letter dated 27 July 2012 and transmitted 2 August 2012, the applicant’s representative (the same person who acted for the applicant before the Tribunal) requested Ministerial intervention pursuant to s.417 of the Migration Act. The Tribunal reference number was cited in the request and various claims were advanced (CB 107);
c)The Ministerial Intervention request was acknowledged by letter dated 3 August 2012. The Minister decided not to intervene and notified the applicant’s representative by letter dated 25 October 2012 (CB 118); and
d)The application to the Court was filed on 16 November 2012.
The Substantive Application
It is clear, on a fair reading of the Tribunal’s reasons, that the Tribunal comprehensively rejected the entirety of the applicant’s material claims, for reason of its finding that the applicant was not a credible witness.
The applicant’s amended ground of review alleges a failure to consider a complementary protection claim. Specifically, the applicant argues that the Tribunal failed to consider a claim under the complementary provisions that the applicant faced a real risk of significant harm, personally, because he was a Sunni Muslim and would be returned to his home district of Daraa in Syria. The particulars of this ground refer to a letter at CB 156-159 and the Tribunal’s findings at [90], [95] and [98] (see [46] below).
Applicant’s Submissions
As noted above at [3] the applicant was requested to prepare a short written outline of submissions fourteen (14) days before the date of the hearing. The applicant confirmed that he had not prepared written submissions, but had notes in Arabic which he wanted to have interpreted to the Court as oral submissions. The applicant indicated that he relied upon the Court Book, his original Application filed on 16 November 2012 and the Amended Application submitted on 11 March 2013. He confirmed that he had received the written submissions prepared by DLA Piper Australia and that a colleague had interpreted the contents for him. The applicant then proceeded to address a series of issues in support, initially in respect of the extension of time and then in respect of the grounds of review pleaded in the Amended Application. The majority of the submissions made focus on the reason for the late application for judicial review and criticism of his legal representative who had sought Ministerial Intervention under the provisions of s.417 of the Migration Act.
Minister’s Submissions
In relation to the length and argument for the applicant’s delay, the Minister submits that accepting, as asserted by the applicant, that ministerial intervention was sought in preference to lodging an application to the Court, there is no evidence that the applicant’s representative, apparently a solicitor, was acting otherwise than on instructions from the applicant. Furthermore, the s.417 ministerial intervention request does not adequately explain the entire period of the applicant’s delay. It is generally accepted that seeking Ministerial Intervention is not a satisfactory explanation for failing to lodge judicial review proceedings, but is indicative of a conscious choice to challenge an adverse Tribunal decision by alternative means: see S 58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 451; Vu v Minister for Immigration and Citizenship & Anor (2008) 101 ALD 211.
The complementary protection scheme was implemented by relatively recent amendments to s.36 of the Migration Act: Migration (Complementary Protection) Bill 2011. Section 36 (together with s.65) provides for the grant of a Protection visa to a non-citizen in Australia in certain circumstances, notwithstanding that the Minister is not satisfied that Australia has ‘protection obligations’ to that person under the Refugee Convention pursuant to s.36(2)(a).
Paragraph 36(2)(aa) provides that a criterion for a Protection visa is that the applicant is:
Protection visas
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(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
Subsection 36(2B)(c) of the Migration Act states:
(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:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
It is clear from the language of the statutory scheme that the purpose of the scheme is to introduce a system for considering claims that may engage Australia’s non-refoulement obligation, including those under the International Covenant on Civil and Political Rights (“ICCPR”) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).
The applicant’s amended ground of review alleges, in effect, that the Tribunal erred in its application of s.36(2B)(c) to the applicant’s complementary protection claim founded on the “ongoing conflict and strife” and generalised violence in Syria (see particular (c)). The applicant alleges that the Tribunal did not consider whether the applicant feared violence faced by him personally (particular (d)) and that this was in error of the construction by the applicant in particular (e).
The Minister submits that this argument is immediately answered by reference to the Tribunal’s findings of fact.
At [98], the Tribunal found that “…the Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally…”. That is, the Tribunal was satisfied that the violence feared was violence faced by the population of the country generally and was satisfied that the violence feared was not faced by the applicant personally. The issue of construction identified by the applicant’s particular (e) therefore does not arise.
Nevertheless, the Minister accepts that s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.
The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.
The Minister refers by way of analogy to the jurisprudence concerning the construction of the s.424A(3)(a) exception. Section 424A(3)(a) provides that s.424A does not apply to information:
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
Section 424A(3)(a) is thus phrased similarly to s.36(2B)(c).
A line of authority has suggested that s.424A(3)(a) contained a two part test, requiring information not to be specifically about the applicant or another person and just about a class of persons of which the applicant or other person is a member. However, in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [14] Giles and Conti JJ (with Allsop J (as he then was) agreeing at [21]) found that the subsection should be construed to preclude s.424A obligations arising, except where the Tribunal relies on information specifically about the applicant or another person. The Court thus found that the words “and is just about a class of persons of which the applicant or other person is a member” emphasise how specific the information must be to the applicant (or another relevant person). VHAP was applied by a differently constituted Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 at 586-587. Beaumont J accepted the appellant (Minster’s) submissions that:
64. The provision, as was held in VHAP, imposes one test and does not contain two disjunctive elements; that is to say, the provision is referring to information that is not specifically about an applicant or another person (such as a witness) but is ‘by way of contradistinction about a class of persons of which an applicant or the other person is a member’.
See further QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92, at [1], [2], [26]-[30].
The Minister submits that s.36(2B)(c) should be construed consistently, nevertheless, the applicant’s amended ground must fail in the face of the Tribunal’s factual findings, as discussed above.
Consideration
At the hearing, the applicant explained that a “good friend” of his had orally translated the Minister’s submissions to him. The applicant referred several times to the Minister’s submissions, specifically, in relation to the length of and explanation for his delay in filing in this Court. The applicant argued that the cause of the delay was caused by a lawyer by the name of Sam Issa. The applicant explained that “[h]e did not represent me” (Transcript, 21 May 2013, p. 2.43) and that this lawyer had received an amount of money from him. The applicant stated that he blamed Mr Issa for the delay in filing the application to this Court. The applicant claimed to have met up with the Mr Issa on 21 November 2012, where the applicant asked him to explain the delay. The applicant claimed that Mr Issa admitted that he made a mistake and that he returned some of the money he had received from the applicant.
The applicant claimed to have proof of this repayment, either in the form of a receipt or tax invoice. The document was not attached to any affidavit. The Court asked whether the Minister’s representative, Ms Hooper, had been provided with a copy of the document. Ms Hooper confirmed that she had been provided with a copy but argued that the document did not support the allegation that the applicant made, being that he was refunded an amount of money in acknowledgment of a default on the part of the solicitor. Ms Hooper submitted that if the Court were to admit the documents, it simply does not go to the serious allegation that the applicant has made. Ms Hooper argued that she opposed the tender of the document on the ground of relevance.
The applicant’s explanation for the delay for filing the application was an untested and unsupported allegation of serious default by a migration agent and solicitor. The documentary evidence in the Court Book shows that the individual whose conduct is sought to be impugned had the carriage of the visa application throughout the entirety of the process. The Ministerial Intervention application request (CB 107) states “We are instructed to lodge this submission on behalf of the below mentioned applicant under Section 417 of the Migration Act”. This is followed by a form 956 “Advice by a migration agent/ exempt person of providing immigration assistance” which commences at p.112. At Question 16 of that form, (CB 113) it asks “16. Are you providing assistance with an application process, a cancellation process or specific matter?” The “Specific matter” box is ticked and the detail given is “Ministerial Intervention”. At CB 114 the form appears to be signed and dated by the applicant. There is no suggestion in any of the material of irregularity or default in relation to the solicitor’s conduct. An approach to the Minister under s.417 is not a satisfactory explanation for a delay in lodging an application for judicial review in this Court. This was a choice to attempt to overcome a Tribunal decision by means otherwise than challenging its legality in the courts.
The applicant argued that Syria has been bombed and that there was loss of human life and materials. The applicant also submitted that they, presumably the Syrian government, had detained his daughter and his wife, and to this day he does not know of their whereabouts. I acknowledge the concession made on behalf of the Minister that there would be no prejudice to the Minister were time to be extended. In the circumstances, I believe that this is the appropriate approach in light of the conflict in the material relied upon by the applicant, first concerning the s.417 application which carries his signature approving that approach and, second, the claim that the tender that he is inviting the Court to accept was an acknowledgment of a default on the part of his solicitor. The claimed refund of money which the applicant states is supported by receipts is, in effect, a selection of tax invoices, one of which appears to relate to a Federal Court appeal and a cheque made out to the applicant. I am not satisfied that this material supports the very serious allegation that the applicant is attempting to make. As the applicant is a self-represented litigant, with little or no experience and knowledge of our legal system presenting his case via an interpreter, I do not believe that he fully understands the allegation that he is attempting to advance and the significance of this conflicting material. In these circumstances I believe that it is appropriate to examine the grounds of the Amended Application.
Even though the applicant had appointed a representative, it is not open to the applicant to entirely absolve himself of some degree of responsibility or awareness of what has been occurring in relation to his migration affairs.
I note as a preliminary observation that the applicant, at the commencement of his oral submissions, suggested that he continued to rely on his originating Application as well as the Amended Application. To clarify this position, the original Application contained four grounds (see [18] above). The grounds of the original Application seek merits review as there is no specific allegation of any failure to consider an integer of a claim. To the extent that is broadly alleged, on a fair reading of the Tribunal’s decision I am satisfied that the Tribunal considered all integers of the applicant’s claims. It is noted that the original Application refers to s.91R of the Act, whereas the Tribunal made a s.91R(3) finding and those findings are considered in relation to the Amended Application and require no further comment at this stage. To the extent that the grounds of the Application cavil with the Tribunal’s reliance on country information, that was a matter for the Tribunal and again does not need to be addressed in respect of the original Application. The question of the delay in lodging the application was raised in the original Application and subsequently repeated in the Amended Application which has been dealt with above.
As indicated above, the amended ground of review alleges a failure by the Tribunal to consider a claim under complementary protection provisions that the applicant faced a real risk of significant harm should he return to his home district of Daraa, Syria. The material relied upon to advance this claim is contained in the letter from Firm Stone Associates, Solicitors and Migration Agents addressed to the Tribunal on 16 May 2012 which states:
Re: [SZSFF]
We refer to above matter and submit the following facts and contentions for consideration;-
1. It is contended that out client’s credibility cannot have any bearing on the following cogent facts of their matter;-
· our client is a Syrian national
· he was born in Daraa
· he is Sunni Muslim
· Daraa is considered to be the region where the Syrian uprising began
· the majority of Sunni Moslem population in Syria oppose the current regime
· he is a reservist, having completed compulsory military service in 1997
· he is likely to be called up for military duty as verified by independent evidence
· evidence submitted to Tribunal (CD) conforms that our client
odid participate in the Canberra rallies
oother family members remain in Syria
2. It is further contended that the following propositions cannot be undermined by our clients credibility;-
· Independent evidence confirms that
othe vast majority of the Daraa population are Sunni Moslems and opposes the regime,
ohundreds of anti-regime protestors from Daraas have been executed by the regime forces,
othe Free Syrian Army comprises mainly Sunni resistance fighters,
oreservists are being called up by the regime,
oindiscriminate atrocities are continuing to be committed by the Regime against the Syrian people,
· It is inconceivable that our client who comes from Daraa and is a Sunni Muslim would desist from engaging in all forms of political activities or maintain any political views
· It is inconceivable that out client would be totally disconnected to the plight of his family who remains in Syria and remain oblivious to the ongoing atrocities that are being committed on a daily basis by the regime
· It is inconceivable that our client who is a Sunni Muslim and coming from what many political commentators consider to be the epicentre of the uprising (Daraa) would remain indifferent to the uprising,
· It is inconceivable that due to the very fact that our client comes from Daraa and is a Sunni Muslim, he would not therefore be imputed to having an adverse political opinion.
· It is inconceivable that given the human rights atrocities that are being committed by the regime, that our client would remain silent and not express his objections to the regime in any way, shape or form,
· It is inconceivable that our client would demonstrate no empathy towards the inexorable violence being carried out by the regime against his own people, particularly the residence of Daraa,
· It is inconceivable that a Sunni Muslim, coming from Daraa would maintain no discordance with the slaughter of his own people and abnegate against reservist duties, knowing that he will also be ordered to kill.
· It is inconceivable that the exigent environment our client would not have to desist or significantly curtail expression of his own political opinion as a means of circumventing the adverse attention that he may otherwise attract.
· It is inconceivable that all his relatives living in Daraa or in any other parts of Syria have not either joined the resistance, engage in anti-regime protests or at some point in time had not have come to the adverse attention of the Syrian authorities.
· It is inconceivable that in light of the implacable security crackdown, any acts of defiance perpetrated by any members of his close relatives would not be sufficient to draw adverse attention upon our client.
· Given the state of protracted and all consuming hostility, it is inconceivable that out client’s religious and community allegiance would not be evoked and would therefore be prompted to action.
(CB 156-159)
The claims were addressed by the Tribunal in the following passages:
90. The Tribunal has considered the applicant’s representative’s submission that as a Sunni Muslim from Dara, it is ‘inconceivable’ that the applicant would be ‘totally disconnected’ from what is happening in Dara, that he holds a view adverse to the regime, that he would feel compelled to express his opposition to the regime and that he would not freely join the military. While the Tribunal is prepared to accept that the applicant is a Sunni Muslim form Dara and that many Sunnis from that region may be opposed to the regime, the Tribunal does not accept that on that basis alone the applicant holds certain views or that he would seek to express them. Sunnis Muslims make up 74 percent of Syria’s 22 million population. Not all Allawites support the regime and not all Sunnis are opposed to it. There was no credible evidence before the Tribunal to suggest that all Sunnis in Syria are being subjected to harm and mistreatment at the hands of the Syrian authorities. As it was noted above, the uprising began in March 2011. The applicant submitted his application for a protection visa in September 2011 with the assistance of his legal representative and gave oral evidence to the department on 27 October 2011. It would be reasonable to expect the applicant to have at least made some mention of his views towards the regime. He did not do so until after he sought to fabricate evidence about his political activities in Australia for the purpose of strengthening his claims.
…
95. The Tribunal appreciates the applicant’s fears relating to the ongoing conflict and strife in Syria. As it was put to the applicant at the hearing, the Convention definition of ‘refugee’ does not encompass those fleeing generalised violence, internal turmoil or civil war. In view of the Tribunal’s findings above, there is nothing more in the applicant’s circumstances to suggest that as a result of the pervasive political violence in Syria he would be subjected to persecution for a Convention reason. Having considered the totality of the applicant’s circumstances, the Tribunal is not satisfied the civil strife in Syria gives rise to a real chance of persecution for a Convention reason in the applicant’s case.
…
98. The Tribunal has considered the general violence gripping Syria at present. Other than the matters discussed and dealt with above, there was no other evidence before the Tribunal to suggest that the violence the applicant fears is faced by him personally. The Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Syria.
(footnotes omitted) (CB 183-186)
The complementary protection provisions were introduced to the Migration Act and came into effect on 24 March 2012. The circumstances and the contents of these provisions are addressed by Ms Hooper in her written submissions which are reproduced above at [27]-[30] and the Court accepts these submissions.
A convenient summary of the new complementary protection provision of the Migration Act is contained in what was the then Bill’s Second Reading Speech on 24 February 2011. The speech indicates that the new provision establishes criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under human rights instruments to which Australia is a party:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
The applicant’s claim is that the Tribunal erred in its application of s.36(2B)(c) “… 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:… (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”. In respect of the applicant’s rights to complementary protection based on the “ongoing conflict and strife” and generalised violence in Syria, the claim is that the Tribunal did not consider whether the applicant feared violence faced by him personally, (particular (d)) and that this was an error of construction (particular (e)). I believe that the submissions submitted on behalf of the Minister at [32]-[38] correctly respond to this allegation.
Turning to the “Findings and Reasons” in the Decision Record, the Tribunal Member made the following findings:
94. For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The totality of his evidence shows a propensity to fabricate and tailor evidence in a manner which achieves his own purpose. The Tribunal is of the view that the applicant has manufactured his claims and concocted evidence to achieve an immigration outcome. The Tribunal does not accept that the applicant had any interest in being involved in political activity in the past and has no interest in engaging in opposing or fighting against the Syrian regime or supporting the democracy movement or the Free Syrian Army. The Tribunal does not accept that the applicant would be recalled to serve in the army, that he has a genuine fear of being recalled and that he harbours real genuine objections on political or other grounds to serve in the Syrian army. The Tribunal does not accept that any of his family members have or have ever had any interest or involvement in politics, including opposing or fighting against the Syrian regime as members or supporters of the Free Syrian Army or in any other way. The Tribunal does not accept that the applicant is wanted by the Syrian authorities because of his membership of the particular social group of his family. The Tribunal does not accept that the applicant has been harmed in the past or that, if he were to return to Syria now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, express or imputed political opinion or membership of any particular social group.
95. The Tribunal appreciates the applicant’s fears relating to the ongoing conflict and strife in Syria. As it was put to the applicant at the hearing, the Convention definition of ‘refugee’ does not encompass those fleeing generalised violence, internal turmoil or civil war.3 In view of the Tribunal’s findings above, there is nothing more in the applicant’s circumstances to suggest that as a result of the pervasive political violence in Syria he would be subjected to persecution for a Convention reason. Having considered the totality of the applicant’s circumstances, the Tribunal is not satisfied the civil strife in Syria gives rise to a real chance of persecution for a Convention reason in the applicant’s case.
(footnotes omitted) (CB 185)
The situation in Syria is being described as a civil war. In the footnote to [95] the Tribunal Member notes the High Court decision in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [141] per Gummow J, Gleeson CJ and Hayne J agreeing, where his Honour states:
141. Fifthly, nevertheless it is generally accepted that the Convention definition, based on individual persecution, limits the humanitarian scope of the Convention. The definition does not encompass those fleeing generalised violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention [133]. For example, it appears that in 1986 the number of civilians fleeing their countries of origin by reason of internal armed conflict exceeded the number of Convention refugees [134]. In Applicant A v Minister for Immigration and Ethnic Affairs, Dawson J observed[135]:
“No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. ...
It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them."
(footnotes omitted)
The applicant’s complaint misconceives the operation of s.36(2B)(c). The fear of “serious harm” which is referred to in s.91R(1) of the Migration Act, describes the kind of harm which is capable of sustaining a claim to hold a well-founded fear of persecution if the Protection visa applicant was returned to the receiving country in question. However, in order to invoke Australia’s protection obligations, the feared harm must be harm which the Protection visa applicant fears will be visited upon him by the government authorities of the receiving country for a Convention reason, or by reason of the government authorities failing to protect that person from others inflicting that harm on him for a Convention reason.
The Tribunal then continues its analysis:
97. Section 91R(3) is inapplicable in assessing the applicant’s claims under complementary protection criterion for a protection visa and the applicant’s motives for engaging in certain conduct are not relevant to that assessment. On the basis of the evidence submitted by the applicant, the Tribunal is prepared to accept that the applicant is a member of the ASA and has engaged in some activities, including attending meetings and a seminar, assisting in organising a charity dinner and participating in a rally held in front of the Syrian embassy in Canberra. However, as it was put to the applicant at the hearing, the Tribunal has been unable to locate any information in the sources consulted, including media reports and reports by government and non-governmental organisations, to suggest that the Syrian authorities are monitoring the activities or Syrians abroad, have the means or the ability to identify participants in demonstrations or other activities or that any participation in demonstrations, regardless of the scale, have suffered consequences upon returning to Syria. The Tribunal, therefore, is not satisfied that Syrian dissident activities are monitored by staff members of the Syrian Embassy in Australia and information is relayed to the intelligence back in Syria. Having considered the applicant’s claims, the Tribunal is satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer ‘significant harm,’, as that term is exhaustively defined in s.36(2A).
98. The Tribunal has considered the general violence gripping Syria at present. Other than the matters discussed and dealt with above, there was no other evidence before the Tribunal to suggest that the violence the applicant fears is faced by him personally. The Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Syria.
(CB 185-186)
In the circumstances I am satisfied that this claim cannot be sustained and the application for an extension of time as sought in the Application and Amended Application should be refused with costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 22 November 2013
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