Case Study 6 - Humanitarian Visa Approved for Syrian Christian
Our client, a Syrian Citizen, was both a Christian and a former member of the Syrian armed forces as part of his compulsory military service completed during a time of peace.
Following the 2011 uprising, he began experiencing and witnessing further discrimination and persecution of Christians in Syria. As a result, his ability to practice his faith openly was put on hold to the unjustifiable killing of Christians.
At one point, he received a government notice advising that he must be prepared to serve in the Syrian military. No one wants to fight in a bloody civil war and our client feared for his life upon receipt of this notice – he has two relatives who were forcibly conscripted into the military during the Civil war who are now deceased as a result.
To avoid military service and death, our client made arrangements to illegally depart from Syria to Lebanon, via Turkey, where he has since contacted our office for help.
Applying for a Humanitarian Visa is never an easy task, and issues we had to consider, include, but were not limited to, the following:
- The Department of Immigration has previously taken the view that procedural fairness as set out in section 57 of the Migration Act does not apply to offshore applicants. However, following the High Court decision in Saeed, the obligation to give procedural fairness now applies in the offshore context and consequentially, to the visa applicant’s submission.
- Section 57(3) states that the section does not apply where a visa cannot be granted in the migration zone, however as disclosed above the High Court case of Saeed v Minister for Immigration and Citizenship  HCA 23 concluded that persons who apply for visas offshore have a legitimate and enforceable expectation that adverse information discovered by the Department of Immigration will be communicated to them for comment before a final decision is made in their matter.
- Concerned with our clients ability to receive natural justice, we brought to the assessing officers attention the Department of Immigration and Citizenship’s Procedure’s and Advice Manual that states ‘Following a line of reasoning by the High Court, the department may be able to revisit a decision where a court would find that it was affected by clear jurisdictional error’. The relevant case which establishes this precedent is Minister for Immigration and Multicultural Affairs and Bhardwaj where revisiting the decision requires the Department’s oversight in taking into account relevant considerations, which in our view would be our clients right to Natural Justice and Procedural Fairness.
- The subjective element of our client’s well-founded fear concerns his state of mind following his departure from Syria which is undeniably a question of fact as it is not possible to fabricate his location at the time of application. The fact our client was displaced from his country of origin cannot be ignored and suggests that his Convention based fear, as described above was subjective based.
- The relevant question is whether our client has a present fear of a risk of harm in the forseeable future.
- In Chan v MIEA Mason CJ observed that real chance conveyed the notion of a substantial, as distinct from a remote or far-fetched possibility of persecution occurring. According to Mason CJ in Chan v MIEA the expression ‘a real chance’: ‘clearly conveys the notion of a substantial, as distinct from a remote chance of persecution occurring… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well founded, notwithstanding that there is less than a fifty percent chance of persecution occurring. This interpretation fills the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin’.
- Once again, in Chan v MIEA it was recognized that persecution may include a variety of forms of social, political and economic discrimination. Justice McHugh in Applicant A v MIEA observed that ‘Persecution for a convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society’. It is well established that the conduct being complained of should not necessarily be directed at our client. The threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, can amount to persecution if done for a Convention related reason.
- An overview of the scope of religion as a Convention ground is described in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status where it is stated:
The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which rights include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance, and
Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practice their religion or belong to a particular religious Community.
The question of whether our client has a well founded fear of persecution for religious beliefs and practices may arise in a variety of circumstances is reflected in the motivation of the persecutor in the current situation in Syria. Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for a particular religious practice.
- An overview of the scope of political opinion as a Convention ground is described in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status where it is stated:
Holding political opinions different from those of the government is not itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions, and
Persecution ‘for reasons of political opinion’ implies that the applicant holds an opinion that has been expressed or has come to the attention of the authorities. There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can be reasonably assumed, the applicant can be considered to have fear of persecution for reason of political opinion, and
Whether a political offender can also be considered a refugee will depend upon various other factors. Prosecution for an offence may, depending on the circumstances, be a pretext for punishing the offender for his political opinion or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.
- It was sufficient for the purposes of the Convention that a political opinion is imputed to our client by the Syrian authorities. In Saliba v MIMA the court held that ‘for convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the Claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion’.
- The term ‘political opinion’ is not limited to our clients membership of a particular political party or support for a political party or its leader, but rather it is enough that our client is believed to hold views antithetic to instruments of government and is persecuted for that reason.
- The Federal Court in V v MIMA observed the following relevant facts in respect of political opinion:
- It is enough that a person holds or is believed to have hold viewed antithetic to instruments of government;
- It is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge.
- Political opinion within the meaning of the Convention is clearly not limited to party politics in the sense that expression is understood in a parliamentary democracy.
Applying for a Humanitarian visa is never an easy task and the help of a highly experienced Migration Agent or Immigration Lawyer will increase your chances of success.
Our client’s Humanitarian visa has since been approved and is now living in Australia with his family.