Humanitarian visas allow people facing substantial discrimination or human rights abuses to relocate to Australia.
Our client from Syria was a Christian and previously served in the military during a time of peace. He received a notice ordering that he return to the military to fight in the Syrian conflict.
To escape from his forced military obligations, our client departed illegally from Syria to Lebanon.
We conducted a thorough assessment and review of our clients history before determining that a humanitarian visa was the most suitable option.
Issues considered in the Australian visa application include:
- 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 foreseeable 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 which states –
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.
The application for Humanitarian Visa was approved, and our client now resides safely in Australia.
IMPORTANT NOTICE TO HUMANITARIAN VISA APPLICANTS
Regrettably, we no longer accept clients who require help with a humanitarian visa application. It is unlikely that we can obtain a positive outcome for humanitarian visa applicants who are outside Australia. The number of applications received by the Australian government is far greater than the total number of available visas.
We recommend that all overseas applicants contact their local UNHCR office for assistance. Cases referred to the Department of Home Affairs from the UNHCR are given priority by the Australian government.