1415095 (Refugee)

[2016] AATA 3770

1415095 (Refugee) [2016] AATA 3770 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415095

COUNTRY OF REFERENCE:                  Macedonia, Fmr Yugo Rep of

MEMBER:Stuart Webb

DATE:27 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 April 2016 at 3:53pm

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Former Yugoslav Republic of Macedonia (Macedonia), applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] August 2014.

3. On 15 February 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 1 April 2016 the applicant advised the Tribunal that he waived his right to attend a hearing and did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The letter to the Tribunal stated that the applicant would be formally requesting that the Tribunal refer the applicant’s case to the Minister for consideration through his public interest power under s417 of the Migration Act 1958. Further time was requested for making submissions of this nature, which the Tribunal provided.  This matter has therefore been determined on the evidence available to the Tribunal.

4. On 22 April 2016 the Tribunal received a submission from the applicant’s agent. In this submission it stated that the applicant no longer presses his claims for protection. The applicant asked for the Tribunal to consider referring the case to the Minister under s417 of the Migration Act 1958 (the Act).

5. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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. The applicant lodged a previous application for protection that was refused by the Department of Immigration [in] March 2002. This decision was affirmed by the Refugee Review Tribunal on 13 January 2004.  In 2013 the decision of the court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 permitted the lodgement of a further application where a determination of the applicant’s complementary protection claims had not been made.

   The effect of SZGIZ and its relevance to this review

8. Relevantly, in SZGIZ v MIAC [2013] FCAFC 71, (`SZGIZ'), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone.

9. The primary decision record (a copy of which the applicant provided to the Tribunal) indicated that the applicant in this case has previously been refused a protection visa in Australia. The delegate made a decision on both the Convention and complementary protection criteria. The decision on the Convention was beyond their powers, as has recently been confirmed in the Federal Court in AMA15 v MIBP [2015] 1424, which determined that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion. 

10. The visa application under review is a valid application because the applicant is considered `SZGIZ-affected' as he has not left Australia since the final determination of his previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicant has standing to make the application under review to afford hearing of her complementary protection claims. As the applicant has previously had his claims for protection assessed under s.36(2)(a), on the terms of SZGIZ, the Tribunal must confine its consideration to whether he satisfies the requirements of ss.36(2)(aa) and (c).

11. The Tribunal has proceeded to consider the applicant’s claims in relation to the complementary protection requirements of s.36(2)(aa).

    Complementary protection criterion

12. 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 a protection 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 the applicant 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’).

13. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

14. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted.

15. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

16. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

17. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

19. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant provided the following information with his application. He arrived in Australia in 2000. His family were threatened by Albanian rebels in early 2000, the applicant receiving significant harassment. He was told if he fought against them they would harm him and his family. He only served [a short period] in the Yugoslav National Army, and was called up in [year]. The applicant feared he would be arrested and detained, and harmed while being detained, because of his failure to serve in the national army. The applicant also stated he would be imprisoned on arrival because of his failure to serve with the Macedonian army [in year]. His wife in Macedonia (now deceased) told him he had received letters demanding he join, and that they had come to his house. The applicant stated records of this had been kept and still exist.

22. The applicant was interviewed by the Department. The delegate determined that the applicant was [an age]-year-old male from [his home town], Former Yugoslav Republic of Macedonia. He speaks, reads and writes [several specified languages]. The applicant has not returned to the Former Yugoslav Republic of Macedonia since his arrival in Australia. The delegate listed the applicant’s migration history in their decision.  

    [November] 2000          Arrived Australia on [temporary visa]

    [February] 2001 PV lodged

    [Same day]     BVA granted

    [March] 2002     PV refused

    18.03.2002      RRT commenced

    13.01.2004      RRT affirmed

    [February] 2004 Federal Court appeal lodged

    [March] 2004     BVA ceased (UNC)

    [The next day]   BVA granted

    [June] 2005     Judicial review unsuccessful

    [July] 2005      BVA ceased (UNC)

    [2011]   Passport [Number] issued

    [March] 2012     BVE granted

    [May] 2012      PV lodged (nil fee)

    [June] 2013     MI unsuccessful

    [September] 2013        MI unsuccessful

    [September] 2013        PV lodged

    [August].2014    MI unsuccessful

23. The delegate noted that the applicant claimed to have undertaken compulsory national military service in [year range]. He also claimed to have served in the reserves "twice a year until [year]". This is consistent with the conscription laws of the former Yugoslavia of the time. He feared he may be imprisoned or persecuted due to his failure to respond to Macedonian authorities' request for him to enter the army in [year], however he stated that he did not know what the current laws were. At the hearing the applicant stated he was a conscientious objector on the grounds that he did not "want to kill anybody".

24. The delegate noted country information that:

    the Macedonian Defence Ministry's Law of 2003 on Amnesty of Citizens of the Republic of Macedonia Who Did Not Complete Their Military Obligation entered into force on 25 July 2003. Country information indicates that the decree exonerated individuals who avoided their call-up to military service after 1 January 1992, and applied to in excess of 15,000 people.

    and

    the Immigration and Refugee Board of Canada noted that the law:

    ...aims to give amnesty from criminal prosecution to all persons, aged over 27 years on the date the Law is adopted, who have either avoided the call for military service or deserted between 1992 and 2001

25. The delegate noted that the applicant claimed that this was for Albanians from Kosovo. The delegate reiterated the country information and that the law applied to all ethnic groups. The applicant conceded this was possible.

26. The delegate also noted country information that the army had abandoned the conscription system back in 2006 and opted for a fully professional army, which the applicant agreed with. The delegate considered that the applicant’s fear of harm was not objectively founded, given the 2003 Amnesty law.

27. The delegate also noted that in [2011] the applicant acquired a new Macedonian passport. The applicant stated he had ‘attended the Macedonian Consulate in [Australia] to lodge his application, and that he had taken his expired passport with him. I asked the applicant whether the Macedonian consular officials had questioned him about anything, or if he had experienced any problems with them. He claimed that there was a delay in the processing of his application, though acknowledged that his new passport was issued some nine months later’. The delegate noted that this ‘act of applying for and receiving a new passport from the authorities that he claimed to fear did not strike me as consistent with the actions of an individual claiming to have a well-founded fear of persecution’.  The delegate notes that the applicant acknowledged the concerns and offered no argument.

28. The delegate determined that Australia did not have protection obligations to the applicant, or that the complementary protection provisions applied in these circumstances.

    Findings and Reasons

    Country of nationality

29. The applicant claims to be a citizen of the Former Yugoslav Republic of Macedonia (Macedonia) and provided a copy of his passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Macedonia, and that Macedonia is his receiving country for the purposes of complementary protection.

    Third country protection

30. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Claims

31. The Tribunal notes that the applicant has stated that he is no longer pressing his claims for protection and wishes the matter to be referred to the Minister for consideration pursuant to s.417 of the Act. Section 417 confers a power to the Minister to substitute for a decision of a review tribunal a decision that is more favourable to a person, if the Minister thinks it is in the public interest to do so. The power exists only when there is an appropriate existing decision in the case. Accordingly, despite the statement of the applicant that he is no longer pressing his claims for a protection visa, the Tribunal is required to assess the applicant’s claims and make a decision as to whether Australia has any protection obligations.

32. The applicant’s claims arise from his fear on return to Macedonia due to his failure to serve in the Yugoslav National Army in [year] and the Macedonian National Army in [year] when requested. The applicant refused to fight against the Albanian rebels, fearing reprisal for him and his family. The delegate considered the claims of the applicant as a conscientious objector.

33. The Tribunal notes that the country known as the Socialist Federal Republic of Yugoslavia (Yugoslavia) no longer exists. 6 constituent Republics, SR Bosnia and Herzegovina, SR Croatia, SR Macedonia, SR Montenegro, SR Slovenia, and SR Serbia made up the Federal Republic. Serbia also contained two Socialist Autonomous Provinces, Vojvodina and Kosovo. In the 1990s the Federal Republic broke up as an entity, as a number of the separate Republics sought independence. Fighting between the various Republics occurred. Macedonia peacefully seceded from Yugoslavia in 1991 and celebrates 8 September 1991 as Independence Day.

34. In the late 1990s the autonomous province of Kosovo erupted into violence between the ethnic Albanian and ethnic Serbian populations. Macedonia was drawn into the war when an estimated 360,000 ethnic Albanian refugees from Kosovo took refuge in the country. Although they departed shortly after the war, Albanian nationalists on both sides of the border took up arms soon after in pursuit of autonomy or independence for the Albanian-populated areas of Macedonia.

35. Wikipedia states that:

    A conflict took place between the government and ethnic Albanian insurgents, mostly in the north and west of the country, between February and August 2001. The war ended with the intervention of a NATO ceasefire monitoring force. Under the terms of the Ohrid Agreement, the government agreed to devolve greater political power and cultural recognition to the Albanian minority. The Albanian side agreed to abandon separatist demands and to recognise all Macedonian institutions fully. In addition, according to this accord, the NLA were to disarm and hand over their weapons to a NATO force.[1]

    [1] Republic of Macedonia

36. The applicant’s claims regarding his call-up for national duty revolve around this period. The Tribunal notes that the Yugoslav National Army no longer exists, given the break-up of that country. Given that this state and army no longer exists, the Tribunal does not accept that the applicant has any real risk of significant harm arising from his refusal to join this army in [year].

37. The Tribunal notes that the applicant has claimed that he also refused to serve with the Macedonian army in [year] and that he had a conscientious objection to fighting. The applicant provided the Tribunal with the decision of the delegate. The delegate’s decision references country information regarding the treatment of Macedonians who refused to respond to the Macedonian government’s military call-up during [year]. The Tribunal has reviewed the country information cited in the delegate’s decision. The Tribunal considers this country information as detailed in the delegate’s decision remains valid and has not been superseded. The information demonstrates that those individuals who chose not to respond to the call-up for military service had been provided with an amnesty by decree on 18 July 2003.

38. Relevantly this decree states:

    This law exempts from prosecution, discontinues the criminal proceedings and fully exempts from execution of the sentence to imprisonment (hereinafter: amnesty), citizens of the Republic of Macedonia, who are above 30 years of age (hereinafter: persons), for whom there is a well founded suspicion that until the day when this law entered in the force have committed criminal acts pursuant to not responding to an invitation and evading the military service and arbitrary departure and flight from the armed forces.[2]

    [2] The former Yugoslav Republic of Macedonia: Law of 2003 on Amnesty of Citizens of the Republic of Macedonia Who Did Not Complete Their Military Obligation [The former Yugoslav Republic of Macedonia ],  25 July 2003, available at:

1. The Tribunal notes that the applicant was born in [year] and was over 30 at the time of this decree.

2. The Canadian IRB information further reflects this information. As the decree states, this affects all citizens of the Republic of Macedonia.

3. The Tribunal considers that this decree is relevant to the applicant’s circumstances, that he would not face prosecution for his decision to refuse join when called up to the military in [year]. The Tribunal considers that the provisions of this decree apply to the applicant. The Tribunal considers that the applicant will not be prosecuted for his conscientious objection to fighting and his failure to attend when required in [year]. The Tribunal finds that the applicant will not be prosecuted for these reasons, and that he will not be detained or harmed for this reason on return to Macedonia. The Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.

4. The Tribunal also notes the country information that conscription has ended in Macedonia as it has established a standing army of professionals and volunteers. The Tribunal does not consider that the applicant, [age] years old, will be conscripted to the Macedonian army on return to Macedonia.

5. The Tribunal notes that the applicant has sought and received a new Macedonia passport in [2011]. As discussed in the delegate’s decision, the applicant stated he wanted some formal documentation. The delegate discussed with the applicant the concern that the seeking and issuing of this passport, along with his legal departure from Macedonia in 2000, led to a conclusion that the applicant was not of interest to the authorities. The delegate noted provisions of the UNHCR Handbook for determining Refugee Status regarding passports.

6. The Tribunal considers that the applicant’s willingness to seek to replace an expired passport from his Consulate in [Australia] demonstrates that the applicant has limited subjective fear from the authorities of his country. Further, the issuing of the passport demonstrates that the authorities of Macedonia have limited interest in the applicant.

7. The applicant has not attended a hearing to raise any new claims or discuss these issues further. The Tribunal considers that the country information referenced in the Tribunal and Department decision is clear with respect to the applicant’s circumstances on return to Macedonia as a conscientious objector to fighting and his failure to attend when called up, that he would not face a real risk of significant harm for these reasons.

8. Further, the applicant’s subsequent actions in Australia availing himself of the services of his Consulate and having a new passport issues demonstrate that he has no subjective fear from the authorities of Macedonia.

9. The Tribunal has considered the criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    Ministerial Referral

11. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

12. The Tribunal notes that new guidelines were published on 29 March 2016 regarding the exercise of the Minister for Immigration’s public interest powers under ss.351, 417 and 501J of the Migration Action 1958.

13. The guidelines are now underpinned by ‘intervention principles’ including the Minister’s expectation that people not granted a visa through the statutory process will depart Australia and will continue making arrangements to depart while their intervention request is being considered.

14. The types of cases considered inappropriate for consideration have been broadened to include people found not to satisfy a fraud-related Public Interest Criterion and persons who have had a visa cancelled or refused based upon a breach of visa conditions.

15. Cases that should be brought to the Minister’s attention include unique or exceptional circumstances. A list of matters for possible consideration include strong compassionate circumstances which would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit; compassionate circumstances regarding the age and/or health and/or psychological state of the person; exceptional benefits for Australia; length of residence in Australia or if international obligations may exist.

16. The presumption that the Minister will consider all matters referred to him by the Tribunal no longer applies. Instead, the Department will assess the circumstances of each case referred by the Tribunal and only refer to the Minister those which meet the new guidelines. Cases assessed as not meeting the guidelines will be finalised by the Department without the Minister’s consideration.

17. The applicant provided the following submissions for consideration.

18. The applicant had a wife and adult children in Macedonia, but due to his extended residence in Australia he lost contact with his former wife. His wife in Macedonia passed away. He met an Australian woman in 2007, [Ms A], and began to develop their relationship. They married [in] 2010, and the applicant became an effective part of [Ms A’s] family, welcomed by his wife’s children and grandchildren. The applicant was a paternal figure for [Ms A’s] [grandson], who was parented solely by his mother, [Ms A’s] daughter. He has a very close relationship with [this grandson].

19. [Ms A’s] [health] began to deteriorate, leading to mobility issues. She has been unable to drive. In June 2013 she had [surgery].

20. The applicant has made a number of previous applications for intervention. In 2012, after the wedding, the applicant sought Ministerial intervention under s417. It was refused in June 2013. A further intervention request on this ground due to the illness of [Ms A] was lodged in 2013 and again refused.

21. As the applicant had arrived in a [temporary] visa subject to condition 8503 – No Further Stay, the applicant was precluded from lodging a Partner visa. In March 2012 a request to waive this condition was lodged, contending that the applicant had compelling and compassionate factors arising from the relationship and family ties. This request was refused.

22. It was noted that the Ministerial guidelines state that it would be inappropriate to consider cases where:

    the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

23. It was submitted that in this instance a request to waive condition 8503 had been made and refused, so this provision was not relevant in this situation.

24. It was submitted that new substantive issues had been raised, that they were serious and there were significant psychological and associated hardship and harm which may follow to Australians in the absence of an intervention by the Minister. It was submitted that this was an appropriate matter for the tribunal to refer to the Minister is consideration is a ‘repeat request’.

25. The submission stated that there was new information that provided the basis for this new request for Ministerial intervention. The submission highlighted the PAM3 guidance on unique and exception circumstances that there were:

    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident[3].

    [3] Bolding in original

26. It was stated that the applicant had been in Australia since 2000 and had fully and comprehensively integrated into the Australian community. He is psychologically vulnerable and prone to depression. It was also submitted that serious harm, ongoing and irreversible harm and continuing hardship to 2 Australian citizens would exist if the strong compassionate circumstances involved in this case was not recognised. The submission referred to [Ms A] and the applicant’s niece [Ms B].

27. With respect to the relationship with his wife, it was stated that the applicant had been married for well over five years and that it was a genuine long-standing relationship. Documentary support of the relationship was provided, including joint bills and correspondence. [Ms A] provided a statement, attached at Appendix A. Numerous photographs of the applicant and his wife were provided, as were supporting Form 888 statements by people who know the applicant and his wife. From the information before the Tribunal it would appear that the applicant and [Ms A] have a genuine relationship that may entitle them to a partner visa, should they apply for that visa (either onshore or offshore). The merits of that application is not for this Tribunal to determine.

28. Information was provided regarding [Ms A’s] emotional dependence and pragmatic reliance on the applicant. It was submitted that she could not cope without the applicant’s presence and that her anxiety and stress levels would increase if he was forced to depart Australia to lodge a partner visa offshore. The report from a psychologist stated that [Ms A] reported significant difficulties. A letter from her treating GP detailed ongoing physical and medical issues. [Ms A] is limited in her driving capacity and relies on the applicant in that regard, and suffers from a number of medical issues and relies on the applicant promotional and practical support in many areas. The diagnosis of [a condition] was made by the psychologist[4].

    [4] Medical reports found at AAT Folios 257 - 265

29. It was submitted that these medical grounds provide the strong compassionate circumstances this not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen. [Ms A’s] health would significantly deteriorate should her husband be forced to leave Australia.

30. It was noted that if the applicant was required to leave Australia, he would need to apply for a partner visa offshore. The averaging processing time to finalise partner visa applications for a Macedonian citizen is 12 months. [Ms A] would be left to fend for herself physically pragmatically and emotionally during this time. It was further submitted that given [Ms A’s] current mental state it would be unreasonable to force her to relocate to Macedonia with our husband.

31. It was submitted that the applicant’s niece, [Ms B], has a very strong relationship with the applicant. A letter from [Ms B’s] mother, the applicant’s sister-in-law, attached at Appendix B, details this relationship. [Ms B] has [a health condition] and is very attached to the applicant. The applicant has travelled to [City 1] on a number of occasions in order to maintain the relationship with [Ms B]. He has provided her with emotional strength and guidance, in particular during current legal proceedings [regarding] [Ms B]. Evidence of the proceedings were provided to the Tribunal. It was submitted that the applicant was very important to his niece’s well-being. It would submitted that this gives rise to compassionate and compelling circumstances as [Ms B], an Australian citizen, stands to lose a great deal of love and support during a deeply challenging period in her life, should the Minister not intervene.

32. It was submitted that the applicant’s own psychological health as relevant as his departure from Australia, given his extended residence in Australia, would have a significant and detrimental impact on his mental state. A letter from a psychologist confirms that the applicant is currently prescribed [specified medications] for symptoms of [specified conditions].

33. It was submitted that it was in the public interest for the Minister to intervene in this case, given the obvious and genuine needs of the psychologically vulnerable Australian grandmother and a young woman with [the health condition] has been the victim of a [crime].

34. The Tribunal notes that the applicant has previously applied for Ministerial intervention with information pertaining to his relationship to his wife and her health issues. The applicant has provided in this submission further details as to his wife’s health concerns, the further deterioration of her health and concerns for her in his absence, should he be required to go offshore to lodge a partner visa application.

35. While the information regarding the health circumstances for the applicant’s wife is concerning, the Tribunal does not consider that these are new. Rather this information is in the nature of updated information about the health issues [Ms A] faces, and appraisals by a treating team that the best interests of [Ms A] is for a stable future, with the applicant remaining to assist. Further, while the health issues of [Ms A] are well explained, that she has health issues does not constitute unique or exceptional circumstances. The Tribunal appreciates that the applicant provides emotional support, and is a person who provides assistance for [Ms A] in her daily affairs. That the applicant does this obviously assists in both an economic and personal manner. But the fact that [Ms A] is unwell and needs assistance does not make her situation unique or exceptional.

36. The Tribunal has considered the circumstances of the applicant’s niece. The Tribunal appreciates the close relationship the applicant has formed with his niece over time. However as described it cannot be stated as a dependency. The applicant’s niece is a vulnerable young woman who is going through a trying time, and has a number of people supporting her, including the applicant, by phone from [City 2] to [City 1]. The applicant has spent some time in [City 1], as detailed in his sister-in-laws statement.

37. The Tribunal accepts that if the applicant is required to leave Australia, for the purpose of lodging a visa offshore, he will not be able to maintain the in-person personal support for his niece. However as occurs at present, the relationship primarily relies on telephone communication. There is nothing preventing such communication with his niece during the application period if the applicant is offshore. The Tribunal again does not consider that the situation is unique or exceptional.

38. The Tribunal notes and appreciates the significant work done by the applicant, his wife, family and agents in preparing and submitting this request for referral to the Minister. As detailed in the statements below, some very personal information and requests have been made by people close to the applicant. The Tribunal has included them because of the importance of these statements. The Tribunal acknowledges that the agent, in the manner they have conducted themselves in the review process of the Tribunal, has ensured that no undue waste of resources or delay has occurred. The Tribunal appreciates the assistance provided by the agent in the way this matter has proceeded.

39. The applicant has provided materials to support his circumstances which state that he has a compelling and compassionate case. These submissions have been, in the view of the Tribunal, well laid out by the agent, who obviously has a positive ongoing relationship with the applicant and his supporters. The Tribunal considers that in the circumstances, the most appropriate step is for the agent to prepare the Ministerial application and clearly outline how the Ministerial Guidelines are addressed, in all the circumstances.

40. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

41. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Stuart Webb
    Member

    
    

    Appendix A

    Statutory Declaration of [Ms A]

    1.My name is [Ms A] and I am married to [the applicant]. I met [the applicant] at his [birthday] party on or [in] 2007. We married in a Macedonian ceremony held [in] 2010. Long before we married, [the applicant] had become a fundamental and special part of my life. He became involved in my family, particularly as a father figure to my [grandson]. I have a [daughter] who is [age] years old and who separated from [this grandson’s] father when [he] was an infant.

    2.Since we married, [the applicant] has only become more and more important to me. I am a citizen of both Australia and [another country] and came here as a migrant in about 1996. [The applicant] is a citizen of Macedonia. We speak a combination of [Language 1] and Macedonian together. I speak both [Language 1] and [Language 2] and [the applicant] speaks Macedonian, some [Language 1] and some [Language 2]. We share a bond that I have never shared with anyone else. We are both divorced and this is the second marriage for both of us but I could not love him anymore than I do.

    3.It is particularly important to me that [the applicant] has been such a dedicated and loving husband since we married in 2010. My previous husband was unfaithful to me and our relationship did not end well. This was a humiliating and deeply upsetting time for me. However, it has made me appreciate the unique bond that [the applicant] and I share.

    4.I feel that I am now not in a position to cope without my husband's presence. In 2013 and 2014, I needed [surgery]. I was very dependent on my husband around that time as I could not drive. Last year, I broke my foot, and could not walk or do anything for about six weeks. [The applicant] was a lifesaver during that time. He did all of the cooking and cleaning and took care of me. He helped me shower every day. When I took the plaster off, I then had to wear a plastic boot for five weeks. I do not know how I would have got through this without him.

    5.Last year, we were living in a house which was next door to a [business] and two men broke in to our house. This was at three am and they broke our security door to get in the house. When they realised that there was a man in the house, they ran away and did not enter the premises. I fear that if he [the applicant] had not been there, I could have been raped or beaten. I still have nightmares about this. We were sleeping and [the applicant] got up and scared them away. This was a traumatic experience for me and I have not felt truly safe in the same way since then.

    6.I am [age] years old and I love my husband very much. He cares for me and supports me. He drives me many places, even now, as I am too nervous to drive and do not feel capable. In October 2014, I was involved in a car accident with my [daughter]. Since that date, I have felt too stressed to drive on the freeway or in areas I do not know.

    7.I feel that without him, I would not be able to cope with the daily challenges present in my life. For the last two or three years I have been particularly stressed and anxious about the possibility of [the applicant] being forced to leave Australia. I cannot imagine living here without him for over a year; without his kindness and ongoing support. I am afraid of living alone following the attempted break-in last year. I already feel depressed and anxious all the time about the thought of us separating for a year. I believe that I would simply not cope if he was forced to depart Australia.

    8.However, I also cannot go to Macedonia to wait with him during the processing of an offshore Partner visa application, My [children] and grandchildren are in Australia. I have a mortgage and I make regular repayments towards it. I work as [occupation] to maintain my repayment schedule. I cannot to take a year away from my job. My finances are strained as it is. I would struggle to even afford to take one trip to visit him.

    9.I have realised that the stress has become too much for me recently and I have been to see my general practitioner about my feelings of distress related to the possibility of [the applicant] having to leave Australia. I am having difficulty sleeping, I feel worried all the time and both highly anxious and also very sad at the thought of him leaving. I ask that the Tribunal refer my husband's case to the Minister seeking his personal intervention so that, in due course, he may be able to lodge a partner visa application in Australia.

    Appendix B

    Statutory Declaration of [Ms C]

    1.My name is [Ms C]. I am married to [name deleted] and am a citizen of Australia. My [husband] is the brother of [the applicant] a citizen of Macedonia.

    2.I have a daughter called [Ms B] who was born on [date] and has [a health condition]. She is very close with [the applicant]. When [the applicant] first came to Australia, he stayed with [my husband] and I for a while when [Ms B] was young. She spent a lot of time with him and she has adored him ever since. Over the years she has become more and more attached to him. [The applicant] has always given her a lots of his time  - even more one on one time than her dad, it seems sometimes, because [my husband] works so much.  My husband works in [an occupation] and often works six or seven days a week. We have two other children - [name] is [age] years old and [name] is [age] years old. Of course we love our daughter dearly, but she has always had something of a unique and special relationship with [the applicant].  I believe that he is a truly good man.      

    3.Over the years, we have paid for [the applicant] to fly to [City 1] to visit her a few times a year this has varied over time but we have made a constant effort. It is sometimes up to four to five times a year that we pay for [the applicant] to come. [The applicant] calls her on the telephone and they spend a long time talking. [Ms B] understands Macedonian but cannot speak it well and [the applicant] cannot speak English well but the family translates for them. In addition, [Ms B’s] speech is a little impaired, but [the applicant] has always been able to understand her just as easily as her father and I.      

    4.More than three years ago now, [Ms B] was travelling to her job or support training in [a suburb] on the train. She was undergoing training to work at [a business]. She was i) [assaulted] by a man who followed her. She is very innocent and this was traumatic for her. She did not know what was happening and was afraid of him. He managed to get her number from her phone, before he let her go to work and she arrived at work with [deleted]. We called the police and tried to seek his immediate arrest. The police did not manage to arrest him immediately but later caught him.

    5.He has been charged with [assault] of a victim with [a health condition] and stealing. Since the incident, which took place in around November 2013, the court case has dragged on and on. The [court] has sent [Ms B] subpoenas and the alleged perpetrator has changed lawyers at least once or twice, which has created further delay. I understand that he is bleeding 'not guilty" and [Ms B] may have to give evidence for the prosecution if he is to be convicted.

    6.[Details of daughter’s health condition]. She had [surgery] when she was [a baby] and another large operation [as a baby]. It has been very hard for her to go through the ongoing pain associated with the court case. The alleged perpetrator has spent some time in jail already but we have to go to court again in June 2016. I understand that he is currently out on bail.

    7.In the months following this incident, [the applicant] has been an invaluable source of support and affection for my daughter. [The applicant] has told her 'you are a beautiful girl, he was just a bad man’ and explained to her over and over that she did not do anything wrong. In fact, after the incident took place in or around November 2013, we travelled to [City 2] for four or five days just so that she could spend time with him and get away from our home environment. She adores him. Their close relationship has eased the burden on me and her dad and I have felt less pressure to be her main source of support given [the applicant’s] presence. He has made a constant and absolutely invaluable effort to be a part of her life. In January 2014, after we went to [City 2] in late 2013, [the applicant] travelled to [City 1] to see her again. He now calls her frequently on the phone. He asks about her job — she is now working at [a workplace] three days week, and goes to [social events] with a group of other young adults with [this health condition]. I try to put her in touch with other young people so she can make friends as much as possible but it does not come easily to her.

    8.In November 2015. [Ms B] turned [age] years old. [The applicant] said initially that he would not be able to make it to her [birthday] party. She cried and she begged me to get [the applicant] here. She lost complete interest in her party when she realised he was not coming. She said that she did not even want to have the party or attend herself. I initially thought that it was simply not feasible for him to make it at that time but in the end we booked a last-minute ticket for him and he managed to make it here. He did not want to let her down and she had begged him as well as me! When he arrived as a surprise for her, [Ms B]'s face was absolutely priceless and she just lit up from the inside. She was so delighted and I was so happy that we could make it happen. [The applicant] is her uncle but really more like a second father to her.

    9.[Ms B] has been fundamentally affected by the incident of November 2013. I do not allow her to take the train anymore. We managed to obtain some assistance under [a government] scheme and I took [Ms B] to a social worker for several months. She does not have a lot of friends and close family members are the fundamental and unchanging aspects of her life which provide stability and I am so grateful for [the applicant] for always being there for her. He came to [City 1] at least four times in 2015 to see her. I understand that [the applicant] is not able to lodge a partner visa in Australia because of a no further stay condition and is reliant upon either the Department waiving that condition or the Minister intervening in his case in order to stay in Australia.

    10.I can certainly say that my daughter would take [the applicant’s] departure from Australia very hard. Even if he were only gone for a year or eighteen mouths, I believe that my daughter would really suffer in his absence. He is a dear person in her life and a great source of love and support. I believe that she would miss him terribly and is going through so much this year. She has to go to court again in June 2016 and I expect the prosecution to run on after that for months until it is resolved. [The applicant] has reminded her that she has not done anything wrong and that the perpetrator is in the wrong. It is very important for her to hear this from someone other than her dad and I. He has offered her friendship and love and he really makes an ongoing and active effort to be part of her life. He is a very importance presence in her life and I truly believe that she would suffer distress and significant hardship if he were forced to travel overseas for up to eighteen months.