1419065 (Refugee)

[2016] AATA 3659

1419065 (Refugee) [2016] AATA 3659 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419065

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Paul Windsor

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2016 at 9:31am

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 Cambodia, applied for the visa [in]  September 2013 and the delegate refused to grant the visa on [in] October 2014.

3. The applicant applied to the Tribunal for review of this decision [in] November 2014.

4. In a submission dated [in] January 2016, the applicant’s adviser indicated to the Tribunal that the applicant had lodged an application for a Protection visa with the Department on the basis that she would ultimately be seeking the intervention of the Minister for Immigration and Border Protection pursuant to section 417 of the Act.  The submission acknowledged that ‘the Protection visa is not a visa for which [the applicant] meets the relevant criteria.  Nevertheless, she made her applications to both the Department and the Tribunal on the basis that she will ultimately seek the Minister’s intervention pursuant to section 417 of the Act on compassionate and humanitarian grounds and will request the Minister to grant her permanent residence to allow her to continue to reside in Australia with her Australian citizen [child], [name].

5. The submission requested that the Tribunal consider making a recommendation to the Minister that he intervene using his personal powers pursuant to section 417 of the Act.

6. In a letter dated 16 March 2016 the applicant was invited to appear before the Tribunal on   17 April 2016 to give evidence and present arguments.  

7. In a letter dated [in] March 2016 the applicant’s adviser reiterated that the applicant requests that the Tribunal consider making a recommendation to the Minister that he intervene using his personal powers pursuant to section 417 of the Act in light of the fact, inter alia, that she is the mother of an Australian citizen child.  The adviser indicated that if the Tribunal was minded to make such a referral there would be no need for the applicant to attend a hearing.

8. The Tribunal has decided to refer this 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.  Accordingly, no hearing was held.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

11. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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’).

    Mandatory considerations

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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.

    Section 417 – Referral to Minister - Applicant request for referral

14. 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.

15. The applicant’s particular circumstances relevant to the exercise of the discretion are set out in the submission by the applicant’s adviser dated [in] January 2016[1].  The applicant’s circumstances may be summarised as follows:

    ·The applicant has [an age] Australia citizen [child], born [date], who is living in Australia.  The child is an Australian citizen by descent because her father, who is now deceased, was an Australian citizen.

    ·The child’s father was intending to sponsor the applicant on a partner visa, but died [in early] 2013 due to an ‘unexpected [medical event]’ before the application could be lodged.  This left the child without her mother who was residing in Cambodia at the time.  The child then went into the care of her half-sister until the applicant arrived in Australia in August 2013.

    ·The applicant is not in a position to afford the fees for a Contributory Parent visa.

    ·The applicant is pregnant with [another] child, due to be born [in] 2016.  She does not know the identity of the father as they only met on one occasion. 

    ·A Psychologist’s report indicates that it appears the applicant is suffering from [anxiety] and is extremely fearful regarding the prospect of return to Cambodia or separation from her [child], and there is indication of some post-traumatic reaction to a reported violent attack on the child’s father in Cambodia, which occurred in November 2011.

    [1] See folios 179-186 of Tribunal file 1419065.

16. The submission by the applicant’s adviser dated [in] January 2016 contends that the applicant’s ‘very unique situation engages no less than seven of the matters contemplated by the Minister’.  These may be summarised as follows:

    ·Strong compassionate circumstances arising from the applicant’s desire to care for and raise her child, and the psychological impact on both the applicant and the Australian citizen child of the applicant being denied that opportunity.

    ·In relation to consideration of Convention on the Rights of the Child obligations, that it is manifestly in the best interests of the child that [the child] be able to remain in Australia with [the child’s] mother.

    ·In relation to ICCPR obligations, that a decision not to intervene would threaten the security and happiness of the family unit comprising the applicant and her [child].

    ·That the applicant has been in Australia since [date] August 2013 and has integrated well into the Australian community.

    ·That there was an intention to lodge a partner visa but this was impossible after the death of the potential Australian citizen sponsor, the child’s father, an unintended consequence of legislation; or circumstance where application of legislation leads to unfair or unreasonable results in a particular case; or circumstance that the legislation does not anticipate.

    ·Compassionate circumstances exist regarding the age and/or health and/or psychological state of the person in that the applicant’s psychological well-being is inextricably linked with her young [child], and her Australian citizen [child] would suffer irreparable harm if [the child’s] mother had to leave Australia, and the child’s welfare would be compromised if the child had to return to Cambodia.

17. 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)’ and will refer the matter to the Department.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The applicant claims to be a citizen of Cambodia who was born in [location] Cambodia on [date].  According to her Protection visa application she is of the Buddhist religion and speaks Khmer.  She departed Cambodia legally and arrived in Australia [in] August 2013, travelling on a visitor visa issued on [date] August 2013[2].

    [2] See folios152-154 of Departmental file [number].

    Summary of claims

19. In the submission dated [in] January 2016 the applicant’s adviser indicated to the Tribunal that a ‘Protection visa is not a visa for which’ the applicant ‘meets the relevant criteria’.   The submission makes clear that the applicant has made an application for a Protection visa ‘on the basis that she will ultimately seek the Minister’s intervention pursuant to section 417 of the Act on compassionate and humanitarian grounds’.

    Findings and reasons

20. The issues in this review are whether there is a real chance that, if the applicant returns to Cambodia, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Cambodia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Applicant’s identity

22. On the basis of the copy of the applicant’s Cambodian passport provided to the Department[3], the Tribunal accepts that the applicant is a citizen of Cambodia and that her identity is as she claims it to be.  The Tribunal accepts that Cambodia is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.

    [3] See folios 93-96 of Departmental file [number].

    Does the applicant have a well-founded fear of persecution if she returned to Cambodia?

23. Based on the applicant’s adviser’s submission that a ‘Protection visa is not a visa for which’ the applicant ‘meets the relevant criteria’, the Tribunal finds that there is not a real chance that the applicant will suffer persecution amounting to serious harm, if she were to return to Cambodia, now or in the foreseeable future.

24. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

26. Based on the applicant’s adviser’s submission that a ‘Protection visa is not a visa for which’ the applicant ‘meets the relevant criteria’, the Tribunal does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cambodia, there is a real risk that the applicant will suffer significant harm, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. 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).

    DECISION

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

    Paul Windsor

    
    

    Member