1501613 (Refugee)

[2016] AATA 4522

1501613 (Refugee) [2016] AATA 4522 (21 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501613

COUNTRY OF REFERENCE:                  Georgia

MEMBER:Lilly Mojsin

DATE:21 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2016 at 2:46pm

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 [PVA] under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Georgia, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appealed that decision and attached a copy of the Department decision to her application.

4. The applicant appeared before the Tribunal on 14 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Georgian and English languages.

5. The applicant was represented by her migration agent, who attended the Tribunal hearing.

   RELEVANT LAW

6. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant arrived in Australia [in] March 2014 as the holder of [a temporary] Visa. In her application she states that she was issued with a passport [in] December 2013, a previous passport was lost about 3 to 4 years previously. The applicant states that she speaks reads and writes Georgian, Russian little and French a bit. She states that she is an ethnic [Ethnicity 1].

8. The applicant provided to the Department, in addition to various death and birth certificates 

   ·Letter from her daughter stating that the family is unable to render financial assistance to the applicant as all members of the family are unemployed and their source of subsistence is her mother-law’s pension of 120.00gel monthly.

   ·Court ruling dated [August] 2014 in relation to the applicant’s son who was arrested [in] August 2014 for illegal use of drugs for personal use without the doctor’s prescription. The court ordered that he be imprisoned after hearing the evidence from the witnesses.

   ·Medical report from [an] Asylum Seekers Centre that the applicant was anaemic and was placed on oral iron supplements

   ·[Organisation name] request for work rights

9. In a statutory declaration received by the department on 4 April 2014 the applicant states as follows

   ·She was born in Georgia on [date] and is an ethnic [Ethnicity 1], of [a certain] religion

   • She grew up in [a] Village, [Town 1], and married in 1988 and moved nearby in the same area. She is a widow with two [children]who are married and live in [Town 1]. Her husband was killed when he travelled to Russia in 2004. [Details of death deleted].
   • Her father died in 1992 under suspicious circumstances and his body was found by her [sibling] in the river
   • Her mother worked in the same company as her father assisting with manufacturing [product], she retired when she was [age] and lives as a pensioner
   • She has [siblings] who are [married]. She has not seen them for about 2 years and her mother has told her they have left Georgia to escape the problems of their [ethnicity].
   • She studied [course] at university for 3 years. She worked as a [occupation] until 2002 in [Town 1], but she was the only person of [that] ethnicity working at the [workplace]. Her colleagues and [clients] began to create problems for her
   • She experienced problems in Georgia because of her ethnicity for most of her life. [Ethnicity 1 people] were always reminded they had no place in Georgia, people would warn them to [go] and they were socially isolated and life was very difficult, they were constantly made to feel unwelcome
   • After her father died in 1992 it caused a lot of problems and she believed her father was targeted for being [Ethnicity 1]. Her mother was Georgian and has never faced discrimination but the applicant and her [siblings] inherited their father’s ethnicity
   • Her persecution began in 1988-9 when the political situation became bad. In 1989 she was harassed daily in her workplace because of her ethnicity. She received insulting remarks from [clients] and colleagues and discriminatory behaviour aimed to isolate her and single her out. Daily she would be told to go to [back to her home area] but she has never been there. Georgia has always been her home. She was ostracised in the [workplace] and at lunchtime and socially excluded.
   • She was threatened by her colleagues that they would push her out of work through their mistreatment. She felt very intimidated and scared. The [clients] thought she did not deserve any rights as an [Ethnicity 1] and were angry she was responsible for [her work area]. Her husband told her to leave work and she left in 2002.
   • After her husband died in 2004, her mother supported her and sent her food from the village. She was unemployed and no one would hire her due to her ethnicity. Harassment from the general community scared her and she became worried leaving her house after her husband’s death. If she went outside people would make insulting comments and she was intimidated by the risk of violence because she was [Ethnicity 1]. Her parents-in-law began to blame her for the death of her husband due to her ethnicity. They thought she was the cause for bad things happening to the family. Her father-in-law died in 2008 but her mother-in-law still wished bad things on her.
   • In 2014 her son was framed for drug involvement by the police. She believes it happened because she was [Ethnicity 1]. He still faces discrimination from the authorities
   • In November 2013 she went to Tbilisi where she met a woman who helped her with her passport and this woman made the arrangements for her to get a visa to Australia.
   • She managed to escape Georgia legally [in] March 2014
   • If she were to be returned to Georgia she fears being targeted for harm, in addition to cruel and inhuman and degrading treatment from members of the community who do not believe she belongs in Georgia. Georgians don’t believe she should have rights in Georgia because of her ethnicity and she will be persecuted because of this
   • She also feared she may be arbitrarily deprived of her life like her father because of her ethnicity. She does not have her husband or [siblings] to protect her in Georgia and this mean she is an easy target. There is no state protection for her as the police do not believe she has rights as an [Ethnicity 1] in Georgia
   • she fears serious harm and persecution because of her ethnicity and membership of a particular social group as a returnee should she be forced to return to Georgia

10. At a Department interview, detailed by the delegate in the Department decision, the applicant emphasized that she was not physically harmed, she was verbally threatened on one occasion at her home by [men] in regard to her enquiries about her husband’s death. They emphasised to the applicant there would be serious consequences and something would happen to her if she pursued the death of her husband any further.

11. The applicant's son continued seeking information within the community. This became known to the authorities. Consequently on two occasions the police placed narcotics in the applicant's son's pocket and charged him with possession, being under the influence and he is now in jail. The applicant further asserted at interview that police are so corrupt, they can do anything. She believes that the incident with her son occurred because she is [Ethnicity 1].

12. After the applicant's husband's passing in 2004, the applicant continued to remain in Georgia until 2014. During this time her mother sent her food from the village to support her. She states that her movements were limited during this timeframe. For 3-4 years after her husband's death she was barley going outside and dressed in black as she was a widow. She received a special pension for the children. She was "a mother and nothing else".

13. The delegate of the Department refused the visa, the delegate accepted that being [Ethnicity 1] in Georgia overall constitutes a particular social group, that the applicant may have experienced discrimination in the past but would not suffer harm on her return to Georgia.

14. At the Tribunal hearing the applicant said that she had two children, . Her husband, and ethnic Georgian, who she married in 1987 died, in 2004, in what is now [location]. He went there for business purposes.

15. The applicant came to Australia and fled Georgia because she did not have any other choice.  It was because of her [Ethnicity 1] back ground. She chose Australia as she had one wish to go as far as possible away from Georgia. Her children remain in Georgia, she has no relatives in Australia, only friends. 

16. In Georgia she experienced negative influences towards her and her children. In November 1992 her father was killed because he was of his [Ethnicity 1] background, he was killed in the village and he was thrown into the river.  Her mother was Georgian and her father [Ethnicity 1].

17. The applicant said that there had been many clashes in the village, from about 1987 and it continues to this day. There was tension between Georgians and [Ethnicity 1]. Her father had not returned from work after meeting several workmates for dinner and the following morning he did not come home and was found strangled. The applicant did not live in the village at that time and she was already living in [Town 1].  She then went to the village to find out what happened. They tried to find out where her father was and her husband and [sibling] had fears maybe someone killed him.  Her [sibling] found her father near the river. He had signs of strangulation but the autopsy said he fell in water. Police did an investigation and they said to the applicant “you [Ethnicity 1], your place is not in Georgia”.

18. It was put to the applicant that there were numerous mixed marriages in Georgia, with Russians, Armenians, Greeks, Kurds, Azerbaijani and Ossetians. The applicant agreed and said that during the Soviet Union there were no problems.

19. From 1984 she worked [in] [Town 1]. From 1988 until 2002 she experienced abuse at work because she was [Ethnicity 1].  From 1990 she was permanently harassed, she experienced accusation and humiliation, especially as she experienced harm from [clients].  She had to leave work, her husband pushed her, and she did not try to find work but she was always hopeful, because her husband was Georgian. Her surname was Georgian.  Her name was changed. Her grandparents changed it but everyone knows it is an [Ethnicity 1] name.

20. She supported herself with help from her retired mother. Sometimes her husband worked and sometimes he did not work.  She stayed with her mother in law and father in law’s home. She was discriminated against by them and she experienced abuse from husband’s parents. She lived with them until she left Georgia. [One of her children] married in 2005 and [lived] with [the spouse]. Her son still lives in her parents in law’s home. They passed away and her son lives in their home. He supports himself and has his own family and his wife’s parents help them. He is unemployed.

21. She did not work until she came to Australia and when asked how she got money to pay for her trip she said that she got money when [one of her children] helped her and borrowed money from the bank.

22. In 2004 when her husband died she had trouble in family because her mother in law accused her that the reason her died was because of her so she was permanently humiliated by them. She was hopeful it would stop. Her mother in law physically abused her one day when she was cooking for the children, she hit her and she was unconscious and experience a lot of physical problems. She did not report this incident to the police. Even when ambulance arrived it was pointless to apply to the police, she was bleeding and they refused to provide medical assistance. She continued to remain living with them as there no place to go, she did not go to her mother as her mother lived elsewhere. Because of her son she stayed there, he was [number] years of age.

23. Her son was [number] years old when her husband was killed. Her [child] asked why [the] father was killed, she tried to avoid a direct answer. Because [he/she] is [Ethnicity 1] nobody will bother, her son always tried to find out about the death of his father. In August 2013, they put narcotics drugs on her son and [in] august 2013 her son was jailed. [Period of time in jail deleted].  He was charged by police and found guilty, he served a sentence. He was released. Asked what relevance this had to her claims she said that it was wrong doing by police and false charges. It was because she was [Ethnicity 1]. Her son is still in Georgia. He grew up in an environment when her in laws were trying to kick her out. She was not in Georgia when her son was arrested. Nothing happened to him, they tried to do some trouble to him.  A group of people not in police uniform try to take money from people and they try to put narcotics for some people and give trouble to her because of her background. She was permanently abused for her background from her neighbours and people and it is continuous against her son.

24. It was put to her that her son could have used drugs and been caught and she said that he never used drugs before she left Georgia.

25. She left Georgia as she was not in a position of being a human being and she experienced permanent abuse from the neighbourhood. When asked it any other [Ethnicity 1] Georgians treated in this way she said too many experienced this.

26. When asked what she feared about returning she said she does not have a home. It was put that her son has a house. She then said he sold the house gave money back to his [sibling] and now is living with his in laws. Now she cannot go back as she cannot find a job and has fears to go back to Georgia as she fears harm for her children. She left as maybe her children will find peace. After 2.5 years she now knows what is a peaceful life.

27. Discussing her claim that in 2007 she wrote a letter to authorities regarding her husband's death and she applied to the police for an investigation as people with her husband said that he jumped, it was put that as this incident occurred in Russia the Georgian authorities had no power to do so. The applicant did not disagree.

28. It was discussed with the applicant that there was no independent evidence to suggest that person from mixed marriages [Ethnicity 1] Georgian suffered any harm in the manner described. The applicant did not agree. It was also put to the applicant that she not produced any independent evidence to support her claims and the evidence indicated there were several instances of hate speech inciting violence against LGBTI minorities, 200 cases of “Islamophobic” or “Turkophobic” and 36 cases of “Armenophobic” statements. The Tribunal discussed the independent evidence that indicated there was extensive reporting from NGOs in regard to the situation in Georgia. Inter marriage between numerous groups in Georgia was discussed and that Georgia has introduced measures to protect minorities.

29. The applicant’s advisor confirmed that he had no independent evidence to place before the Tribunal to support the applicant’s claim. He said that Gergia is in a state of developing and they are struggling. On local level and on small town level they have not achieved anything. They are trying to do something but it is hard to convince fighting [parties]. It is very hard to prove problems of mixed marriages and to bring the applicant into the scope of the convention. She has been without a job for 10 years. If she goes back she will suffer abuse, she has no place to live, no job and no means to support herself. If she is sent back to Georgia there will be beating and there is no justice. 

    REASONS AND FINDINGS

30. On the basis of her Georgian passport I accept that the applicant is a national of Georgia and is not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than Georgia. Therefore, I find that the applicant is not excluded from Australia's protection by s. 36(3) of the Act. I also find that Georgia is the applicant's “receiving country” for the purposes of s. 36(2)(aa).

31. The applicant claims, and I accept, that she is [Ethnicity 1] because her father was an ethnic [Ethnicity 1] and her mother a Georgian. She speaks Georgian but not [the Ethnicity 1 language]. She is [a certain religion]. She was born in [Town 1] [a town in a central part of the country and the [number] biggest city of Georgia] [number] kilometres from Tibilisi[1].  The applicant claims and I accept that it is not very far from [location]. The applicant married an ethnic Georgian in 1987, she has two [children]. Her husband died [in] 2004 in [location], [now [name]] Russia.  The applicant lived with her parents-in-law until she left Georgia in 2013. Both her parents-in-law have now died.

    [1] [Details deleted].

32. According to the Georgian Census of 2002, [details deleted]. There has been significant intermarriage between [Ethnicity 1] and Georgians, but statistics are unavailable[2]. 

    [2] [Details deleted].

33. Georgia is known for its ethnic diversity[3]. Its largest minority groups, Armenians and Azerbaijanis in the south, are poorly integrated — many don’t speak Georgian fluently. In contrast, [Ethnicity 1] are traditionally Orthodox Christians like the Georgian majority, and overwhelmingly speak fluent Georgian. [Details deleted]. But surviving the peace has proven difficult. Hard times, not hatred, has led many ethnic [Ethnicity 1] to leave Georgia, and those who remain are rapidly assimilating. 

    [3] [Details deleted].

34. According to the latest census[4], about 83% of the population identify themselves as Georgians. The largest minority is the Azeri one (about 7%), followed by Armenian (6%) and Russian (1.5%) ones. Other minorities - Abkhazians, Ossetians, Greeks, Ukrainians, Kists, Yezidis, and others - each represents less than 1% of the population. Since 2009, the legal framework regulating the protection and promotion of minorities’ right has developed. Georgia approved a Strategy and Action Plan for the integration of minorities, spanning from education to employment possibilities. A new strategy (the State Strategy for Civic Equality and Integration, years 2015 - 2020) was adopted in 2015, and it follows the Human Rights Strategy and Action Plan, dated 2014, which also devoted a part to the promotion of equality for members of minorities. In the same year, the anti-discrimination legislation was drafted and the Body for Equality within the Office of the Public Defender was created. The Ministry for Reintegration, formerly strongly oriented towards the issues of breakaway Abkhazia and South Ossetia, was renamed the State Minister Office for Reconciliation and Civic Equality, further pursuing the goals of social cohesion, and of a more inclusive society based on civic criteria, regardless ethno-linguistic affiliations. And while Georgian is the official language, the new language law also protects the national languages ​​of minorities. Since 2012, the Criminal Code contemplates discrimination among the aggravating circumstances in crimes.

    [4]

35. The applicant claims that she suffered discrimination and racial abuse as a [occupation] from when she commenced working after completing her studies until 2002 when she left work of her own accord, when her husband encouraged her to give up work. There is no independent evidence before me to support her claim that [Ethnicity 1 people] living in the area of Georgia suffered racial abuse and discrimination prior to 2002. The independent evidence indicates that during and post Soviet times there have been [Ethnicity 1] Georgian intermarriages and whilst the applicant claims that she has been identified as an [Ethnicity 1], there is also no independent evidence before me to suggest that [Ethnicity 1], living in Georgian towns, were racially abused and taunted for their ethnicity prior to 2002. I am of the view that had it been the situation some mention would have been made in independent sources such as US State Department Human Rights Reports, Amnesty International and UK Home Office reports.

1. I have considered the applicant’s claim that she was unemployed and no one would hire her due to her ethnicity after she left work in 2002. As I have found no independent evidence to suggest that ethic [Ethnicity 1], living and working in Georgia, suffer harm for their ethnicity I reject this claim.

2. The applicant claims that her father died in 1992 under suspicious circumstances. At time of application she submitted a death certificate untranslated.  [Details deleted]. Even giving her the benefit of the doubt and accepting that the applicant’s father died under suspicious circumstances, the applicant did not reside in the same village and suffered no harm as a consequence of his death.

3. I accept that the applicant’s husband died in 2004 in Russia. I do not accept that the Georgian authorities refused to investigate the death at the request of the applicant or her son or that unknown persons verbally threatened her or that the authorities refused to investigate his death due to her [Ethnicity 1] ethnicity. When put to the applicant at the hearing that it was my view that Georgian police had no legal rights to investigate deaths internationally ie in another country Russia, and it was a matter for police of that country, the applicant did not respond. I am not satisfied that the Georgian police refused to investigate the death of the applicant’s husband because of her ethnicity or because of her son’s relationship to her.

4. I do not accept that the applicant’s parents in law physically attacked, harmed and abused her whilst she lived with them in her home until 2013 because of her [Ethnicity 1] ethnicity or because her mother in law accused the applicant that she was reason that her son died.

5. It was put to the applicant that she had her own mother and she could go to her to escape from her in laws. I do not accept as plausible the applicant’s explanation for not moving away from this claimed harm was because she stayed with her in laws because of her son and also her mother lived elsewhere. Nor do I accept that the ambulance refused to assist her because she was [Ethnicity 1]. There is no independent information before me to support such a claim and furthermore, there are NGOs in Georgia, such as the Georgian Lawyers Association and Human Rights House[5] who report extensively on human rights abuses. I am of the view that had the Georgian ambulance service refused assistance to ethnic [Ethnicity 1] some mention would have been by those NGO groups operating in Georgia.

   [5] >

   As for the applicant’s claim that because she is [Ethnicity 1] nobody will bother with her or that the police [or others] framed her son by putting put narcotics drugs on him and he was jailed for [number] months because she was [Ethnicity 1] the applicant was not in Georgia when her son was arrested. I accept that country information points to instances of arbitrary arrest and detention in Georgia[6].  The applicant has never been arrested, charged or harmed by the Georgian police. I am of the view that, in light of a lack of information about Georgian police targeting or discriminating against [Ethnicity 1] women or [Ethnicity 1]-Georgian mixed marriages and information that Georgia has taken positive steps to integrate the many ethnic groups in Georgia, including removal of ethnicity on ID cards in the late 1990s–early 2000s, as a way to promote civic integration[7]. I accept that the son was arrested and served a sentence of imprisonment. Whilst the applicant asserts that her son never took drugs when she was in Georgia, the charges detailed in the court documents indicate that the applicant was charged for possession only. I do not accept that the son’s drug sentence was in any way related to the applicant or to the applicant making enquiries about his father’s death in Russia.

   [6] . Caucasus Analytical Digest No. 64, 9 July 2014

6. Minority Rights Group International[8] highlights the following:

   Georgia strengthened its international commitment to minority rights in December 2005 by ratiffing the Framework Convention for the Protection of National Minorities. The government submitted its first report to the Council of Europe in July 2007. A similar domestic commitment has been harder to achieve. Concrete legislation governing ethnic issues is sparse and scattered across a range of different legal acts. The constitution contains a number of provisions proclaiming the equality of Georgia's citizens; other laws allow for rights of association, cultural activities, native-language primary and secondary education, and stipulate language requirements for public office.

   [8] CIS22782, Minority Rights Group International, "World Directory of Minorities and Indigenous Peoples - Georgia : Overview", Minority Rights Group International, 01 October 2011. 

7. As for her claims that groups of people not in police uniform try to take money from people and they try to put narcotics for some people and give trouble to her because of her background whilst I accept that there is crime and corruption in Georgia there is a functioning police force and independent judiciary.  I do not accept that the applicant suffered from being permanently abused for her [Ethnicity 1] background from her neighbours as these claims are not supported by the independent evidence.

8. I have considered all of the applicant’s evidence singularly and cumulatively. I am not satisfied that the applicant was perceived to have an adverse profile as an ethnic [Ethnicity 1] in Georgia, prior to departing for Australia. I am satisfied the applicant did not flee Georgia fearing harm but came to Australia as the holder of a [temporary] visa.

9. I am required to consider the situation if there is a real chance the applicant would suffer serious harm in the future if she were to return to Georgia.

10. As I am satisfied that the applicant had no adverse racial or ethnic profile in Georgia, I am not satisfied that the applicant is at risk of serious harm in Georgia, on her return to Georgia.

11. The applicant fears serious harm and persecution because of her membership of a particular social group ‘returnee’ should she be forced to return to Georgia. Accepting that returnees are a particular social group, there is no independent evidence before me to suggest that returnees are harmed on their return to Georgia. Freedom[9] of domestic movement and international travel are respected in Georgia, and individuals have the freedom to choose their place of residence without interference. 

    [9]

12. The Heritage Foundation's Index of Economic Freedom ranked Georgia 22 of 178 countries in 2015, noting the regulatory ease of registering a business and recent government efforts to eradicate corruption. I am of the view that were it the situation that returnees to Georgia suffered harm on their return, some mention would have been made in independent sources such as Minority Rights Group International, US State Department Reports on Human Rights Practices, Amnesty International, Canadian IRB or UK Home Office who all report on Georgia.

13. The applicant claims that she has no home, no job and no means to support herself. The applicant is a qualified [occupation]. She was able to support her family independently from 2004 until 2013.  The applicant's children are married and continue to reside in Georgia albeit they state, by letter provided to the Department, that they are unemployed. The applicant has been living in Australia since 2013 which indicates that she is a resourceful person.

14. There is no independent evidence before me to suggest that the applicant will suffer serious harm for being an ethnic [Ethnicity 1] widowed woman, formerly married to an ethnic Georgian, in Georgia.

15. For the reasons given above, 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

16. I have rejected the all the applicant’s claims. I have rejected her claims that she suffered harm or discrimination for her ethnicity ie an ethnic [Ethnicity 1] widow of an ethnic Georgian in Georgia or that her family suffered harm or discrimination because of her ethnicity. I do not accept that the applicant had an adverse racial or ethnic profile in Georgia or an adverse imputed racial or ethnic profile or that she will be imputed with an adverse profile on her return to Georgia.

17. I do not accept that members of the community do not believe the applicant belongs in Georgia or that Georgians do not believe she should have rights in Georgia because of her ethnicity and she will suffer harm because of this. Nor do I accept that she may be arbitrarily deprived of her life because of her ethnicity. I do not accept that she is an easy target or that there is no state protection for her as the police do not believe she has rights as [Ethnicity 1] in Georgia. I have found no independent evidence to support this claim and I am of the view that were it the situation it would be known to independent sources.

18. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Georgia, that there is a real risk she will suffer significant harm. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Georgia, there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment. Accordingly, the I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    CONCLUSIONS

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

20. 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

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

    Lilly Mojsin
    Member

    
    

    Annexure A

22. 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.

    Refugee criterion

23. 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).

24. 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.

25. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

26. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

27. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

28. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

29. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

30. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

31. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

32. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

33. 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’).

34. ‘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.

35. 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.

    Section 499 Ministerial Direction

36. 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.