1501754 (Refugee)

The Administrative Appeals Tribunal considered the claims of two applicants, husband and wife, who arrived in Australia in July 2013. The applicants, who are Italian citizens and long-term residents of Italy, claimed they left Italy due to fear for their lives. They alleged that the first applicant witnessed child sexual abuse at her workplace, reported it, and was subsequently dismissed and subjected to ongoing harassment, including threatening calls. The second applicant was allegedly physically attacked at work and warned about his son's safety. The applicants also claimed an assault occurred at their home in April 2013, with further threats made if the incident was reported to the police. The delegate had refused their application on the basis that, as EU citizens, they could access third-country protection and had not exhausted all available avenues for protection in other EU member states.

The legal issues before the Tribunal were whether the applicants met the complementary protection criterion for a protection visa, and specifically, whether section 36(3) of the Act applied. Section 36(3) states that Australia does not have protection obligations in relation to a non-citizen if the non-citizen has a right to enter and reside in another country. The Tribunal was required to determine if the applicants had such a right and if any exceptions to this provision applied, particularly concerning a well-founded fear of persecution or a real risk of significant harm in a third country. The applicants did not claim to fear persecution based on Convention grounds but rather alleged criminal retribution for the first applicant's actions.

The Tribunal reasoned that under European Union legislation, the applicants, as Italian citizens, possessed the right to enter and reside in other EU member states for at least three months, and in many cases, longer, without requiring extensive documentation. It found that the applicants had not taken all available steps to avail themselves of this right in countries such as Sweden, France, or the United Kingdom, or any other EU member state. The Tribunal concluded that section 36(3) applied because there was no evidence to suggest the applicants had a well-founded fear of persecution for a Convention reason in any EU country, nor was there a well-founded fear of being returned to a country where they would face such persecution. Furthermore, the Tribunal found no substantial grounds to believe that as a necessary and foreseeable consequence of the applicants exercising their right to reside in another EU country, they would face a real risk of significant harm. The Tribunal dismissed the applicants' contention that their harassers could easily locate them in another EU country, deeming it remote speculation, especially given the passage of time since they left Italy and the lack of evidence of ongoing threats.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicants protection visas, finding that Australia did not have protection obligations in respect of them under section 36(3) of the Act. The applicants were therefore found not to satisfy the criteria for a protection visa.