1503988 (Refugee)

[2017] AATA 130

1503988 (Refugee) [2017] AATA 130 (12 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503988

COUNTRY OF REFERENCE:                  Italy

MEMBER:James Silva

DATE:12 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 January 2017 at 5:06pm

CATCHWORDS

Refugee – Protection visa – Italy – Dual nationals – Political opinion – Leftist candidate – Threats of violence – Attacks on businesses – State protection – Attacks on foreigners – European Union residence

LEGISLATION

Migration Act 1958, ss 36, 65, 91, 426A, 499
Migration Regulations 1994, Schedule 2

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. The applicants are Italian citizens, a man in his [age range] originally from [Country 1] (‘the applicant’), and his [age] year old daughter born in Australia. 

2. The applicant and his family arrived in Australia [in] May 2010 as holders of [temporary] visas. 

3. The applicant applied for a Protection (Class XA) visa [in] April 2014. He attended an interview with the delegate of the Minister for Immigration [in] January 2015.

4. [In] February 2015, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

5. This is an application for review of that decision.

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

   CRITERIA FOR A PROTECTION VISA

7. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

8. The first-named applicant is [an age] year old man, originally from [his home town], [in Country 1]. He speaks [languages].

9. The applicant claims to have studied until [year] (until the age of about [age]), but details are lacking. He claims to have been involved in student politics, and later to have joined a major political party. He claims to have gone to Italy around [year], for political reasons.

10. The applicant successfully applied for Italian permanent residency under Italy’s immigration legislation in 1986[1]. In 1999, he was granted Italian citizenship and, in accordance with Italian law, renounced his [Country 1] citizenship. The applicant claims to have assimilated well into Italian society, and to have established several businesses there [several business types specified].

    [1] This was Italy’s first immigration law (law n.943/1986), which provided scope for illegal immigrants o regularize their status, but did not address refugees or asylum seekers: Mariangela Veikou and Anna Triandafullidou, European University Institute: Immigration Police and its Implementation in Italy: A Report on the State of the Art:

11. The applicant arrived in Australia [in] May 2010, as a [temporary entrant]. He obtained a [different temporary] visa [in] September 2010, valid until [March] 2013. The Department refused his application for a [further temporary] visa, and [in] April 2014, the (then) Migration Review Tribunal affirmed this decision. The applicant lodged the current application [in] April 2014.

12. The second-named applicant is the [age] year old daughter of the applicant and his wife, born in [Australia].

    Validity of Protection visa application

13. A potential issue that arises is whether the applicants have, in addition to Italian nationality, dual [Country 1] nationality in accordance with [Country 1] laws. In the case of dual nationality, the application is valid only if the Minister has exercised a personal discretion on the basis of his/her satisfaction that it is in the public interest to do so. 

14. Section 91P of the Act provides that if Subdivision AK applies to a non-citizen, the application is not a valid application. Section 91N specifies that Subdivision AK applies to a non-citizen at a particular time, if at that time the non-citizen is a national of 2 or more countries: s.91N(1). The question of nationality must be determined solely by reference to the law of that country: s.91N(6). The Minister has a personal discretion pursuant to s.91Q to determine by written notice that s.91P does not apply, if satisfied that it is in the public interest to do so.

15. The applicant wrote in his statement of claims that he renounced his [Country 1] citizenship in 1998. There is no evidence to indicate that he has sought to have it reinstated. The secondary application was born in Australia to Italian nationals, although it appears that (at least) her mother also held [Country 1] nationality at the time. There is no firm evidence to indicate that she currently has [Country 1] nationality according to the laws of that country.

16. The Tribunal is satisfied for the purpose of this decision, based on the limited available material, that the applicants’ protection visa applications are valid, and not affected by the operation of s.91P of the Act.

    Other family members

17. The protection visa application included the applicant’s wife, [an age] year old woman, and the couple’s [age] year old [first child], who first entered Australia [in] April 2011 (almost a year after the applicant), on Italian passports. They were included as members of his family unit who do not have protection claims of their own. They have since made return trips to [Country 1] using [Country 1] passports.

18. The Minister’s delegate advised [in] January 2015 that she had assessed these applicants to be dual nationals of Italy and [Country 1], and that their applications were not valid under s.91P of the Act. She advised that their attempted application would be taken to be a request for ministerial intervention under s.91Q(1) of the Act, and a determination would be made whether it is in the public interest for the Minister to allow the application to proceed as valid. [In] March 2015, the wife and first [child] purported to lodge their own protection visa applications, in which the wife made protection claims of her own. (The Tribunal has this file before it, but it is not immediately relevant to this review.) [In] May 2015, the wife and first [child] were advised that their deemed request for Ministerial intervention was unsuccessful.

19. The decision under review does not include the applicant’s wife or older [child], and they were not included in the review application.

    Claims

20. The applicant seeks protection in relation to Italy, on the basis that the mafia have targeted and threatened him, and ruined his businesses, on political grounds. He fears that they will do so again if he returns to Italy, and that the Italian authorities will be unable or unwilling to protect him. The claims, as presented in writing and at the Department interview are:

    §  He assimilated into Italian life and became involved in politics.

    §  In [year], he ran as a candidate for [a political party] in the mayoral elections for the Municipality of [City 1].

    §  During the election campaign, mafia members from the Forza Italia and other conservative parties targeted the applicant, including death threats. This prevented him from campaigning effectively, and continued after the elections. On one occasion, the applicant received further threats in which the caller reminded him that they had killed two [Country 1] expatriates in [an earlier year]. They warned him to leave Italy.

    §  The applicant sought assistance from the [City 1] police, but they were disinclined to protect a person of [Country 1] origins against the local mafia.

    §  The applicant left Italy for Australia, thinking that it was far away from Europe. Meanwhile, the mafia ruined two of his businesses. People continued to follow his wife around.

21. The applicant also presented very brief claims in relation to [Country 1], as a supporter of the Bangladesh Nationalist Party (BNP). He noted that the ruling Awami League (AL) is holding BNP leaders and activists captive. The Tribunal has insufficient evidence to establish that the applicant is a national of [Country 1], and therefore does not consider these claims any further.

    Evidence

22. The evidence before the Tribunal includes the following relevant material: -

    §The applicants’ protection visa application form received [in] May 2014, which includes forms relating to the applicants (and the other two family members), and the applicant’s statement of claims.

    §(The file also contains other documents, such as the applicant’s application for a Bridging visa   with work rights, which does not relate to his protection claims.)

    §A Protection visa interview (‘Department interview’) was held [in] January 2015. The Tribunal has listened to the audio recording, which is on the Department file

    §.The Protection visa decision record (‘delegate’s decision’) of [February] 2015.

    §Country information that the delegate placed on file: (a) a printout of the [City 1] Municipal elections, confirming that the applicant was a candidate and received [number] votes, and (b) information on ‘the public security system in Italy’).

    §Copies of correspondence relating to the validity of the applications made by the applicant’s wife and his older [child].

    §The Tribunal also has before it Department file [number], in which the applicant’s wife and older [child] attempted to make a second protection visa application, on the basis that the applicant’s wife suffered anti-foreigner discrimination as well as the side effects of the political pursuit of her husband (the applicant in this case).

    §Review application form, received on 23 March 2015, attached to which is a copy of the delegate’s decision record.

23. On 5 December 2016, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited them to give oral evidence and present arguments at a hearing to be held on 12 January 2017. The letter advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable them to appear before the Tribunal. The letter was sent to the authorised recipient, by fax, in accordance with the applicant’s instructions in the review application.

24. The Tribunal has received no communications directly from the applicant (the primary applicant). On 4 January 2017, the representative telephoned the Tribunal to state that he had received the hearing invitation and tried to contact the applicant by phone and mail, but he has received no response. On 5 January 2017 and again on 11 January 2017, the Tribunal sent SMS reminders to the applicant’s mobile telephone, but did not receive a reply.

25. The applicants did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. As of 5pm on 12 January 2017, the (primary) applicant has not contacted the Tribunal to seek a postponement of the hearing, or to provide any reason why they could not attend at the scheduled time. The Tribunal has also received no further communication from the representative.

26. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicants to appear before the Tribunal.

    Consideration of claims and evidence, and findings

27. The Tribunal has before it the applicant’s statement of claims as set out in his protection visa application form, and his oral evidence at the Department interview held [in] February 2015. As noted above, there is also some other material, such as country information on the Department file (which includes confirmation of the applicant’s candidacy as mayor in the [City 1] Municipal elections) and his wife’s separate statement of claims (which restates his political claims).

28. The material before the Tribunal about the applicant’s personal experiences, business interests and profile in [City 1], and Italy, is therefore limited to his statement of claims, statements at the Department interview and a few snippets of information. Furthermore, the delegate accepted that the applicant stood as a candidate in the [year] [City 1] council elections, and may have received some threats, but did not accept his other claims. The information before the Tribunal concerning the applicant’s other experiences in Italy, and his prospective concerns, is therefore limited and perhaps out of date, as the Department interview took place more than two years ago.

29. Among the claims on which the Tribunal has insufficient evidence are the following:

    §  Further details of the applicant’s candidacy, including the threats that he allegedly received.

    §  Details of the consequences of these threats, including particulars of the claimed approach to the police; the effects on the applicant’s campaigning; any effects on the conduct of his businesses, his personal movements, and security measures for him and family members; and any approaches that the applicant made to others, such as his political party, council or election officials, etc.

    §  Particulars of his business interests, his management of these both before and after his travel to Australia, and their subsequent disposition (he mentioned that one was destroyed during [a natural disaster], but the fate of the others is unclear).

    §  The circumstances surrounding his travel to Australia, the timing of his family members’ travel, and the lodgement of his protection visa application almost four years after his arrival here.

    §  The impact of his alleged political problems on family members, including his wife (whom he claimed had been followed and harassed after his departure).

    §  The relevance to him, if any, of his wife’s separate claims for protection based on her experiences of discrimination in Italy.

    §  Details concerning the applicant’s rights as a citizen of an EU Member State, including whether he personally has a right to enter and reside in other Member States, and if relevant, what enquiries or steps he took to avail himself of such rights.

    §  An update on the applicant’s and his family’s current circumstances, whether he has any ongoing political interests or ambitions (for instance, in relation to leftist parties in [City 1]), and his intended future conduct. This includes an update of any ongoing fears he has of being subject to Convention-related persecution or ‘significant harm’ if he returns to Italy.

30. The Tribunal accepts on the available evidence that the applicant is an Italian, that he stood as a leftist candidate for the [City 1] council elections, that he received just [number] votes, and that he may have received some minor ‘threats’. However, the Tribunal is  unable to be satisfied on the available information that the mafia, or other political or criminal elements made any serious threats (including death threats) or harassment that prevented the applicant from campaigning, or that continued after the election; that they intimidated him by mentioning the earlier deaths of two [Country 1] expatriates; that they warned him to leave Italy; that the applicant left Italy for his safety; that he abandoned his property and businesses due to the urgency of his flight for safety; or that he came to Australia because it was far away from the feared danger. The Tribunal is also unable to be satisfied that, after he left Italy, the mafia or others subsequently vandalised or otherwise ruined these businesses; that the applicant’s wife was subject to ongoing harassment (such as being followed); or that there were any other incidents indicating a continued threat to the applicant.

31. The Tribunal is also unable to be satisfied that the applicant sought police protection from any such threats, and that the police either stated that they could not assist due to insufficient details and evidence; or that the police were in some way unwilling or unable to help.    

    Refugee criterion

32. The Tribunal is not satisfied that the applicant’s candidature for a minority leftist party in the [City 1] council elections, his poor performance and the possibility that he may have received some kind of minor threat involved serious harm amounting to persecution, and it is unable to be satisfied as to any of the other claimed incidents. It is also not satisfied that the applicant’s past experiences or any other factors give rise to a real chance of him being subject to persecution for a Convention reason in the future. Based on the above findings of fact, the Tribunal is not satisfied that he as a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Italy. 

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

    Complementary protection

34. 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).

35. Based on the limited information before the Tribunal and the factual assessment above, the Tribunal is not satisfied that the applicant’s past, limited political work in [City 1] gives rise to a real risk that he will be subjected to significant harm in the future – that is, any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

36. In other words, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Italy there would be a real risk that he will suffer significant harm.

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

38. There is no suggestion that either the applicant or the second-named 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, neither applicant satisfies the criterion in s.36(2).

    Safe third country protection

39. In light of the Tribunal’s conclusions above - that it is not satisfied that the applicant has a well-founded fear of Convention-related persecution in Italy, and that there are no substantial grounds for believing that there would be a real risk that he will suffer significant harm in Italy – it is not necessary to determine whether, additionally, Australia is taken not to have protection obligations towards either or both of them on the basis of safe third country protection in other EU Member States.    

    Conclusion

40. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

41. The Tribunal affirms the decision not to grant the applicants Protection visas.

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    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.

    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).

    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.

    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’).

    Subsection 36(2) is qualified by subsection 36(3), which states: ‘Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ However, his does not apply if the person faces a relevant risk of harm in the third country, or a risk of being refouled to a country where there is a relevant risk of harm: 36(4), (5) or (5A).

    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.