1511304 (Refugee)

[2017] AATA 1486

1511304 (Refugee) [2017] AATA 1486 (1 August 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511304

COUNTRY OF REFERENCE:                  Brazil

MEMBER:Luke Hardy

DATE OF DECISION:  1 August 2017

DATE CORRIGENDUM

SIGNED:31 August 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Delete the words in paragraph 11 in their entirety and substitute in their place the following wording:

“Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I am required to consider the alternative criterion in s.36(2)(aa). A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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.”

……………………………….

Luke Hardy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511304

COUNTRY OF REFERENCE:                  Brazil

MEMBER:Luke Hardy

DATE:1 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2017 at 1:24pm

CATCHWORDS

Refugee – Protection visa – Brazil – Humanitarian and/or public interest claims – Australian Children – Referral to the Minister for intervention

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 417

CASES

MIAC v SZQRB [2013] FCAFC 33

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Brazil, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] July 2015. The applicants subsequently sought review of that decision in the Tribunal.

3. Prior to the delegate’s decision in this matter, the applicants’ representative advised that the Australia-born first named applicant, who is the minor child of the second and third named applicants, acquired Australian [citizenship]. [The child’s] protection visa application failed due to [the child] not meeting the “non-citizen” criterion. The first named applicant’s [sibling] had already been granted Australian citizenship some years before.

4. On 18 August 2015, the applicants’ representative wrote to the Tribunal acknowledging that it was inappropriate to have sought review on behalf of the first named applicant as [the child] was not a ‘non-citizen”. In the letter the representative sent, the Tribunal was asked to refer the matter to the Minister to allow him to use his non-binding discretion to consider substituting a more favourable decision under the auspices of s.417 of the Act. Inherent in this request was the position that the first named applicant’s parents had no protection claims as such and that the only claims left to be considered in this case were humanitarian and/or public interest claims that are outside of the Tribunal’s jurisdiction.

5. Where the Tribunal is unable to make a decision favourable to an applicant on the material in his or her files alone, the Tribunal must, pursuant to the Act, invite the applicant to give oral evidence at a hearing. The Tribunal duly invited the applicants to a hearing scheduled for Friday 4 August 2017 to give oral evidence and present arguments at a hearing. On 27 July 2017, the Tribunal was advised that the applicants 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 them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

6. The issue in this case is whether or not any of the applicants in this case are entitled to protection as refugees or, if not, on complementary protection grounds.

7. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims

8. Evidence to the effect that the eligible applicants have no refugee or complementary protection claims as such is confirmed and emphasised in a submission to the Tribunal dated 31 July 2017. That submission lays out in detail the applicants’ humanitarian claims to the Minister.

   Findings in relation to s.36(2)(a) of the Act

9. Clearly, the first named applicant is not a “non-citizen” and is not eligible for a protection visa. The other two applicants clearly do not claim a real chance of persecution (ref. s.91R(1) and (2) of the Act) let alone for any of the five Convention-related reasons. It is clear that they are seeking Ministerial consideration in light of the needs and vulnerability of the first named applicant.

10. Having considered all of the evidence in this matter in its entirety, I am not satisfied that the applicants face a real chance of persecution in Brazil in the reasonably foreseeable future. They are not refugees. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

    Findings in relation to s.36(2)(a) of the Act

11. Having concluded that [the applicants do] not meet the refugee criterion in s.36(2)(a), I am required to consider the alternative criterion in s.36(2)(aa). A person may meet the criteria for the grant of a protection visa under s.36(2)(aa) 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.

12. Relevantly, s.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.

13. Given my findings of fact above, and given that the "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" of persecution, I find that the applicants’ claims no more succeed as complementary protection claims than they do as refugee claims.

14. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Brazil, there is a real risk that any of the applicants will suffer significant harm. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

15. There is no suggestion that any of the applicants 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, they do not satisfy the criterion in s.36(2).

    Conclusions

16. For the reasons given above the Tribunal is not satisfied that any 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.

    Referral to the Minister

17. The Tribunal refers this matter, as requested, to the Minister, subject to his non-binding powers under s.417, highlighting the interests of the two Australian national [children] of the second and third named applicants, in particular the interests of the first named applicant who is still a minor.

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

19. 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.

20. 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).

21. 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.

22. 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’).

23. 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.