1511358 (Refugee)

[2016] AATA 4781

1511358 (Refugee) [2016] AATA 4781 (16 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511358

COUNTRY OF REFERENCE:                  United States of America

MEMBER:Glen Cranwell

DATE:16 December 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 16 December 2016 at 11:16am

CATCHWORDS
Refugee – Protection visa – United States of America – Care for elderly person – Father of friend in US – Fears attacks for abandoning care – Social exclusion – Detention – Risk of harm remote – Ministerial intervention

LEGISLATION
Migration Act 1958, s 65, s 36(2)(a), (aa), (b), or (c); ss 5(1), 91R, 91S, 417, 499, 345, 351, 454 and 501J
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. 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 United States of America, applied for the visa [in] December 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal on 16 December 2016 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant’s claims were summarised by the delegate as follows:

    She is a retired [occupation] from [California]. She is divorced.

    She came to Australia at the request of a close friend in the US to look after her friend's [age] year old father — [Mr A] - who resides in [state]. [Mr A] has no family in Australia since the death of his wife and has multiple serious health concerns. He is unable to care for himself.

    She has not suffered harm in the US, however, she fears degrading treatment and significant harm at the hands of [Mr A’s] immediate family if she returns to the US leaving him to die. She fears the family will say that her leaving was the reason for [Mr A’s] death, causing her significant physical and mental harm, and humiliation. She also fears the family will report her to the US government for investigation and she will suffer persecution as a result.

    She fears being abandoned by [Mr A’s] family and by the US government and that her reputation will be tarnished and degraded causing her extreme humiliation.

    If she returns to the US she will suffer retaliation and exclusion from the community, and her social groups potentially causing her physical harm. She will also lose the physical support of [Mr A’s] family and the community as she ages. Persecution by the US government could lead to her being temporarily detained by police while she is under investigation. Detention may significantly harm her health, leading to possible death.

    It would be unreasonable for her to relocate to an area of the US where there would not be a real risk. [Mr A’s] family and the US government would find her. She is elderly and has no family members in the US to shelter her or protect her. If she remains in Australia to look after [Mr A] she will not be subject to this harm.

    When she leaves Australia and [Mr A] dies she could not obtain protection in the US because the government will be looking to persecute her for [Mr A’s] death.

21. At the hearing, the Tribunal asked the applicant what she feared if she returned to the United States.  The applicant stated that she feared being reprimanded by [Mr A’s] family for not making efforts to stay in Australia to take care of his needs.

22. The Tribunal noted that it had been provided with statements from members of [Mr A’s] family: see folios 29-36.  The statements are in support of the applicant remaining in Australia, and are laudatory of her.  For example, [Mr A’s] [daughter] stated that the applicant is “very competent and we all love her very much and feel very blessed to have her as part of our family”: folio 34.  This might cause the Tribunal to doubt whether [Mr A’s] family would harm her if the Australian government refused her a visa.

23. The applicant stated that she does not expect them to harm her.

24. The Tribunal explained that a protection visa is only granted to protect people from serious harm or significant harm.

25. The applicant stated that she would feel very bad about herself for not being able to take care of [Mr A].

    Assessment

26. The applicant claims to be a United States national.  For the purposes of this decision, the Tribunal finds that the United States of America is her country of nationality for the purposes of the Convention and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

27. The Tribunal finds that the risk or chance of the applicant being harmed by [Mr A’s] family is remote.  [Mr A’s] family speak very highly of the applicant, and the Tribunal does not accept that they would harm her if the Australian government refused her a visa.  The applicant herself conceded at the hearing that she does not expect them to harm her.  The Tribunal does not accept that the applicant would be of interest to the United States government.

28. After considering all the evidence the Tribunal is unable to satisfy itself that the applicant has a well-founded fear of persecution for a Convention reason or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the United States, there is a real risk that she will suffer significant harm.

CONCLUSIONS

1. 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).

2. 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).

3. 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) for a protection visa.

   MINISTERIAL INTERVENTION

4. The Tribunal notes that the applicant provides care to [Mr A], [an age] year old Australian citizen.  [Mr A] suffers from multiple medical issues.  The evidence provided to the Tribunal is that there are no other family members who can provide this care.  [Mr A] served in the [armed forces] during the second world war.

5. Section 417 of the Act 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.  The Tribunal has considered the Ministerial guidelines set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” and considers that the circumstances of this case raise the following matter:

   ·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

   DECISION

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

   Glen Cranwell
   Member