1600237 (Refugee)

[2018] AATA 3495

1600237 (Refugee) [2018] AATA 3495 (31 July 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1600237; 1703157

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Ms Christine Long

DATE:31 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2018 at 2:15pm

CATCHWORDS

Refugee – Protection Visa – Bangladesh – A minor – Fears persecution due to BNP association – Not a member of the same family unit of a person who has been granted a Subclass 866 (Protection) visa – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Amendment Regulations 2009

Migration Regulations 1994, rr 2.07 2.08, cls 866.230, 866.221, Schedule 2
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
Migration Legislation Amendment Regulations 2012

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

APPLICATIONS FOR REVIEW

1. These are in effect two applications for review of two decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The history of this matter is as follows. The applicant who was born in Australia [in] 2012 is the child of parents who are citizens of Bangladesh and who applied to the Department of Immigration for protection visas on 9 November 2012. The delegate refused to grant the visas to the parents on 17 December 2012. The applicant was born [prior] to the delegate’s decision and there is no dispute that the parents of the child did not inform the delegate of the birth of the applicant prior to the delegate’s decision being made on 17 December 2012.

3.    The parents and the applicant applied to the Refugee Review Tribunal (RRT) about the delegate’s decision on 11 January 2013. On 24 February 2014 the RRT affirmed the delegate’s decision in respect of the parents but found that it had no jurisdiction in respect of the application for review by the applicant. The reasoning of the RRT was that the delegate did not make a decision about the applicant because he was not informed that she had been born and hence there was no RRT reviewable decision in relation to the applicant before it.   

4. The current applications for review by the applicant are in relation to two decisions by the delegate made 9 December 2015. The delegate concluded that under Regulation 2.08 of the Migration Regulations the applicant is taken to have made two applications for a visa of the same class as her parents (non-citizens) at the time she was born. The Tribunal notes that the Regulation also states that the child’s application is taken to be combined with her parents’ (non-citizens) application, that is, the application made 9 November 2012.

5. The delegate refused the applicant’s deemed applications for a protection visa. The delegate took the view that as the applicant had not made any claims for protection herself her applications were for a protection visa based on her membership of the same family unit as her parents. Although the delegate accepted that the applicant was a member of the same family unit as the parents the delegate was not satisfied that the applicant is a person to whom Australia has protection obligations under the Migration Act and Regulations.

6.    On 8 January 2016 the applicant applied to the Tribunal for review of the delegate’s decisions.

RELEVANT LAW

7. 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.

8. 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).

9.    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.

10.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’).

11.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

12.Relevantly to this application the Tribunal also considered Regulation 2.08 of the Migration Regulations in relation to the application for visa by a new born child. Regulation 2.08 essentially requires that the applicant must satisfy the criteria applicable at the time of decision; included in that criteria is cl.866.230. Regulation 2.08 and cl.866.230 state as follows-

Reg 2.08 Application by new born child

(1)  If:
(a)  a non-citizen applies for a visa; and
(b)  after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen;
then:
(c)  the child is taken to have applied for a visa of the same class at the time he or she was born; and
(d)  the child's application is taken to be combined with the non-citizen's application. 

(2)  Despite any provision in Schedule 2, a child referred to in sub regulation (1):
(a)  must satisfy the criteria to be satisfied at the time of decision; and
(b)  at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

Note:    Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.

Cl. 866.230

(1)  If the applicant is a child to whom sub regulation 2.08(2) applies, subclause (2) is satisfied.
(2)  The Minister is satisfied that:
(a)  the applicant is a member of the same family unit as an applicant to whom subclause 866.221(2) applies; and
(b)  the applicant to whom subclause 866.221(2) applies has been granted a Subclass 866 (Protection) visa.
Note 1:    Sub regulation 2.08(2) applies, generally, to a child born to a non‑citizen after the non‑citizen has applied for a visa but before the application is decided.
Note 2: Subclause 866.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.

Clause 866.230 was amended in 2014 into its current form: see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 ( No. 135, 2014). The relevant Explanatory Memorandum says:

Item 36 Clause 866.230 of Schedule 2

524. This item repeals current clause 866.230 of Schedule 2 to the Migration Regulations and substitutes new clause 866.230 of Schedule 2. Clause 866.230 provides for criteria to be satisfied at time of decision.

525. Current subclause 866.230(1) provides that if the applicant is a child mentioned in paragraph 2.08(1)(b), subclause 866.230(2) or 866.230(3) is satisfied.

526. Current subclause 866.230(2) provides both of the following apply:

·the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(2);

·the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

527. Current subclause 866.230(3) provides both of the following apply:

·the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(4);

·the applicant mentioned in subclause 866.221(4) has been granted a Subclass 866 (Protection) visa.

528. New subclause 866.230(1) provides if the applicant is a child to whom subregulation 2.08(2) applies, subclause 866.230(2) is satisfied.

529. New subclause 866.230(2) provides the Minister is satisfied that:

·the applicant is a member of the same family unit as an applicant to whom subclause 866.221(2) applies; and

·the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

530. Two notes are inserted after new subclause 866.230(2). New note 1 provides that subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.

531. New note 2 provides that subclause 866.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act.

532. Current subregulation 2.08(1) provides:

·if a non-citizen applies for a visa; and

·after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to that non-citizen; then

·the child is taken to have applied for a visa of the same class at the time he or she was born; and

·the child‘s application is taken to be combined with the non-citizen‘s application.

533. Current subregulation 2.08(2) provides that despite any provision in Schedule 2 to the Migration Regulations, a child referred to in subregulation 2.08(1):

·must satisfy the criteria to be satisfied at time of decision; and

·at the time of decision, must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

534. The effect of new clause 866.230 is to ensure that a child who is taken to have applied for a Subclass 866 (Protection) visa due to subregulation 2.08(1) is only eligible for the grant of the visa if they are a member of the same family unit as a person who was granted a Subclass 866 (Protection) visa on the basis of being a person to whom Australia has protection obligations, as mentioned in paragraph 36(2)(a) and 36(2)(aa) of the Migration Act.

535. The purpose of new clause 866.230 is to ensure that a child is eligible to be granted the same visa that is held by a member of the same family unit.

CLAIMS AND EVIDENCE

13. As the applicant’s applications for visa are essentially deemed applications under Regulation 2.08 of the Migration Regulations there is no application in writing for the visa before the Tribunal. The applicant/her parents were not interviewed by the delegate about her claims. The applicant made an application for review to the Tribunal on 8 January 2016 and was invited to attend a hearing in relation to her application for review on 25 July 2018.

14.      As the applicant is a minor (born in 2012) the parents appeared before the Tribunal at the hearing of this application on 25 July 2018, to give evidence and present arguments on behalf of the applicant. The parents produced their Bangladeshi passports to the Tribunal and also the applicant’s Bangladeshi passport which was issued [in] 2015. The applicant’s father also produced documents in support of the applicant’s claims for protection, copies of which are placed on the Tribunal files.  Two of the documents are in the applicant’s parents’ language and the father explained that these documents indicate the applicant’s [relative]’s nomination as a BNP candidate for the 2016 elections in Bangladesh and also the votes that he received and the seats he won. The father also gave the Tribunal a document from the [STATE 1] Education Department about the applicant’s school enrolment and some merit certificates and photographs of the applicant from the applicant’s school.

15.      The Tribunal raised with the applicant’s father that on its view of the legislation the applicant would not be eligible to be granted the visa as she was not a member of the same family unit as a person who had been granted a protection visa.

16.      The Tribunal spoke with the applicant’s mother and father about the applicant’s claims for protection. These claims included the following- that the applicant’s [relative] is, and has been for many years, active in BNP politics, including standing for election in 2016, and this will affect/impact on  the applicant; that the applicant’s father has been involved in BNP politics in Bangladesh, although he has not been there or involved for many years, but this will also impact on the family including the applicant;  if the applicant and/or the family return to Bangladesh they will be perceived as wealthy and the children including the applicant could be kidnapped for money and even killed; the applicant’s mother’s brother was kidnapped about two months ago and asked for money; the applicant was born and has been raised in Australia and she is part of the society here, with her own friends and she wants to stay in Australia.

FINDINGS

17.      There is no dispute, and the Tribunal finds, that both the applicant and her parents are nationals of Bangladesh; they produced their passports at the Tribunal hearing and relevant pages of those passports are placed on the Tribunal file.

18.      The Tribunal finds that the applicant was born in Australia [in] 2012 [prior] to a decision made on 17 December 2012 by a delegate of the ( then) Minister for Immigration and Citizenship to refuse the applicant’s parents a protection visa and that the delegate’s decision did not include a decision in relation to the applicant.

19.      There is no dispute that the applicant is the child of [(the parents)]; the Tribunal finds accordingly. The Tribunal notes that a copy of the applicant’s [State 1] Birth Certificate is on the departmental file.

20.      The Tribunal finds that the applicant a member of the same family unit as the parents.

21.      The Tribunal finds that pursuant to Regulation 2.08 the applicant, as a new born child, is taken to have made two applications for a protection visa on the day she was born, as a member of the same family unit as her parents, who applied for protection visas on 9 November 2012 and that her application is taken to be combined with her parents’ applications.

22. There is no dispute that as at the date of this decision the parents of the applicant, or either one of them, have/has not been granted a Subclass 866 (Protection) visa and the Tribunal finds accordingly. There is no suggestion that the applicant is a member of the same family unit of any other person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

23. As the applicant is an applicant to whom r. 2.08 applies she must satisfy the criterion in cl.866.230(2): cl.866.230(1). This requires the applicant to be a member of the same family unit of an applicant to whom cl.866.221(2) applies and that that person has been granted a Subclass 866 visa. Cl. 866.221(2) applies where the Minister is satisfied that Australia has protection obligations under s.36 (2)(a) or (aa) of the Act. Therefore it appears that that applicant cannot be granted the visa unless a member of the same family unit was also granted the visa on the basis of satisfying s. 36(a) or (aa). In the Tribunal’s view this outcome results in the applicant being unable to be granted protection on the basis of her satisfying s.36(2)(a) or (b). Given that the outcome of this reading of the legislation is an unusual outcome, the Tribunal considered the history of the amendments to cl.866.230 and the various relevant Explanatory Memoranda; all appear to link the child’s eligibility for the visa to a member of the family who has been granted the visa. The clause was inserted originally into the Regulations in 2001 and subsequently amended in 2009, 2012 and 2014. In the Tribunal’s view the amendment to the provision in 2009 (Migration Amendment Regulations 2009 (No.13) (SLI 2009, No. 289)) enabled a newborn deemed applicant child to be granted a protection visa if someone in the same family unit was, at the time of decision, a refugee. The amendment of the clause in 2012 (Migration Legislation Amendment Regulations 2012 (No.1)) reflected the introduction of the complementary protection criteria. To the extent that the law applicable for this application is the time of decision criteria applicable when the applicant is deemed to have made her application, namely when she was born [in] 2012, in the Tribunal’s view the outcome  for this applicant would be no different.

CONCLUSION

24.      Having considered Regulation 2.08, and cl.866.230 and the Explanatory Memoranda in relation to its amendments, including in 2014 as referred to above, in the Tribunal’s view the applicant cannot be eligible for the grant of a protection visa, regardless of her own claims for protection, because she is not a member of the same family unit of a person who has been granted a Subclass 866 (Protection) visa.

DECISION

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

   Ms Christine Long
   Member