1601731 (Refugee)

[2017] AATA 2071

1601731 (Refugee) [2017] AATA 2071 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601731

COUNTRY OF REFERENCE:                  United Kingdom

MEMBER:Paul Millar

DATE:18 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2017 at 4:25pm

CATCHWORDS
Refugee – Protection visa – United Kingdom – Particular social group – Elderly and alone – Physical ailments – No means of support – Fear of criminals – Didn’t attend Tribunal hearing

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA , 36, 65, 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. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of the United Kingdom, applied for the visa [in] August 2015.[1]

   [1] The Tribunal’s finding on citizenship is based on copies of pages from the applicant’s United Kingdom passport at folio 126 of the department file.

   CRITERIA FOR A PROTECTION VISA

2. 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, he or she 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.

3. 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 because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

6. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (‘the department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to her evidence to the department and the Tribunal, the applicant claimed protection on the grounds that if she returns to the United Kingdom she will suffer harm, on the basis of her age, health and being alone.[2]  On 15 February 2016 the applicant applied to the Tribunal for a review of the decision of the delegate and she appointed her daughter as her authorised recipient.  By letter dated 7 August 2017, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing to take place on 14 September 2017.  She was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. 

   [2] The applicant's evidence to the department and the Tribunal comprises the contents of her protection visa application forms; submissions to the department dated [in] August 2015 and submissions to the Tribunal made on 15 February 2016. The delegate did not conduct an interview with the applicant.  Also considered as her evidence are various letters and submissions from her children on the department file; written submissions from her daughter made to the Tribunal; medical reports on the department file; a list of her friends in Australia and supporting letter from a church group she assists here both of which are also on the department file.

9. This letter was sent to the postal address specified by the applicant in her review application form as being her authorised recipient’s postal address and, therefore, the address to which she wished correspondence relating to her review to be sent.  On 30 August 2017 this letter was returned to the Tribunal as not delivered.  By letter dated 4 September 2017 the Tribunal advised the applicant that a new hearing date and time had been scheduled.  In this respect, the Tribunal advised the applicant that she was invited to give oral evidence and present arguments at a hearing to take place on 12 October 2017. She was again advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. 

10. This letter was again sent to the authorised recipient’s postal address as specified in the review application form, in the absence of either the applicant or the authorised recipient advising the Tribunal that this was not the address to which correspondence relating to the review was to be sent.  On 11 September 2017, this letter was returned to the Tribunal as not delivered.  As that was the case, by email of 11 September 2017, the Tribunal Registry advised the authorised recipient that the Tribunal’s letter had been returned and requested that she advise whether her postal address, as specified in the review application form was not correct.  This email was sent to the email address given in the review application form as the email address of the authorised recipient.

11. No response was received from either the authorised recipient or the applicant.  On 21 and 22 September 2017 the Tribunal Registry attempted to contact the authorised recipient by telephone but was unsuccessful.  In this respect, the registry officer called the telephone number specified in the review application form as being the authorised recipient’s telephone number.  The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear.  No further communication has been received from her.  She has not contacted the Tribunal to explain her non-attendance or to request that the hearing be rescheduled.  The Tribunal is satisfied that the applicant was invited to appear before the Tribunal and that the invitation was sent to the authorised recipient.  In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

12. According to her evidence, the applicant is [an age]-year-old woman whose husband passed away in 2004.  From 1986 the applicant lived in [a different country] in retirement with her husband.  After he passed away, she ceased living there and, since 2007, she has resided in Australia as the holder of various temporary visas.  The applicant applies for protection on the basis that she has not lived in the United Kingdom since the mid 1980’s and she will be alone there as her children who live there are unable to care for her due to their own commitments.[3]  Being elderly and alone, she is vulnerable to being targeted by criminals.  In addition, she suffers from various ailments for which she will be unable to access proper health care, possibly institutionalised and which will be exacerbated by the cooler climate.[4] She will be unable to undertake the flight to Great Britain because of her health and age.

    [3] According to her evidence, the applicant has [number] adult children who live in the United Kingdom. There is also another child who, in August 2015, was residing in the United Kingdom but was expecting to go and live in [another country].  She has one daughter in Australia with whom she resides.

    [4] Those ailments are [several medical conditions and symptoms listed].

13. To be considered as a refugee within the meaning of s.5H(1)(a) of the Act, the applicant must, at the least, establish that there is a real chance that she will suffer serious harm in the United Kingdom. The applicant fears that as an elderly person returning to the United Kingdom by herself she will be targeted by criminals. That claim appeared to the Tribunal to be highly speculative, first, that she would actually be targeted as such and that she would not be afforded protection by the authorities in the United Kingdom. This claim was predicated on her living in the United Kingdom alone. However, the applicant has, in her evidence, stated that she has at least [number] children living in the United Kingdom and, although she claims that their commitments prevent them from assisting her, the Tribunal is not satisfied on the evidence before it that they could not make arrangements amongst themselves to assist her.

14. Although she has not lived in the United Kingdom for many years, the Tribunal is not satisfied on the evidence before it that this equates with a real chance of a State or non-state agent inflicting serious harm on her.  As the Tribunal has already said, she has at least [number] children in the United Kingdom who can assist her to resettle there.  The Tribunal acknowledges the evidence before it about the applicant’s various ailments but the applicant has not adduced evidence to establish any claim that state or non-state agents will deny her whatever healthcare she needs.  While the applicant speculated that she could be placed in an institution for the elderly that falls far short of establishing that this equates with a real chance of suffering serious harm (as does her apprehension about the cooler climate).

15. The Tribunal acknowledges the applicant’s apprehensions about undertaking a flight from Australia to Great Britain at her age and with her various ailments but the necessity for that is due to her inability to meet the requirements of Australia’s immigration laws. Again, whatever difficulty she encounters in making that journey, does not equate with a real chance of suffering serious harm.  Overall, in her evidence to the department and the Tribunal, the applicant appears to do no more than express a preference for living in Australia. She does not identify nor establish any claim that there is a real chance a state or non-state agent will inflict serious harm on her. 

16. The Tribunal invited the applicant to appear before it at a hearing to enable the Tribunal to raise these issues with her and to give her the opportunity of addressing these concerns. The applicant has not taken that opportunity and the Tribunal finds that it is unable to be satisfied that the applicant holds a well-founded fear of persecution for any of the reasons specified in s.5J(1) of the Act. For the same reasons, the Tribunal is also unable to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to the receiving country, the United Kingdom, there is a real risk that the applicant will suffer significant harm.

    CONCLUSIONS

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

18. 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).

19. 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).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul Millar
    Member