1603193 (Refugee)

1603193 (Refugee) [2019] AATA 3428 (20 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603193
COUNTRY OF REFERENCE:                   Peru
MEMBER:Tania Flood
DATE:20 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 20 February 2019 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Peru – first named applicant – social group – vulnerable woman – abuse by ex-partner – threats – custody dispute for daughter –risk of harm – second named applicant – intimidation, stalking and harassment – relocation – South American agreements – ex partner able to continue harassment – delay in applying for protection – lack of knowledge of process – credible witnesses – consistent evidence – secondary applicants – members of the same family unit – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12 Schedule 2
CASES
MIMAC v SZRHU (2013) FCAFC 91

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Peru, applied for the visas on 12 May 2014 and the delegate refused to grant the visas on 9 February 2016.
The applicants appeared before the Tribunal on 15 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’).
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.
Member of same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and dependent children. The Tribunal is satisfied on the evidence before it that the second named applicant is the husband of the first named applicant; that the third, fourth and fifth named applicants are the children of the first named applicant and that the applicants are therefore members of the same family unit as defined in r.1.12.
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Peru now or in the reasonably foreseeable future for a Convention reason or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Peru there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
The first named applicant is from Lima, Peru. She is married and has three children. In a Statutory Declaration attached to her application form she makes the following claims:
She fears harm in Peru from her former partner at whose hands she experienced abuse and violence. They met when she was [age] and working in the same [workplace]. Within a year of meeting him they moved in together and the relationship went well until she fell pregnant in 2006. At nine months pregnant she discovered her partner was being unfaithful.
When her daughter was born she lived with her parents for three months and then moved back to live with her partner. He became violent toward her and sexually abused her daily. Her would not allow her to leave the house and threatened to kill her and her daughter if she reported him. He also masturbated in front of her daughter and she was afraid for her. While she spoke to her mother on the phone she did not want her to know what was happening to her.
When her daughter was approximately [age] old she became pregnant again. Her partner did not want the child and they argued and he hit her in the stomach. After she lost the baby. She ended up in the hospital but could not tell the doctors what had happened for fear of what would happen to her and her daughter.
While at the hospital she got in touch with [Mr A], her current husband, who was a family friend at the time. He picked her up and took her to his house to recover. Her daughter remained living with her father at this time.
When she returned to her family home she told her mother some of the things that had happened. She went back to her ex-partners house to get her daughter and he tried to force her to say but she managed to go back home with her daughter.
From then on he started threatening her over the phone and this is when she finally reported him. She did not report the abuse because she had no evidence but she tried to get him to make financial payments to support his daughter. They entered conciliation and an agreement was reached that he would pay 300 sols per month on condition he be allowed to see his daughter three times a week.
The arrangement did not work and her partner did not comply with the order. He only paid three times and then stopped. When he came to pick up his daughter he would not bring her back. When she went to pick up her daughter he would hurt her again. On a number of occasions she reported his non-compliance to the police. This went on until a few months before she left for Australia.
In approximately August 2010 she went to a government department (not the police) to report the abuse from her ex-partner. While the agency eventually believed her they offered her no support.
Her current husband [Mr A] moved to Australia in May 2010 on a [Visa 1] and promised to help to get her out of danger. By then they were engaged. They were officially married by proxy on [date] December 2010.
Because her ex-partner was attempting to take her daughter away she moved into [Mr A]’s house but she still had to allow her daughter to visit her father three times a week. She had him collect her daughter from her family home because she did not want him to know she was living at [Mr A]’s house. Somehow he found out and by this time the whole of his family, and his new partner were threatening her.
She went to court and was ordered full custody of her daughter. A judge later required her ex-partner to sign papers to allow her daughter to travel with her to Australia. There was an additional paper required and she had to pay him approximately US$400 to sign it.
The threats from her ex-partner continued until the last day before they left for Australia. She arrived in Australia [in] March 2012 on a [Visa 1]. [Mr A] was granted a dependency visa when his [Visa 1] expired. They had their first child together in 2013. [Mr A] unsuccessfully applied for a sponsor visa. It was only after she was referred to a social worker and psychologist and eventually referred to [a community legal service] that she found out she may be eligible to apply for a Protection visa.
She is aware that her former partner continued to threaten her family in Peru. He learnt through [social media] that she was pregnant. About two months before the application was made she spoke to her ex-partner on the phone to tell him to stop threatening her family. He said that if she returned to Peru he would kill her, her husband and their children. He also told her to withdraw her complaint to the court or he would kill her and her family. The order of the court requires him to pay all the money he has not paid for the last six years.
If she returns to Peru she fears he will find her and she and her family will be at risk. He continues to threaten her family.
Even if she moves to a different town she thinks he will find her and hurt her. She would be living in constant fear.
There is nothing the authorities could do to protect her. Even though she has been before government agencies and courts in the past they have never offered her protection.
In a Statutory Declaration provided to the Department the second named applicant made the following claims:
He fears if he returns to Peru he will suffer harm at the hands of his wife’s former partner.
He met his wife in 2006 and they became friends through her family. At the time she was with her former partner. He was aware from what his wife told him that she and her former partner were having problems.
In around 2008 his wife called him from hospital and asked him for help. He took her to her parent’s house and continued to visit her there. In 2009 their romantic relationship developed.
When his wife’s former partner realised they were romantically involved he found out the number of his parent’s house and started calling him. He asked to speak to his wife. He saw him hanging around his house a few times and he was afraid he would harm him. He did not contact the police because in Peru unless there is a major threat the police won’t do anything about it.
He and his wife became engaged in April 2009 and about a year later, around the time he was coming to Australia, she confided to him that her former partner had abused her on occasions. In December 2010 they were married even though he was in Australia. Documents were sent to the Peruvian consulate in Australia and they authorised it. He nominated his brother to represent him in a ceremony held in Peru.
After they married he arranged for his wife to live with his parents. In 2011 his wife started getting threatening phone calls from her former partner. At this time she made a formal complaint to a government office and they then issued a guarantee, which means that in the event that anything happened to her the police will automatically charge or arrest the person who is subject to the complaint.
He applied for a [Visa 2] but his application was refused because the company he engaged in Peru provided some false documents. He and his wife only became aware that they could apply for protection when their son was born.
Hi wife has told him that her former partner continues to call and threaten their family. He has said he will kill them if they return to Peru.
There is no protection in Peru. If he were to make a complaint in relation to these threats the police would not act.
They could not relocate within Peru because it would be possible for him to locate them. He has already threatened that he has family located throughout Peru meaning no place is safe for them.
On 1 April 2015 the first named applicant provided an additional statement which is summarised as follows:
When she was making custody arrangements for her daughter in Peru and for her to travel to Australia a judge ordered that her former partner was not allowed to call or make other types of contact with them. The judge ordered that [social media] was the only way that she would allow him to access information about his daughter. Since then she has allowed contact with him on [social media]. On two occasions she removed him as a friend because he made offensive personal comments about her and called her a prostitute. She re-added him on both occasions because she felt she wasn’t following the orders she agreed to. Also, it is his right to see his daughter. Her former partner has also contacted her on occasion through [social media] messenger to discuss child maintenance. He tries to convince her to remove her claim for child maintenance but she cannot do that. When she disagrees with him he becomes aggressive. The way he speaks to her in those messages terrifies her. She is worried that if her daughter is forced to return to Peru she would have to go with her and this also scares her.
Her family in Peru continues to be harassed by him and every time he receives mail in connection with child maintenance that he owes he calls her mother and threatens her and says he will harm her and her child. His mother has also threatened her mother saying that if her son goes to prison for something she has done then her mother will pay for it.
After the protection visa interview with the delegate a further submission was produced. It is submitted that the first named applicant is at risk of serious harm on account of her membership of a particular social group – women in Peru who are at risk of physical and sexual assault. Further, it is submitted that if the first named applicant returns to Peru there is a real chance she will face discrimination and a series of cumulative harms amounting to persecution – a) a threat to her life or liberty; b) significant physical harassment; c) significant physical ill-treatment; d) denial of access to basic services where the denial threatens her capacity to subsist. It is also submitted that she will be denied access to or will be unable to access an adequate level of state protection. The submission states that country information indicates an ineffective and inadequate policing and judicial system with regards to the protection of women subjected to physical and sexual abuse.
It is further submitted that the first named applicant is at risk of significant harm in that she will be arbitrarily deprived of life or subjected to torture or cruel or inhuman or degrading treatment or punishment.
It is submitted that the second named applicant is at risk of significant harm in Peru on account of the relationship he has with his wife. In Peru he faced ongoing intimidation, harassment and stalking at the hands of his wife’s former partner. The circumstances have become more dangerous for him since his marriage. He fears that in the course of protecting his wife and children from harm he will harmed and even killed. It is submitted that the second named applicant is at risk of being arbitrarily deprived of life or being subjected to torture.
As to their ability to relocate elsewhere in South America and Peru it is submitted that if it is easy for her to relocate to [Country 1] where her sister is living then that means it is similarly just as easy for her former partner to travel and find her there. If she relocated to live with her sister she would also be at risk. In considering relocation within Peru factors such as financial difficulties and lack of familial networks need to be considered.
As to protection afforded by the legal system it is submitted that despite the first named applicant detailing her complaints of serious abuse to the judge her former partner was still awarded access to her daughter.
As to being afforded protection by her husband it is submitted that living at her husband’s family home did not provide her with an adequate form of protection as she continued to suffer harassment on a weekly basis before departing Peru. Her attacker found new and different ways to continue harassing her. In any event, if her husband is forced to protect her he will also end up in a confrontation with her ex-partner and will killed doing so.
As to her husband adopting her first born child and this overcoming the problems she faces with her ex-partner it is submitted that this process is unlikely because her former partner must relinquish his paternity and/or could only be achieved when the child reaches eighteen. Her former partner has already told her that their daughter will never become the daughter of her husband. In any event, he will still remain her father. Any attempt at adoption would likely make the situation worse. It is also submitted that her ex-partner continued to insist on seeing his daughter on a weekly basis, exhibiting an ongoing interest in accessing his daughter and asserting his rights as her father. This casts doubt on suggestions he no longer has an interest in supporting her and would be open to relinquishing his paternity. Although he has not provided financial support as required this does not mean he has no interest in his own child.
Country information is cited about the inadequacy of state protection for victims of domestic violence in Peru. In addition, it is submitted that a culture of impunity exists for male perpetrators of violence against women in Peru. Socio-cultural values have a strong influence on the daily operation of the courts and policing systems. It is the toleration of the state of harm carried out against the first named applicant that renders the harm persecution. As such the state is involved in perpetrating the violence against her. This also impedes the reasonableness of relocation with Peru.

It is submitted that suggestions in the PAMS indicate that legal or socio-economic reasons or child-care responsibilities may also prevent women from travelling freely or living on their own or without family members, limiting their ability to relocate within their home country.
The applicants appeared before the Tribunal on 15 February 2019. The first and second named applicants gave evidence in their own right as well as on behalf of their children. They provided details about their backgrounds in Peru, the circumstances in which they met and married, the circumstances surrounding the claimed violence experienced by the first named applicant at the hands of her former partner, the circumstances surrounding her attempts to obtain child support from him and their fears that their return to Peru will bring them into contact with her former partner and thereby put them and the children at risk of physical harm.
FINDINGS AND REASONS
Country of reference
The first, second and third named applicants have produced copies of their Peruvian passports. The Tribunal accepts they are nationals of Peru. There is no information to suggest that the fourth and fifth named applicants, who were born in Australia, are not entitled to Peruvian citizenship through parentage. The Tribunal has assessed the applicants’ claims against Peru.
Fear of harm from first named applicant’s former partner
Despite some minor discrepancies between their evidence the Tribunal found the applicants to be credible witnesses whose individual testimony largely supported each other’s claims. They provided generally consistent evidence throughout the process and the Tribunal did not form any significant concerns in relation to the reliability of their evidence about core elements of their claims. As the Tribunal indicated to them at hearing, it accepts the first named applicants account of her prolonged and serious physical abuse suffered at the hands of her former partner. The Tribunal considers that the medical and psychological evidence submitted by the first named applicant is also consistent with her account of her experiences of violence and abuse at the hands of her former partner and her continuing fear of him.
The Tribunal accepts the first named applicant’s former partner physically and sexually abused her over a number of years. The Tribunal accepts that she ultimately left him after suffering a miscarriage due to his abuse and returned to live with her family. The Tribunal accepts she formerly knew her current husband through her family and that he assisted her to leave the hospital and that their romantic relationship grew as a result of the support he provided her. The Tribunal also accepts, on the available evidence that the first named applicant and her former partner entered into a Conciliation Agreement in Peru after they separated which provides for him to pay her 300 Peruvian soles per month in child support and enables him weekend visitation rights with his daughter (the third named applicant). The Tribunal also accepts, on the available evidence that he did not comply with the terms of this agreement resulting in further proceedings before the court whereby he is ordered to rectify the non-payment of child support payments. Lastly, the Tribunal accepts there has been some limited contact between the applicants and the former partner in Australia which was threatening in nature and that similar threatening behaviour has been demonstrated toward the first named applicant’s mother in Peru in connection with ongoing court matters in respect of his non-payment of child support. The Tribunal found the first named applicants evidence in respect of her attempts to gain police protection in Peru persuasive and consistent with the country information concerning domestic violence and protection for victims.
The Tribunal accepts the explanation provided by the applicants as to why their applications for protection were submitted a considerable time after their arrival in Australia. During the hearing they claimed they were unaware that they could apply for protection visas until after the birth of their second child when the first named applicant was referred to a social worker and mental health nurse for assessment. The Tribunal found their explanation to be plausible, in view of the grounds for protection, and accepts this is the reason for the late application for protection visas.
The Tribunal sought to explore whether there are any ongoing legal proceedings in Peru in relation to custody and maintenance payments for the applicants eldest daughter. The first named applicant said that there is no formal custody agreement in place but that a judge ordered her former partner to sign the necessary papers to enable them to come to Australia on a [Visa 1] and which he ultimately did. The applicants also gave consistent evidence in respect of the current status of legal proceedings in Peru in respect of the maintenance of their eldest daughter. They said that the court order demanding rectification of non-payment of child maintenance is still in place and that documents are sent to the first named applicant at her mother’s address periodically in regard to this. They said that these ongoing demands are in fact the source of continuing threats by the former partner to have the case withdrawn and add to their fear of what he might do on their return to Peru.
After the hearing the applicant’s produced documentation which supports their claims including government issued documents in respect of ongoing proceedings over the non-payment of child maintenance which are dated post their arrival in Australia. In addition, the documents provide further evidence of complaints made to the authorities by the applicant and her mother over the threatening behaviour of her former partner.
The Tribunal also sought to explore at the hearing whether there has been contact between the applicant’s eldest daughter and her biological father since they came to Australia. The applicants said that the former partner has no interest in the child other than as using her as a means of getting to her mother. Similarly, they said the child, upon recently being told about the problems with her biological father, has said she does not want to see him.
Having considered all the available evidence, the Tribunal is satisfied that if the applicants return to Peru there is a real chance their presence would come to the former partner’s attention in connection with the ongoing court proceedings over child maintenance. While the applicants indicated at hearing that they won’t independently pursue child support payments the Tribunal formed the view, based on their responses, that they respect the justice system and would comply with any order to attend court if they are present in Peru and required to do so. Due to this fact, the Tribunal has adopted a cautious approach in this matter and is prepared to accept that there is a real chance the applicants will come into contact with the former partner if they return to Lima.
The Tribunal accepts that the former partner was violent towards the first named applicant over a sustained period of time and has continued to threaten her mother over the court proceedings. The Tribunal also accepts he has contacted them in Australia over this matter and issued threats to both the first and second named applicants. The Tribunal considers that this conduct over a number of years is indicative of someone who will be motivated to continue to harass and abuse the first named applicant if her presence in Peru is known to him. The Tribunal accepts that he knows where both the first named applicant’s family resides in Lima and that this heightens the risk of her being located and harmed by him. The Tribunal is satisfied there is a real chance that the first named applicant may once more fall victim to serious physical harassment or ill-treatment at the hands of former partner.
The Tribunal acknowledges the applicants claims that threats have also been directed at the second named applicant. The Tribunal accepts the second named applicant once had an unpleasant phone conversation with his wife’s former partner while in Australia. However, the evidence of both the first and second named applicants is that he has largely been kept removed from the situation at the request of the first named applicant. The Tribunal is not persuaded in the circumstances that there is a real chance or real risk that he will face serious or significant harm from his wife’s former partner.
Under the Refugees Convention, a refugee is a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. One or more of these reasons must be the essential and significant reason for the persecution. It is well established that women are capable of forming a particular social group.[1] The Tribunal finds that women in Peru share, or are perceived as sharing, an innate or immutable characteristic, namely their gender and that this characteristic distinguishes Peruvian women from society at large. The Tribunal is satisfied that the essential and significant reason that the first named applicant has been and would be harmed by her former partner is because of her membership of a particular social group of women in Peru.
[1] MIMA v Khawar (2002) 210 CLR 1.
The delegate found the applicants would be able to access state protection in Peru against harm from the first named applicant’s former partner. Based on available country information the Tribunal disagrees.
The USDOS country report on Human Rights Practices for 2017 states that violence against women and girls remains a serious national problem. The government of Peru reported that 68 percent of women had suffered at least one incident of serious physical, sexual or psychological abuse. While the law criminalises rape and femicide and prohibits domestic violence the Ombudsman’s Office found that 40 percent of police stations did not have adequate facilities or specialised training to deal with complaints. Enforcement of the laws is reportedly ineffective and lax.[2]
[2] US State Department, Country report on human rights practices for 2017.
A response to an information request prepared for the Immigration and Refugee Board of Canada (IRBC) on 13 March 2018 reports on domestic violence, legislation, state protection and support services for victims and quotes various sources. The view that violence against women is a serious problem in Peru is repeated by Human Rights Watch (18 January 2018) and the United Nations (March 2017). The Human Rights Council fact-finding mission noted the “continued existence of widespread traditional patriarchal attitudes and values (machismo) which perpetuate a culture of violence against women (UN, 26 June 2015). According to an article published by The Conversation and written by Jelke Boesten, Reader (Professor) in Gender and Development at King’s College London… “sexual, physical, emotional and economic abuse of women in their homes are all prevalent, but have been largely ignored by authorities and society alike (10 August 2016). According to a 2017 report by the National Observatory of Criminal Policy of the Ministry of Justice and Human Rights, reports of domestic violence against women have “increased considerably” in recent years. According to Boesten, protests in 2016 followed two high profile cases in July 2016 in which men who attacked women received light sentences. As cited in a 2016 article in The Guardian, then Minister for Women Ana Maria Romero referred to the march as a “cry against impunity” (13 August 2016). Information provided to researchers of the IRBC report (19 February 2018) states that there are problems regarding the training and awareness of the staff who receive complaints of domestic violence and other forms of violence against women. Authorities frequently do not want to accept the claim because it is not considered serious, due to lack of interest, or due to a lack of proof provided by the victim, even though the law states that such proof would not be required. According to a 2016 article in The Guardian (13 August 2016) Peru’s human rights Ombudsman, Eduardo Vega, indicated that the state treated female survivors of physical and sexual violence with “absolute neglect”. According to the 2017 edition of Amnesty International’s annual report, in 2016, most cases of murder and attempted murder of women and girls “were not investigated or resulted in suspended prison sentences” (22 February 2017). In its March 2017 submission to the Universal Periodic Review, the UNHCR noted “low numbers of investigations and prosecutions” in cases of domestic and sexual violence, as well as femicide (March 2017).
Based on this reporting, the Tribunal is satisfied that domestic and other forms of violence against women in Peru is commonplace and that traditional patriarchal attitudes and values perpetuate a culture of violence against women. The Tribunal is also satisfied that such attitudes contribute to a level of impunity for crimes of domestic and other violence against women and also impact on the willingness of police and other authorities to provide protection to victims. Domestic and other violence against women therefore often goes unreported and where it is reported it is not treated with the seriousness it deserves. Accordingly, the Tribunal is of the opinion that the first named applicant will be unable or unwilling to access state protection against the harm she fears from her former partner in Peru.
The Tribunal has also considered whether it is possible for the applicants to relocate to another part of Peru in order to avoid harm from the former partner. For the reasons outlined above, the Tribunal accepts that if the applicants were to return to Lima the former partner and father of the third named applicant would become aware of this fact. The Tribunal considers there is also a chance the former partner could learn of the first named applicant’s whereabouts elsewhere in Peru as a result of the ongoing court proceedings over child maintenance. The Tribunal cannot be certain on the available evidence that the Conciliation Agreement provided by the first named applicant is still in effect given her absence from the country. Regardless, the Tribunal also cannot rule out the possibility that the third named applicant’s father will not initiate proceedings for similar visitation rights with his child, even if as claimed the reason is only to gain access to the first named applicant with a view to harming her. In such circumstances, the Tribunal considers there is a chance, which is not remote, that the first named applicant’s feared persecutor would be able to locate her wherever the family lives in Peru. Therefore the Tribunal is satisfied that relocation is not an option in these circumstances.
For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsection 36(3), (4), (5) and (5A) of the Act. Subsection 36(3) provides:
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.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied.
The Full Federal Court in MIMAC v SZRHU (2013) FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
The Tribunal has consulted country information regarding the free movement of South American citizens which provides:
CAN
Peru is a member of the organisation known as the Andean Community of Nations (Comunidad Andina de Naciones – CAN). It is an intergovernmental organisation that was created by Bolivia, Peru, Venezuela, Colombia and Ecuador.[3] CAN was founded to encourage industrial, agricultural, social and trade cooperation. It aims to promote the expansion of markets and to guarantee effective economic development in the region.
A background paper prepared for a 2007 International Organisation for Migration (IOM) workshop provides the following information relating to the mobility provisions for citizens of CAN member states:
Entry: As of January 2005, Member State nationals may enter any other Member State as tourists for a period of up to ninety days by presenting a national identification document that is valid and in effect in the issuing country, without the need for a consular visa. This permission to enter may be renewed once for an additional ninety day period. To enter Venezuela Member States nationals must present their passports.
Residency: Andean migrant workers shall enter and reside in a Member State in coordination with the competent national agencies of the host Member State and in accordance with the Community legislation in effect, or if lacking, with relevant national legislation. The Labour Immigration Office shall issue to national workers of other Member States documentation that accredits their status, qualifying them before the competent immigration authorities to make arrangements for residence in the host country.
Employment: Categories of persons: The IAML (Andean Labour Migration Instrument) permits the unhampered movement and temporary residence of Andean Nationals in the sub-region as wage-earning workers. Labour migrants are classified into four categories: individually moving workers, company workers, seasonal workers and border workers. [4]
MERCOSUR
The full member states of another organisation, the Common Market of the South (Mercado Comun del Sur, Mercosur) are Argentina, Brazil, Paraguay, Uruguay and Venezuela.[5] The associate member states are Bolivia, Chile, Colombia, Ecuador and Peru. Associate members do not enjoy full voting rights or complete access to the markets of Mercosur’s full members. Mercosur membership is based on an economic and political agreement to promote the free movement of goods, services and people among member states. Mercosur was created in 1991 when Argentina, Brazil, Paraguay, and Uruguay signed the Treaty of Asuncion, an accord calling for the “free movement of goods, services, and factors of production between countries.” The four countries agreed to eliminate customs duties, implement a common external tariff of 35 percent on certain imports from outside the bloc, and adopt a common trade policy toward outside countries and blocs. The charter members hoped to form a common market similar to that of the European Union, and even considered introducing a common currency. Many experts say Mercosur has failed to live up to its ambitions of integrating the region. [6]
UNASUR
The Union of South American Nations (UNASUR) was formed in May 2008 by leaders of CAN and MERCOSUR. Modelled after the European Union, UNASUR serves as a platform for regional integration on trade, security and politics.[7] The members of UNASUR are Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela.[8] One of the aims of UNASUR upon its creation was the progression towards a South American citizenship, beginning with gradual recognition of the rights of a member state’s nationals to reside in other member states.[9] In December 2014, the concept of South American citizenship was approved by the UNASUR member states. The proposal includes the creation of a ‘single passport’ in order to give nationals of UNASUR states the right to reside and work in any other member state, and provide legal protection to migrants.[10] In May 2015, UNASUR Secretary General Ernesto Samper called for an increase in efforts towards the establishment of South American citizenship.[11] An article published on 14 August 2018[12] indicates that UNASUR has not realised this objective.
[3] International Organisation for Migration 2007, Free Movement of Persons in Regional Integration Processes, International Dialogue on Migration Intersessional Workshop, 18-19 June.
[5] Romero, S 2012, ‘With Brazil as Advocate, Venezuela Joins Trade Bloc’, The New York Times, 31 July
[6] Immigration and Refugee Board of Canada 2012, Colombia: Whether Colombian citizens are required to have their passports stamped upon exit from and entry into Colombia: if so, whether this procedure applied uniformly at all immigration posts, UNHCR Refword, COL104008, 29 February; Klonsky, J, Hanson S & Lee, B 2012, Mercosur: South America’s Fractious Trade Bloc, Council on Foreign Relations, 31 July
[7] Klonsky, J, Hanson S & Lee, B 2012, Mercosur: South America’s Fractious Trade Bloc, Council on Foreign Relations, 31 July
[8] Robertson, E 2014, ‘UNASUR Moves toward Continental Freedom of Movement, Venezuela makes Equality call, NSNBC International, source Venezuelanalysis.com, 6 December
[9] Immigration and Refugee Board of Canada, 2008, Guyana: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognised and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship. 25 August
[10] Robertson, E 2014, ‘UNASUR Moves toward Continental Freedom of Movement, Venezuela makes Equality call, NSNBC International, source Venezuelanalysis.com, 6 December
[11] UNASUR chief calls for concrete steps towards regional integration, 2015, Global Post,
[12] G Gonzalez, Americas, ‘With UNASUR foundering, Latin America longs for integration’ 14 august 2018 type="1">
Based on the above information, the Tribunal concludes that Peru is a member of CAN and member state nationals can enter other member states for up to 90 days without the need for a visa. This permission to enter may only be renewed once. Peru is also an associate member of Mercosur. There is information that Peruvians are able to travel as tourists to the member and associate member states of Mercosur. However, as an associate member state it is doubtful that they enjoy the same entry and residency rights as full member states. While Peru is a member of Unasur the available information indicates that the Unasur objective of creating a South American citizenship to enable member state nationals to reside in other member states has not been realised.
The Tribunal considers that if the applicant attempts to gain entry to another South American country it would be for reason of seeking asylum rather than as a ‘tourist’ or on an approved work agreement. Once this purpose is disclosed there is a significant risk that she will not be afforded the right to enter the other country under agreements such as the CAN and/or Mercosur agreements. The Tribunal is therefore not satisfied that the applicant, as an asylum seeker, has a right to enter and reside in another member state.
The Tribunal considers there is no conclusive information before it that the applicant has a right to enter and reside in any other country. The Tribunal finds therefore that s.36(3) of the Act does not apply to exclude the applicant from Australia’s protection obligations.
Regarding the other applicants, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) of the Act. It therefore follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Tania Flood
Member

[2019] AATA 3428

20 February 2019

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