1609163 (Refugee) - [2019] AATA 6564

1609163 (Refugee) [2019] AATA 6564 (4 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609163
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Gabrielle Cullen
DATE:4 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 December 2019 at 9:53am

CATCHWORDS
REFUGEE – protection visa – Samoa – religion – Mormon – drinker of alcohol and smoker – access to mental health services – pressure to return to the Church – non-Convention harm – removal from child’s place of burial – lack of commensurate employment opportunities – adjustment to life in Samoa – compassionate circumstances – serious, ongoing and irreversible harm – health needs of Australian citizen father – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAFZ v MIBP [2016] FCA 1081
SZRSN v MIAC [2013] FCA 751
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 on 27 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant), a citizen of Samoa, claims to fear return on account of the mental difficulties he has faced due to the death of his son, [Child A], in Australia and as he will be unable to obtain work at the level held prior to his departure or at all. He also refers to facing difficulties obtaining professional help for his grief as he is a Mormon and this will not be accepted. He refers to the problems associated with not finishing his studies in Australia, and as he drinks alcohol and smoking as a way to cope with his grief and that this is not accepted by his religion.
The applicant arrived in Australia [in] January 2009 on a [student visa]. On 14 December 2011 the Department cancelled the applicant’s student visa and he remained in Australia without a valid visa until he was located by [State 1] police in relation to a traffic matter and granted a number of bridging visas. He, together with the other applicants, applied for protection visas on 8 January 2015.
The second, third, fourth, fifth and sixth named applicants are the wife and children of the first named applicant and citizens of Samoa. They arrived in Australia [in] May 2009 on student dependent visas. They all completed Part D forms being applications for members of the family unit who do not have their own claims for protection. However, at the Tribunal hearing the second named applicant, being the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1609163 (Refugee)

Details

AGLC: 1609163 (Refugee) [2019] AATA 6564
Case: [2019] AATA 6564
Decision Date: 4 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered protection visa applications made by a family. The applicants sought review of the Department's decision to refuse their applications. The Tribunal had before it the Department's file, material referred to in the delegate's decisions, and additional evidence including the applicants' visa applications, medical documents relating to their deceased son, correspondence from the applicants, a psychologist's report concerning the first applicant's mental health, and evidence regarding the second applicant's father, an Australian citizen, who required her care due to his own medical conditions.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a protection visa under section 36 of the Migration Act 1958. This required the Tribunal to determine if the applicants were persons in respect of whom Australia had protection obligations, either as refugees under section 36(2)(a) or on complementary protection grounds under section 36(2)(aa). The Tribunal also considered the definition of a "well-founded fear of persecution" under section 5J and the meaning of "significant harm" under section 36(2A).

The Tribunal found that the applicants did not satisfy the criteria for a protection visa. It was not satisfied that they had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal was not satisfied that there was a real risk of significant harm to the applicants as a necessary and foreseeable consequence of their removal from Australia. The Tribunal noted that while the applicants had experienced grief and mental health challenges, including the death of their son and the need to care for an ill Australian citizen father, these circumstances did not establish a basis for protection obligations under the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant criteria for a protection visa are outlined in the Appendix.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decisions and other material available to it from a range of sources. This includes, but is not limited to, the following.·The applicants’ protection visa applications dated 8 January 2015, including a handwritten letter outlining the first named applicant’s claims for protection and identity documents.·Numerous medical documents relating to [Child A], who was also an applicant for protection before the Department and the son of the first and second named applicants’ son.·Death Certificate of [Child A] indicating he died [in] 2015 from complications associated with [Medical Condition 1] and is buried at [specified] cemetery.·Email from the first named applicant to the Tribunal dated 21 June 2016 as to why they are seeking review.·Oral evidence of the first and second named applicants provided at the Tribunal hearing held on 11 June 2019.·Letter from [a doctor] dated 6 June 2019 to [Mr B], psychologist thanking him for seeing the first named applicant in relation to stress, symptoms of depression and anxiety, grief, alcohol misuse and visa problems.·Report of [Mr B], psychologist with regard to the first named applicant dated [July] 2019.·Evidence of [Mr C], the father of the second named applicant, is an Australian citizen.·Letter from [Dr D] dated 17 July 2019 indicating that [Mr C] suffers from multiple medical problems, outlining these and stating that he needs his daughter the second named applicant to care for him.·Medical report from [State 1] Health relating to [Mr C]. ·Letter from [the] Director of [Company 1] dated [July] 2019 noting the first named applicant is employed full time as a [Occupation 1] and has been since [December] 2014. He states that the first named applicant is of good character, hardworking, caring and loyal. He claims he was there for the first named applicant when he lost his son and these were difficult times. He notes the family has continued to grieve and this has led to difficulties for the first named applicant, although he is finally obtaining treatment. He asks the Tribunal consider the family’s mental health and the benefit they have to Australia.·Letter of support from Australian citizen, [Mr E] advocating for the family to stay in Australia as they provide tremendous support to their community and have been involved in community work in the [Suburb 1] area. He refers to the death of their son and the suffering they have faced since. He notes that they are finally seeking professional help from medical people. He claims they need to stay in Australia to receive the help they need and if they return to their country their mental and physical health will worsen. He claims a person cannot go and seek mental health Doctors in Samoa as it is frowned upon and against the faith. ·Photos of [Child A]’s funeral and grave in Sydney.·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

Decision

Reasons for decision

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants Protection visas.Gabrielle CullenMemberCRITERIA FOR A PROTECTION VISAThe 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.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. 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). 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, which are extracted in the attachment to this decision. 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), which are extracted in the attachment to this decision. Mandatory considerationsIn accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.ATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c)that is not inconsistent with Article 7 of the Covenant; or(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a)that is not inconsistent with Article 7 of the Covenant; or(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a)for the purpose of obtaining from the person or from a third person information or a confession; or(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c)for the purpose of intimidating or coercing the person or a third person; or(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system...36Protection visas – criteria provided for by this Act… (2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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