1612051 (Refugee)

[2019] AATA 4780

1612051 (Refugee) [2019] AATA 4780 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612051

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Justin Meyer

DATE:14 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 June 2019 at 4:27pm

CATCHWORDS
REFUGEE – protection visa – Cambodia – request for referral to minister for intervention – request refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 351, 417, 499
Migration Regulations 1994 (Cth), 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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Cambodia, applied for the visa on 25 June 2014 and the delegate refused to grant the visa on 18 July 2016.

3. The applicant appeared before the Tribunal on 24 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. Certain family members gave oral evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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.

10. The applicant’s representative wrote in a submission to the Tribunal on 14 April 2019:

    “At the outset, we acknowledge that [Mr A] does not meet the criteria for the grant to him of a permanent Protection (subclass 866) visa. Rather, [Mr A] is seeking a referral from the Tribunal to the Minister for Immigration, Citizenship and Multicultural Affairs with a recommendation that he intervene under section 417 of the Migration Act 1958 (‘Act’) to grant [Mr A] a substituted Visitor (subclass 600) visa to allow him to apply for an onshore Partner (subclasses 820/801) visa on the basis of his genuine and ongoing spousal relationship with an Australian citizen, Ms [B].

    It is submitted that [Mr A]’s case, as detailed herein, clearly involves circumstances that are unique and exceptional. There is substantial evidence that the intervention of the Minister to grant [Mr A] a Visitor (subclass 600) visa is warranted in light of the strong compassionate circumstances arising in this case that, if not recognised, could result in serious, ongoing and irreversible harm and hardship to [Mr A]’s Australian citizen child, spouse and elderly mother-in-law. It is submitted that the circumstances of this case touch on several of the considerations set out in the Minister’s Guidelines for the referral of cases for his personal consideration.”

11. This submission was reiterated by the applicant in the hearing.

12. The applicant's claims can be summarised as follows:

    ·He fears that he will suffer psychological and mental harm as a result of being separated from his wife.

    ·He fears that he would become depressed and be unable to cope.

    ·He fears that he will not have access to the support services required to help him cope.

    ·He claims that Cambodia does not have adequate mental health support services.

13. These claims were not pursued meaningfully at any stage from a protection visa perspective and I find that there is no basis for accepting that the applicant has a well-founded fear of persecution or a real chance of significant harm, from these or any other residual or imputed claims.

14. The decision under review therefore should be affirmed.

15. It was requested that the Tribunal refer the matter to the Minister for his personal intervention under s 417 of the Act with a recommendation that the Minister grant the applicant a substituted Visitor (subclass 600) visa.

    Ministerial Intervention

16. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Minister's guidelines regarding Ministerial intervention under s.351, s.417, and s.501J of the Act, but has decided not to refer the matter.

17. The Tribunal notes that it is open to the applicant to directly request the Minister to personally intervene in his matter, pursuant to s.351 of the Act.

18. In examining the Ministerial guidelines regarding requesting the Minister to personally intervene, the Tribunal is also confident the applicant's circumstances had been anticipated by the relevant legislation and the Tribunal's application of relevant provisions is not an unintended consequence of the legislation.

    Conclusion

19. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

20. 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).

21. 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 criteria in s.36(2).

    DECISION

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

    Justin Meyer
    Member