1612309 (Refugee)

[2016] AATA 4778

1612309 (Refugee) [2016] AATA 4778 (21 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612309

COUNTRY OF REFERENCE:                  Serbia

MEMBER:Antoinette Younes

DATE:21 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 December 2016 at 4:28pm

CATCHWORDS

Refugee – Protection visa – Serbia – Complementary protection – Social group – Elderly widowed women – Health issues – Only living family member – Compelling and Compassionate – Ministerial intervention

LEGISLATION

Migration Act 1958, ss 65, 36(2)(a), (aa), (b), (c), 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)-(6), 5K-LA, 499, 417

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 on 5 July 2016 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 Serbia, applied for the visa [in] February 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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 considerations

8. 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 – 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.

   CLAIMS AND EVIDENCE

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. In the application for a protection visa, the applicant claimed that:

    a.She left Serbia subsequent to the death of her son in 2015. Her son was the only living family member in Serbia. She arrived in Australia and has lived with her Australian citizen son who is the only living family member, so that she could be “appropriately cared for and not left to waste away in Serbia”.

    b.Culture of healthcare in Serbia is corrupt and care is usually sought from healthcare professionals like doctors and nurses where bribery is commonly expected. The elderly are mistreated in the Serbian healthcare system with an attitude that the lives of the elderly are unimportant. She is particularly vulnerable because she no longer has any living family members in Serbia who can care for her. She will be reliant on the Serbian healthcare system for her survival. Aged care facilities are extremely limited and mistreatment of the elderly is common. She fears that she would “waste away” in Serbia.

    c.She is seeking Australia’s protection on the basis of complementary protection as there is a real risk of serious harm to elderly widowed Serbian women with significant health issues. She is [age] years of age with substantial health issues. After arriving in Australia, [in] April 2015, she was diagnosed with [health condition] and she also suffers from [other health conditions]. Her health has further deteriorated recently impacting her mobility and ability to independently undertake tasks. Her [health condition] is [worsening]. Her medication is also having side effects. Consequently she requires constant care as supported by medical evidence.

11. In support of the visa application, the applicant’s representatives provided submissions dated 29 February 2016 noting that:

    a.The applicant arrived in Australia on a [temporary visa] [in] March 2015, expiring [in] March 2016. Condition 8503 is attached to this visa.

    b.[In] February 2016, the applicant requested a waiver of condition 8503 on the basis of compelling and compassionate circumstances that have developed since her arrival in Australia and her inability to depart Australia due to her deteriorating ill-health. If the waiver is granted, the applicant intends to lodge a subclass 864 (Contributory Aged Parent) visa and she would likely withdraw the application for a protection visa.

    c.Based on the applicant’s unique and compelling circumstances, she is seeking Ministerial Intervention pursuant to s.417 of the Act. They have been instructed to lodge the application for a protection visa to enable a pathway to merits review and subsequently to access “the Minister in the event that she cannot validly apply for a subclass 864 (Contributory Aged Parent) visa.”

12. In support of the application for review, the applicant provided copies of the application for the [temporary] visa, supporting documentation and a number of identity/citizenship documents. She also provided a copy of a letter dated [February] 2016 from [Dr A] of [a health service]. [Dr A] indicated that the applicant’s daughter-in-law has been attending the clinic since December 2010 and that she has been diagnosed with "[medical condition]” for which she was undergoing [treatment]. In reports dated [February] 2016 and [August] 2016, [Dr B] refers to the applicant’s assessments and diagnosis.  [Dr B] expressed the opinion that all “her illnesses have unfortunately tendencies to progress with ageing” and that it is difficult for the applicant to travel. In the more recent report, [Dr B] indicated that the applicant’s conditions have deteriorated.

13. In submissions to the Tribunal dated 1 August 2016, the applicant’s son who is an Australian citizen provided some background information and indicated that he had wanted his mother to apply for subclass 864 (Contributory Aged Parent) visa but two requests to waive condition 8503 have been unsuccessful. He stated that because his wife suffers from [medical condition], he is unable to accompany his mother back to Serbia or offshore in order for her to be able to make a valid subclass 864 application. He stated that although his mother is currently living in [City 1] and is being looked after by [a relative], he intends to find work in [City 1] to be close. He referred to the significant savings and investment properties of the family.  In letters to the Tribunal from the [relative], she stated that the applicant had come to live with her in [City 1] because [the applicant’s daughter-in-law] is [ill] and is not in a position to look after the applicant.

14. In submissions to the Tribunal dated 5 August 2016 and 6 December 2016, the applicant’s representative reiterated the applicant’s background and essentially submitted that there are compelling and compassionate circumstances including, but not limited to, the applicant’s ill-health, her vulnerable age, and the daughter-in-law having [a medical condition].  The representative submitted that if the applicant were to be forced to leave Australia, this would cause unnecessary hardship and pain to the family and her health would be at risk – the circumstances surrounding the applicant’s case are compassionate and compelling and there is “strong merit in bringing this case to the Minister to intervene” and grant the applicant a visa which would enable her to spend the remainder of her life in Australia with her only family. The applicant’s circumstances fall within Ministerial Intervention guidelines as articulated in PAM3 - the applicant does not have an onshore pathway, she has always complied with visa conditions and maintained her lawful status, and there are strong compassionate circumstances.

    Invitation to hearing

15. On 24 November 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled on 14 December 2016. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice.  The Tribunal advised the applicant that the application may also be dismissed.  Subsequently, the applicant’s representative advised the Tribunal that the applicant does not wish to attend the hearing and that she consents to the Tribunal making a decision on the basis of the available information. The representative noted that the applicant’s consent is provided on the basis that she acknowledges that she does not meet the criteria for the grant of a protection visa and she is intending to seek access to Ministerial Intervention.

16. In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

    DISCUSSION & FINDINGS

17. On the basis of the available information, the Tribunal finds that the applicant is a national of Serbia. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against Serbia for the purpose of s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

18. The applicant has clearly acknowledged that she does not meet the criteria for the grant of a protection visa and that the application is made to enable her to seek Ministerial Intervention. The Tribunal has invited the applicant to appear at a hearing and had advised her that it was unable to make a favourable decision on the basis of the available information. Although on the evidence before it, the Tribunal is satisfied that the applicant is elderly and that she suffers from various clinical conditions as described in the medical reports provided. The Tribunal accepts as plausible that the applicant by virtue of her age, ill-health, and with no family members in Serbia, is vulnerable. However, without having had the opportunity to discuss in the course of the hearing the applicant’s claims and ask more details about the claims, such as the treatment of the aged by the health care system in Serbia and about her own circumstances, the Tribunal is not satisfied that the applicant has suffered any harm amounting to serious or significant harm as contemplated by the Act. For those same reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution and that there is not a real chance or a real risk of serious or significant harm occurring to the applicant if she were to return to Serbia.

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 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). On the basis of the available information and for the same 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)(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 criterion in s.36(2).

    DECISION

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

    MINISTERIAL INTERVENTION

23. The applicant has asked the Tribunal to refer the matter for Ministerial Intervention. The Tribunal is aware that the Minister’s powers are non-compellable and non-reviewable. The Tribunal has carefully considered the material before it and has formed the view that this matter could fall within PAM3 guidelines in relation to Ministerial Intervention; the evidence before the Tribunal which the Tribunal accepts, indicates that the applicant is elderly, has no other relative in Serbia, suffers from serious ill-health, and she is unable to travel to apply for a visa offshore. The applicant has an Australian citizen son and a daughter-in-law who suffers from [an] illness. The Tribunal is of the view that there appear to be compassionate grounds. However, the Tribunal acknowledges that whether the Minister decides to intervene or not is a matter entirely up to the Minister.

    Antoinette Younes

    
    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (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 family

    For 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 family

    For 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.

    …