1612610 (Refugee)

[2020] AATA 179

1612610 (Refugee) [2020] AATA 179 (3 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612610

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Tania Flood

DATE:3 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2020 at 1:22pm

CATCHWORDS
REFUGEE – protection visa – Republic of Korea – complementary protection – intellectual disability – age – language ability – proximity to family support – limited ability to function independently without family support – lack of evidence of autism diagnosis – ministerial intervention recommended – strong compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 438(1), 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 travelled to Australia on multiple occasions between 2003 and 2007. He most recently arrived in Australia [in] December 2007 as the holder of a [temporary] visa (subclass [specified]). He has previously applied for a [different temporary] visa (subclass [specified]) which was refused. He lodged an application for a Protection visa on 3 October 2014. This application was deemed to be invalid. He lodged another application for a Protection visa on 15 December 2014.

3. On 27 July 2016 a delegate of the Minister refused his Protection visa application.

4. The applicant appeared before the Tribunal on 10 December 2019. The Tribunal heard oral evidence from the applicant’s parents on his behalf.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

6. 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.

   Refugee criterion

7. 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).

8. 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.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

20. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    Material under a public interest non-disclosure certificate

21. The Department files contain public interest non-disclosure certificates in respect of s.438(1)(a) related documents. The Tribunal considers that the certificates are not valid certificates as the material relates solely to ‘internal working documents and business affairs’. No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identification of the applicant which is not in dispute and the process for checking application validity and receipting.   The Tribunal’s view on the matter of the certificates was discussed during the hearing and no further comment was made by the applicant or his parents.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to South Korea for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to South Korea there is a real risk that he will suffer significant harm.

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

    Summary of claims

24. According to information contained in his application for a Protection visa, the applicant is a [citizen] of the Republic of Korea. He was born in Seoul and resided in Kangnam, Seoul, before coming to Australia. He does not have family members in South Korea. His parents and [sibling] are Australian citizens, living in Australia. He completed primary and secondary school in South Korea. He is unemployed and has no previous work history. He was exempt from military service in South Korea because of his intellectual disability.

25. In his Protection visa application, the applicant made the following claims:

26. He left South Korea because he suffers from an intellectual disability. His family members brought him to Australia because he does not have family in South Korea who can support him.

27. He claims that people with intellectual disabilities in South Korea are not treated well, and there is a lack of resources available.

    Submissions to the Department

28. The applicant submitted the following documents attached to his Protection visa application:

29. A medical report by Dr [A], [Specialist], dated 27 November 2013 addressed to the Department. The report states that the applicant had been reviewed by psychiatrists and psychologists in Australia, and that he has a mild intellectual disability. The report states the applicant shows no definite symptoms and signs of autism or attention deficit disorder. Dr [A] opined that the applicant is independent of activity of daily living, exhibits work potential to live independently and hold a job in the community.   The report concludes that the applicant is a ‘very healthy gentleman’ who does not require medical attention and has a ‘sound medical history’.

30. A psychologist report dated 10 December 2010 by clinical psychologist, Doctor [B]. The report states that the applicant was first assessed in September 2003 and has significantly improved in his functional ability since then, but that the lack of formal status in Australia has prevented him from gaining the kind of programming and rehabilitation he needs.   The report notes the applicant lived for 8 months in South Korea on his own in 2007 which led to a significant improvement in his life care skills and self-care skills.  Dr [B] opined that the applicant has the potential to undertake a meaningful role in society and with the assistance of his parents he could be both independent and find a form of employment to support himself with.

31. An occupational therapy assessment report, indicating that the applicant was assessed [in] December 2010 states that the applicant is independent in self-care tasks and able to perform several tasks of basic money management.  The report indicates he would be capable of living independently and assisting in basic [duties] in his father’s business.

32. A report by a psychologist, Dr [C], dated 29 July 2010. The report states that the applicant’s family members have suffered from high levels of emotional distress due to the applicant’s brain damage and his restricted life style. The report also states that ‘no formal diagnosis of the applicant’s condition has been obtained to date’, however ‘the applicant’s presentation is consistent with a diagnosis of mild brain impairment’. The report concludes that the applicant is able to achieve a limited form of independence and maintain a job.

    Submission to the Tribunal

33. On 4 December 2019 the following additional medical evidence was provided:

34. A report by Dr [A], [Specialist] to the Department dated 27 June 2014.  Dr [A] repeats his earlier observations and conclusions outlined in his report of 27 November 2013.

35. A certificate of medical diagnosis dated 22 October 2002, signed by Dr [D], [Occupation 1], Department of [Specified], [College 1], [Location 1], Seoul, Korea.  The diagnosis which is recorded is mental retardation, moderate level.

36. In a submission made on the applicant’s behalf by his representative which is dated 4 December 2019 it is claimed that the applicant is owed complementary protection because he has been diagnosed as being Autistic and for that reason he is at a significant risk of harm should he be required to return to Korea.  It is not disputed that the government is seeking to address the special needs of disabled persons in South Korea however it is submitted that for a variety of social and cultural reasons there does appear to be stigma attached to individuals who have been diagnosed as having autism.  It is not asserted that there are no laws to protect an autistic person but that in the current case with the applicant having no extended familial support in Korea he will be exposed to a significant risk of harm.  Reference is made to an extract of an article published online on 7 May 2019 which refers to the announcement of a Comprehensive Plan for Lifelong Care for People with Developmental Disabilities.  It is submitted that the formulation of a comprehensive plan for lifelong care is overall suggestive of a public policy initiative which seeks to redress the shortfall of available public resources and assistance for persons with a disability.  That initiative, particularly with regard to autism constitutes a recognition that persons with a diagnosis of autism are likely to face significant challenges with respect to the gaining of assistance and support in Korean society.  In summary, it is asserted that what the applicant faces in South Korea is a significant risk of harm of such gravity and intensity so as to constitute a breach of his fundamental human rights.  It can comfortably be found that the applicant by reason of his age, language ability, diagnosis of autism and his limited ability to function independently without extended family support would be likely to face a significant risk of harm should he be obliged to return to South Korea.

    Tribunal Hearing

37. The applicant appeared before the Tribunal on 10 December 2019 and his parents and representative gave evidence on his behalf as it was claimed his ability to verbally engage with the Tribunal is limited due to his mental disability.

38. The applicant’s father informed the Tribunal about the family’s migration history in Australia.  He said that his [other child] is an Australian citizen and that he and his wife are now residing permanently in Australia after being granted [permanent] visas.  He said their efforts to obtain a [temporary] visa for the applicant failed due to his mental health condition.  The applicant’s father said they sold the family home in Seoul.  Their remaining family in South Korea consists of his four brothers whom are all elderly.  He said that while there is no barrier to him and his wife returning to South Korea they do not wish to because his [other child] and his business is based here and they are concerned about the political situation which appears to be moving in a “communist” direction.  He said they are also afraid that a nuclear war involving South Korea is imminent.   His wife indicated that they are used to living in Australia now and a return to South Korea after a long absence might be difficult. 

39. The applicant’s father stated that they had previously left the applicant in the care of one of his brothers in South Korea but the arrangement did not work out.  He said the applicant was constantly upset about the separation, as were they, and his brother did not care for him adequately.  He added that the compensation arrangements for the applicant’s care also became a point of dispute.

40. The applicant’s father confirmed that the applicant completed formal schooling in South Korea until the age of [specified].  Thereafter they engaged a private tutor for their son.  He confirmed the applicant can speak, read and write Korean.  The applicant’s father said that despite what the medical reports indicate they are sure that the applicant is autistic.  Nevertheless he said that the applicant’s ability is improving and his wife added that the applicant is helpful in many situations around the home and plays the [instrument] well.

41. The applicant’s father stated that when the applicant is apart from them his behaviour alters and his communication becomes stilted.  He said that South Korean society is increasingly individualist and they are afraid that the applicant will be exposed to bullying and stigmatisation if he is returned to South Korea.    The applicant’s father stated that the applicant has encountered physical bullying on occasions in the past on account of his mental disability.  He said that in the past they considered placing him in a dedicated health facility but they heard of instances of people being mistreated and provided with inadequate health care.

42. Noting the submissions outlined above, the Tribunal asked for clarification during the hearing as to why or how the applicant’s age and language ability would compound his problems in South Korea.  The applicant’s father did not specifically address the question, instead he noted that his son’s condition has actually shown improvement over the years.

1. The applicant’s representative submitted that the applicant is now [a certain age] and the only immediate family members who can support him are residing permanently in Australia.  She said that the applicant’s uncle who formerly cared for him is old now and his grandmother, who was a great carer in the past, is now deceased.  She submitted that it will be extremely difficult for the applicant to return to South Korea and as a person with a mental disability he cannot expect to be treated by others in the same manner as he is treated by his parents.

   Post hearing submission

2. In a post-hearing submission dated 19 December 2019 it is acknowledged that in the previous submission the applicant was incorrectly characterised as being Autistic.  It is accepted that he has a “mild intellectual delay”.  It is submitted that if he is obliged to return to South Korea without the requisite family support he has in Australia he is likely to be vulnerable to circumstances where persons with intellectual disability face discrimination and a lack of meaningful support.  His physical presentation and aspects of his behaviour are likely to mark him as being “different”.  The level of care and support he has enjoyed so far by reason of his family cannot be approximated by the state regardless that the government may be doing its best to address discrimination and the lack of services.

   FINDINGS AND REASONS

   Country of reference

3. When the applicant appeared before the Tribunal he produced a Republic of Korea passport which confirms his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts the applicant is a national of South Korea and has assessed his claims against South Korea.

4. While the applicant’s parents maintain he is autistic the Tribunal is not satisfied that this claim is supported by the medical evidence before it.  None of the above mentioned medical reports confirm a diagnosis of autism although the Tribunal accepts that he has a mild intellectual disability.  Further, while it is claimed the applicant does not have the ability to live apart from his parents, the Tribunal considers that the available medical evidence presents a different picture to this as they indicate that the applicant is capable of some form of independent living and that he has the capacity to engage in some form of employment.  The applicant’s father indicated he would be willing to seek further medical opinion but the Tribunal declined the offer noting that several medical reports from different doctors spanning a number of years have provided a consistent opinion about the applicant’s diagnosis and functional abilities.

5. The Tribunal accepts that the applicant’s immediate family members are all resident in Australia and that he does not wish to return and live in South Korea without the support of his family.  The Tribunal accepts he is apprehensive about returning to South Korea where it is claimed his intellectual disability will result in him being bullied and stigmatised by members of the community.

   Is there a real chance that the applicant will suffer serious harm if he returns to South Korea?

6. During the hearing, the Tribunal asked for clarification of the applicant’s fears of returning to South Korea.  By way of response his father recounted some isolated incidences of physical bullying encountered by the applicant in South Korea on account of his intellectual disability which the Tribunal is prepared to accept.  When referring to these matters the applicant’s father stated that they did not seek legal redress for these actions but instead chose to forgive the perpetrators.

7. During the hearing the Tribunal put it to the applicant’s family that country information indicates that the government of South Korea has put in place adequate protections for people with physical and mental disabilities.  For instance:

8. The US State Department Country Report on Human Rights Practices 2018 for South Korea[1] states the following:

   The law prohibits discrimination against persons with physical, sensory, intellectual, or mental disabilities and sets penalties for deliberate discrimination of up to three years in prison and a fine of 30 million won ($26,800).  The law covering rights and support for persons with developmental disabilities created a special task force of prosecutors and police trained to work with persons with disabilities and their families in police investigations. 

   The Ministry of Health and Welfare continued to implement a comprehensive set of policies that included encouraging provision of greater access for persons with disabilities to public and private buildings and facilities; part-time employment opportunities for persons with disabilities; and introduction of a long-term care system.

   The government continued to provide a pension system for registered adults and children with disabilities, an allowance for children with disabilities younger than age 18 in households with an income below or near the National Basic Livelihood Security Standard, and a disability allowance for low-income persons age 18 and older with mild disabilities.

   The report also notes reported incidents of discrimination against persons with disabilities between January 1, 2017 and June 30, 2018 and media and NGO reports of ongoing discriminatory practices.

   [1] US Statement Department, Country Report on Human Rights Practices 2018

9. Indeed, an article[2] referenced in the applicant’s submissions notes an announcement by President Jae-In Moon in 2018 of a Comprehensive Plan for Lifelong Care for People with Development Disabilities.  The article notes the goals of this plan are to provide health, medical, rehabilitative, special education, and social welfare services according to the life-stages of the affected individuals; to reduce parental pressure; to promote social interventions; and to enhance community-level participation in order to create a ‘welfare society in harmony’.

   [2] ‘What else is needed in the Korean Government’s Master Plan for People with Developmental Disabities’, JPrev Med Public Health, May 2019

10. The Tribunal acknowledges the submissions made on the applicant’s behalf and accepts, based on news reports[3], that a certain amount of stigma might still be attached to individuals with intellectual disabilities in South Korea.  The Tribunal accepts that the applicant himself might have experienced some physical bullying in the past for this reason. The Tribunal also acknowledges the continuance of disability discrimination claims in South Korea.  However as the above reports indicate the South Korean government has enacted legislation and has recently taken steps to update policy to specifically deal with discrimination and to improve the care of persons with intellectual disabilities.   While his family may not have sought legal redress in the past for the harm suffered by the applicant in light of the above information the Tribunal is satisfied that effective protection measures are available to him in the event his return to South Korea results in him encountering discriminatory treatment on account of his disability.  On the limited available evidence the Tribunal is not satisfied that the applicant’s age and language abilities in anyway alter this finding.

    [3] ‘Stressed and depressed, Koreans Avoid Therapy’ New York Times, 28 June 2012; ‘South Koreans Use Suicide to Preserve Honour’, Psychology Today, 24/12/15

11. Throughout the proceedings it has been submitted that the chance of the applicant being harmed because of his disability is heightened because he has no close family support in South Korea.  The Tribunal accepts that his parents previously tried to make arrangements for him with an uncle and that the arrangement proved to be unsatisfactory.  The Tribunal also accepts that the applicant’s uncles in South Korea are now elderly and therefore not well placed to provide him with support.  However, the available evidence, including evidence given to various medical professionals and the oral evidence to the Tribunal, is that the applicant is much loved by his parents to the point that it has been suggested his development has been held back due to their protectiveness.  The Tribunal is satisfied that his parents will not return the applicant to South Korea alone without adequate care arrangements in place for him.  Indeed, the Tribunal notes that there are no barriers to his parents returning to live in South Korea other than a personal desire not to.

12. Having carefully considered the claims and all the available evidence, the Tribunal is not satisfied that the applicant is at risk of serious harm for reason of his intellectual disability and/or a combination of reasons including his diagnosis, age, language abilities and proximity to family support, if he returns to South Korea now or in the reasonably foreseeable future.

    Claimed drift toward communism; threat of nuclear war and inability to resettle in South Korea after an extended absence

13. Turning to the suggestion made by the applicant’s father during the hearing that South Korea is drifting toward being a communist state and at threat of involvement in a nuclear war, the Tribunal firstly notes the speculative nature of these claims.  In any event, as discussed with the applicant’s father at hearing any harm which might come to the applicant upon the realisation of either scenario will be harm which is faced by the population in general and not the result of any systematic or discriminatory treatment aimed at the applicant personally. 

14. As to the inability to resettle in South Korea after an extended absence, the Tribunal notes the applicant lived until adulthood in South Korea and speaks the Korean language even if not to the capacity of persons without an intellectual disability and who have lived in South Korea their entire lives.   While the Tribunal accepts the applicant does not wish to return to South Korea in the circumstances it is not satisfied that his period of stay in Australia means he is so culturally out of tune with Korean ways and culture that he will be unable to adapt to life in South Korea if he returns home.  In forming this view the Tribunal notes the available evidence, including the medical reports provided in submissions, indicates that the applicant has lived with his Korean family and been largely shielded from alternative influences for the duration of his absence from South Korea. 

15. The Tribunal finds the applicant is not at risk of any serious harm if he returns to South Korea now or in the reasonably foreseeable future for any of these reasons.

16. 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) of the Act.

17. Having concluded that the applicant does not meet the criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Korea there is a real risk that he will suffer significant harm.  Therefore the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

18. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION

19. It has been submitted that the applicant’s circumstances warrant the Minister’s intervention to enable the applicant to remain in Australia. 

20. The Tribunal notes that the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.  The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:

    -    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

21. The Tribunal accepts that the applicant has an intellectual disability and notes that all his immediate family members are now residing permanently in Australia.  Indeed his brother is an Australian citizen and his parents are Australian permanent residents.  The Tribunal accepts the applicant enjoys a very close and supportive relationship with his parents and his brother and that despite his reasonably good functional abilities his family members are best placed to support him.  The Tribunal accepts his parents are extremely concerned about his wellbeing and wish to continue to be in a position to assist him in the best way they know how without causing any hardship, through family separation,  to their Australian citizen son.

22. For these reasons, the Tribunal considers that there are strong compassionate circumstances in this case which warrant that it recommends to the Department that it conducts an assessment of their circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.

    DECISION

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

    Tania Flood
    Member