1614101 (Refugee)
[2019] AATA 6103
•16 July 2019
1614101 (Refugee) [2019] AATA 6103 (16 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1614101
COUNTRY OF REFERENCE: Romania
MEMBER:Susan Hoffman
DATE:16 July 2019
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 July 2019 at 1:18pm
CATCHWORDS
REFUGEE – protection visa – Romania – political opinion – membership and activity in political party – participation in anti-government protests – right to enter and reside in other countries in Europe – delay in applying for protection – credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
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
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).
The applicant, who claims to be a citizen of Romania, applied for the visa on 9 May 2014 and the delegate refused to grant the visa on 8 August 2016.
The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The applicant was not represented. The hearing was conducted in English.
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’).
Section 36(3) sets out that 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, any country apart from Australia, including countries of which the non-citizen is a national.
S.36(3) does not apply if the person has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in that other country or if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of the right to enter and reside in that other country, there would be a real risk that the non‑citizen will suffer significant harm in relation to the country (s.36(4)).
10. S.36(3) also does not apply if the person has a well‑founded fear that a country will return the person to another country where they would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion or be returned to another country where there is a real risk or a real chance they might suffer serious or significant harm (s.36(5) and (5A)).
11. 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.
12. The issue in this case is whether or not the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, protection claims, and the delegate’s decision
13. The applicant claims to be a citizen of Romania, born on [date], in the town of [Town] in the province of Hunedoara. The delegate recorded that the applicant provided a range of documents including his passport to support his claims as to his identity, and without evidence to suggest otherwise, the delegate was satisfied as to the applicant’s identity. As the Tribunal has no evidence before it suggesting otherwise, it also accepts that the applicant is who he claims to be.
14. Romania is a member of the European Union (EU). There are currently 27 member countries including Romania and excluding the United Kingdom. Romania is also a member of the European Economic Area (EEA) which includes Iceland, Liechtenstein, and Norway in addition to the member states of the EU.
15. The delegate found that the applicant had the right to enter and reside in any of the EU member states plus Iceland, Lichtenstein, Norway and Switzerland and had not taken all possible steps to avail himself of that right.
16. The delegate observed that the applicant had not made any protection claims in relation to other EU countries (aside from Romania) and it was open to him to enter and reside in any EU member state. The delegate was also satisfied that EU countries would not return the applicant to a country where there was a real risk or a real chance of him suffering serious or significant harm. The delegate found that s. 36(3) applies to the applicant; that is, that Australia does not have protection obligations towards the applicant as he has the right to enter and reside in another country and he has not taken any steps to avail himself of that right.
17. The applicant’s visa history with regards to Australia includes the following:
· He arrived in Australia [in] September 2010 on a [temporary] visa that expired [in] November 2010.
· [In] November 2010 he was granted another [temporary] visa that expired on 5 September 2011.
· [In] August 2011 he applied for a [residence visa] on the basis of being the dependent child of their sponsor. This was refused [in] September 2011. He asked for a review of this decision and on 28 November 2012 the Migration Review Tribunal (MRT) affirmed the decision. The applicant did not attend the MRT hearing. The applicant sought judicial review which was unsuccessful. He was notified of this on 23 July 2013.
· On 7 August 2013 the applicant applied for Ministerial Intervention which was refused on 1 May 2014.
· On 9 May 2014 the applicant lodged his application for a protection visa. He was interviewed in relation to this application on 27 January 2016.
· On 11 December 2014 the applicant applied for a spouse visa which was refused by a delegate on 13 February 2015. On 17 February 2015 the applicant lodged an application for review of the spouse visa decision with the MRT. On 23 February 2016 the MRT dismissed the application. The applicant did not attend the MRT hearing.
· While his applications were being processed he was issued with bridging visas, sometimes with no work rights. He requested waiver of the No Work condition on 8 June 2012 and 17 January 2013. These requests were unsuccessful.
18. In his application for a protection visa, the applicant claimed he left Romania for political reasons, due to the corruption as he is a human activist and believes in human rights. In response to a question on the application form as to whether he had experienced harm in Romania, he wrote “various demonstrations during university and social protests”.
19. In response to a question as to what he feared may happen if he went back to Romania, the applicant wrote “because I was an active activist I am wanted by the government and the Mafia.”
20. In response to a question as to why he thought he would be harmed if he returned, the applicant wrote “because they have done it to many class mates and anyone who has the same belief”.
21. In answer to a question about whether the authorities in Romania could and would protect him if he went back, the applicant wrote “too much corruption and Mafia is too strong for anyone to prevail and overcome”.
22. The applicant claimed that while in Romania, he completed a [Subject 1 Qualification] in June 2008 and a [Qualification] in [Subject 2] in June 2010. That is, he obtained his [second qualification] in June 2010 and came to Australia [in] September 2010.
23. The delegate’s written decision recorded the following claims made by the applicant:
· He participated in a demonstration in May 2010 against the government decision to cut salaries and subsidies at the time of a financial crisis in Romania
· At that time he was a student, with his friends he joined tens of thousands of people at the demonstration.
· He indicated that the demonstration was peaceful without any adverse engagement with police or disturbances involving other people, property or vehicles.
· While the police did nothing during the demonstration, they came to the university campus and questioned students. They intimidated by threatening that people would not be able to work as teachers in government schools in the future.
· He was not detained. He heard that someone from his group was jailed in 2010 and because of that he was afraid to return to Romania.
· He was not on a wanted list in Romania as a criminal.
· In his relation to his reference to the Mafia in his application form, he said he did not mean a criminal organisation or individuals but meant that in Romania, people in power like the Mafia have all the money.
· He has not been involved in any Romanian political group or movement while he has been in Australia.
· He belonged to a political party when he was in Romania. He did not know the current name of the party but believed it was called something like National Liberals. It was not an opposition party and was not prohibited in Romania.
· He departed Romania lawfully on his own passport in 2010 and in June 2015, he renewed his passport with the Romanian authorities.
24. The delegate recorded that the applicant exhibited no knowledge of the party’s structure, leadership, policies and whether it was in parliament at the time.
25. The delegate wrote that when the applicant was asked why he waited for four years before applying for a protection visa (he arrived in Australia in September 2010 and lodged his protection claim in May 2014), the applicant provided different explanations and that he said he did not know anything about immigration processes, or about a protection visa and he also blamed his migration agent.
26. The delegate recorded that it was put to the applicant that he has had a substantive interaction with the Department since 2010 when he first applied for a range of visas and never mentioned any fears of harm in Romania.
27. The delegate recorded that he had also put to the applicant that he had a [Qualification] in [Subject 2], that he was a [Occupation] and that he lodged his protection application after researching it on the internet.
28. The delegate was of the view it was difficult to believe that the applicant did not know anything about immigration processes or protection visas in Australia until 2014. The delegate also noted that when the applicant requested Ministerial Intervention, he listed several reasons for him to remain in Australia but did not include his political opinion as one of them. When that was put to him, according to the delegate he responded “I just waited for the outcome of the other visas.”
29. In relation to having the right to enter and reside in other EU countries, according to the decision record the delegate asked the applicant if he had ever tried to avail himself of that right, and the applicant responded in the negative. When asked to explain why he had not, he responded that there were some work restrictions at the time.
30. The delegate found that the applicant does have statutory effective protection in a third country (s.36(3)). Having made that finding, the delegate did not make any findings with regards to the claims made by the applicant as to whether there was a real risk or real chance he would face serious or significant harm if he was to return to Romania.
Findings and reasons
31. In determining whether or the applicant meets the criteria for grant of a protection visa, the Tribunal has considered the evidence before it including the sworn evidence of the applicant. It has considered the credibility of the applicant. The Tribunal acknowledges that an applicant can find it difficult to give evidence in a formal hearing and recall details of events from a number of years ago.
32. Generally if the overall claims made by applicants are credible, the Tribunal takes the view that it is appropriate to extend the benefit of the doubt to any claims they cannot substantiate. On the other hand the Tribunal recognises that there is the possibility applicants might embellish aspects of their claim to strengthen their case and that it is appropriate to critically evaluate claims made by applicants.
33. As English is not the applicant’s first language and there was no interpreter present, the Tribunal checked with the applicant that he understood the Tribunal. He confirmed he did. There was nothing during the hearing that suggested otherwise.
34. When the applicant lodged his application for review with the Tribunal in September 2016, he handed in a copy of the delegate’s decision. At the time of the hearing, May 2019, he was unsure if he still had a copy of it. The Tribunal arranged for a copy to be emailed to him after the hearing. The Tribunal also deferred making its decision by one month to allow the applicant time to make further submissions, such as relevant country information, and to seek advice from a migration agent if that was what he chose to do. The Tribunal informed the applicant that country information not in English would need to be translated by an accredited translator.
35. The hearing was held on 7 May 2019. As at 15 July 2019, the applicant had not made any post-hearing submissions.
36. The Tribunal notes the number and type of visas for which the applicant applied and that he did not lodge his protection claim until he had been in Australia for 3½ years. Before lodging his protection visa claim on 9 May 2014, the applicant lodged applications for another [temporary] visa, a [Residence] visa and a request for Ministerial Intervention.
37. After lodging his protection visa claim, on 11 December 2014 the applicant applied for a spouse visa. This was refused by a delegate on 13 February 2015. As already recorded, on 17 February 2015 the applicant lodged an application for review of the spouse visa decision with the MRT. On 23 February 2016 the MRT dismissed the application as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing.
38. The Tribunal notes in regard to the other MRT hearing (decision made 28 November 2012 in respect of an application for a [residence] visa), the applicant was invited to attend the hearing but did not do so.
39. When asked why he did not apply for a protection visa sooner than he did, the applicant said that he knew he had the option to extend his [temporary] visa so did that first. He said he was advised by another Romanian to use a particular migration agent and she advised him not to apply for a protection visa which was why he applied for a child visa. The applicant said he had told the migration agent about his situation.
40. The applicant says he now knows it was a big mistake to apply for that visa but he just took her advice. He explained that although he had taken a [Qualification] in [Subject] it was to do with [specialisation]. His [qualification] prepared him for a career as [a specialist] rather than, say, [doing a job task]. His studies did not help him with understanding the Australian migration system. The Tribunal accepts that his studies in Romania would not necessarily assist him with dealing with Australia’s migration system.
41. The applicant said his migration agent, Ms [A], has since died. He also said someone he spoke to at the Department asked him if he knew that she had lost her license to practise as a migration agent for a period of time in the past. The Tribunal will make allowance for the fact that the applicant may have been given poor advice and will not draw adverse conclusions as to his credibility because of the visas for which he has applied.
42. As to whether the applicant has a right to enter and reside in another country, the Tribunal observes the following.
43. The EU website states that a person from one EU country has the right to live in any other EU country if they work there.[1] As an EU national, a person has the right to go and look for work in another EU country. As a jobseeker, a person is not required to register as a resident for the first six months, although some EU countries require a person to report their presence to the relevant authorities within a reasonable period of time after arrival which could be at the town hall or local police station.[2]
[1] European Union (n.d.) Workers - residence rights, accessed 30 April 2019 at European Union (n.d) Jobseekers - residence rights, accessed 30 April 2019 The delegate in their decision referred to the EU member states plus Iceland, Liechtenstein, Norway and Switzerland as members of the EEA.
45. According to the European Free Trade Association (EFTA):
The free movement of persons is one of the core rights guaranteed in the European Economic Area (EEA), the extended Internal Market which unites all the EU Member States and three EEA EFTA States – Iceland, Liechtenstein and Norway. It is perhaps the most important right for individuals, as it gives citizens of the 31 EEA countries the opportunity to live, work, establish business and study in any of these countries.
The legislation on the free movement of persons aims at eliminating all obstacles to the freedom of movement, and to give the same rights to nationals of an EEA State and their family members within the EEA by eliminating any discrimination on the basis of nationality.
46. Although the delegate mentioned Switzerland, the Tribunal notes Switzerland is not a member of the EU or EEA and therefore the Tribunal is not satisfied that an EU national would have the same right to enter and reside in Switzerland as they would the other countries (that is, EU member states plus Iceland, Liechtenstein and Norway).
47. The Tribunal put it to the applicant that as Romania was a member country of EU, it appears that he has the right to enter and reside elsewhere in Europe, in which case Australia would not have protection obligations to him. The applicant said that he has not lived in, resided in or visited any other countries in Europe apart from Romania. He said that in terms of security if he was in another European country, it would be easier for them to arrest them. However the applicant did not give any evidence that would explain why security forces in another European country would have a reason to arrest him. The Tribunal finds that the applicant does have the right to enter and reside in the EU countries plus Iceland, Liechtenstein and Norway and does not find it credible on the evidence before it that security agencies in these other countries have any adverse interest in the applicant.
48. In response to being asked why he feared returning to Romania, the applicant said that Romania was a corrupt country, and that even last year there have been protests in the country against the government and a person can find on the internet and YouTube that people have been beaten up by police.
49. The applicant claimed that more people have left Romania compared with other countries, apart from Syria even though there is no civil war in Romania. The Tribunal located a media report which confirmed this (in percentage terms rather than numbers of people) as follows:[3]
As many as 3.4 million Romanians have fled the country since it joined the European Union in 2007. The figure represents 17 per cent of the country’s total population. The exodus is unprecedented anywhere in Europe during peacetime. Over the same period, only war-torn Syria has seen a higher percentage of its citizens emigrate.
[3] Turp, C. (2018) New Statistics Confirm Romania’s Demographic Catastrophe, Emerging Europe, accessed 7 May 2019 at
50. The article went on to say:
“It would be difficult to think of a more pressing priority for Romania than keeping, and perhaps even bringing back, its most productive people,” commented Claudiu Nasui, an MP for the opposition Save Romania Union (USR). “For people to want to return to Romania they need to see that there is political and economic stability. They need to see that there is a functioning justice system which delivers verdicts in good time, and which punishes corruption. They need to be free of bureaucratic obstacles that do nothing to encourage economic initiative.”
“What we see now is the opposite,” he continued. “We see more and more qualified people quite rightly losing patience with Romania. Some are fearful of what will happen next. Many have left, and many more will continue to leave as long as things do not change.”
51. The applicant said he feared return to Romania because he participated in demonstrations as a student. He claimed that lots of friends and colleagues were arrested and false accusations were made against them.
52. There are numerous reliable reports of protests in the Romanian capital of Bucharest in June 2010, and elsewhere in Romania during 2010. According to one report from CNN a particular demonstration was attended by about 5,000 people. Police told reporters that the crowd burned effigies of government ministers and a crew of firemen had to put out the fire.[4]
[4] CNN (2010) Thousands protest Romanian austerity measures, accessed The Tribunal is satisfied that the applicant attended protests and demonstrations as he claimed, and that he was a human rights activist.
54. When asked if he knew what had happened to his friends and colleagues, the applicant said that after ten years he was no longer in contact with them and he does not know their situation know. He said that when applied for protection, all his friends who were part of the same group in university were arrested and had problems finishing their degrees. The Tribunal notes that the applicant was able to complete his degree and graduated before he left Romania.
55. When asked if he had been in touch with people soon after he left Romania, he said he was in touch with people who were not in jail and he heard only about them.
56. The Tribunal asked the applicant if anything specific happened to him. He said that he attended university in Cluj (also known as Cluj-Napoca) and that this was the second largest city in Romania. His home town is [Town]. He said that the police visited his mother several times to intimidate her. They made comments such as she would end up in jail or she would lose her pension. The applicant advised that she is currently okay and is in receipt of a pension.
57. The applicant said that after he left Romania they kept this up – visiting his mother and intimidating her – for two and three years and then it stopped. He presumed it stopped because he was not in the country anymore.
58. When first asked if the police issued an arrest warrant for him, the applicant said that he thought so and that the only reason he was not arrested, was that he was running as fast as he could.
59. The applicant said he participated in demonstrations when he was still a student from about 2008 to 2010 and continued to do so after he was no longer a student. He participated in demonstrations in Cluj and Bucharest. He said he became more politically active between 2008 and 2010.
60. The applicant said that it was not only the street protests but also that he was part of a group of students who tried to talk to other students about their political beliefs, and that he belonged to the Liberal Party. His evidence was that the group of students was just a group of like-minded people; they did not operate under a group name.
61. The applicant claimed he had a number of interactions with the police. He said they would come onto the campus and try to talk to people; try to intimidate them by saying things like “What is wrong with you?” or accusing you of doing something or other.
62. The applicant claimed he experienced this intimidation every two months or so in the last three years he was in Romania and had become more involved in politics. He confirmed that he continued with his studies and his political activities despite this.
63. He said he applied for a visa to come to Australia as he knew it was a safe country and was accepting of refugees from Romania.
64. The applicant claimed the intimidation he experienced when in Romania escalated; earlier incidences were of lesser intensity. When there were street protests, the police would hit a person straightaway and take them into police custody.
65. It was unclear at times whether the applicant was speaking about what happened to people in general or was speaking about his personal experiences. The Tribunal asked him to give examples of what he personally had experienced.
66. The applicant said that he was beaten, taken by the police and held overnight, and that this happened in May or June 2010 before he graduated.
67. The applicant said that he attended a protest in Clu with hundreds of others which continued on into the night. The protestors were peaceful, just marching. The organisers had obtained authorisation for the march ahead of time. He was not one of the organisers. When night came, the police started to use force – tear gas, water cannon -and were hitting people with batons, mainly targeting the young men rather than women or older people. He said that people were arrested but not him as he was running away. However friends of his were arrested and they gave his name to the police. The police went to his mother’s home to try and find him but he went to live somewhere else. He was not arrested that night.
68. The applicant said that the occasion he was arrested was to do with a street demonstration in Cluj held outside a government building. There were between 20 and 50 students demonstrating in front of the building when the police came and arrested about 20 of them, which was easy for the police to do because it was not a big demonstration. The demonstrating students were holding placards and shouting anti-government messages.
69. They were put into police vehicles and taken to the police station where the police tried to intimidate the demonstrators and accused them of things like foreign forces being behind the party, that someone was financing them and that they had betrayed their country.
70. The applicant said that the police spoke to the demonstrators individually. There were maybe three to four police officers present and others in suits, perhaps security forces. He said they accused him of working for foreign countries and told him they had a file on him.
71. The applicant claimed he was held overnight and was not permitted to contact family to tell them where he was, and was given no food although there was water. He was in a cell by himself. He claimed he was told that he would be put behind bars for ten years. He was released the next day.
72. When asked if he was physically harmed, the applicant said he was not physically injured although he was pushed about, and pushed against a wall. He said one of the police officers had a baton and was banging it on the table to intimidate him but he did not hit the applicant.
73. The applicant said the others detained at the same time as him were treated in the same way, although he heard that some had been beaten. All were held overnight.
74. When asked if that was the most extreme thing that had happened to him, the applicant said yes. He said that he had been in street demonstrations when police were hitting people at random and he was hit. He was not arrested on those occasions and the only injuries he sustained were bruises.
75. The applicant said that it was that incident that caused him to think about leaving the country as other friends were arrested and imprisoned.
76. The Tribunal put it to the applicant that, as recorded in the delegate’s decision, he said he had participated in a demonstration against the government when he was a student, along with thousands of others; that the demonstration was peaceful, and although the police did nothing during the demonstration, they came to the university campus and questioned students. He was not detained.
77. The Tribunal put it to the applicant that he had just made claims at the Tribunal’s hearing which he had not mentioned at the delegate’s interview.
78. The Tribunal asked the applicant what he recalled of the delegate’s interview. He could not recall much but thought that it lasted about an hour.
79. The Tribunal was not satisfied that the applicant was being honest in giving his evidence because he made claims during the hearing which he had not raised previously, as follows:
· The police visited his mother several times to intimidate her and this continued for two or three years after he left Romania.
· He was part of a group of students who were speaking to other students about politics.
· Every two months or so in the last three years he was in Romania and had become more involved in politics, the police spoke with him to intimidate him.
· He was beaten, taken by the police and held overnight, and that this happened in May or June 2010 before he graduated.
80. The Tribunal considers these to be significant incidents for a person claiming protection and while it is a possible a person may have forgotten to raise one of them, to have failed to raise all four when making a claim for protection (in the initial claim form and during the delegate’s interview) raises significant questions about a person’s credibility. It suggests that the applicant was embellishing his claims to strengthen his overall claim for protection. The Tribunal was not satisfied that the applicant was honest when giving his evidence and finds that he embellished and/or fabricated his claims to strengthen his case.
81. The Tribunal has accepted that the applicant attended demonstrations when he was in Romania. It also accepts that when he was living in Romania he was a human rights activist, that he belonged to a political party and was part of a group of students who spoke to other students about politics, and that he believes in human rights. It accepts that corruption remains a problem in Romania.[5]
[5] Chadwick, L. (2019) Romania has made ‘very little progress’ to prevent corruption – report accessed 16 July 2019 at
82. The Tribunal does not accept that the applicant was beaten by police, and that they took him and held him overnight. The Tribunal does not accept that the police spoke to him every two or months when he was in Romania and that became more involved in politics. It does not accept that the police visited his mother several times and tried to intimidate her.
83. The Tribunal asked the applicant why he believed he would be at risk of harm now given the passage of time. It is more than eight years since he left Romania.
84. The applicant said that although the Romanian prime minister has changed, the same party is in charge.
85. The applicant agreed he did not have a high profile (as, for example, an activist or political opponent) but he has seen on YouTube how protests in Bucharest have grown recently. He was making the point that the same corrupt system exists now as when he left Romania.
86. The Tribunal accepts that protests have been taking place in recent years in Romania and continue to occur as that is supported by country information. There are numerous media reports to that effect.
87. The applicant said that he was not claiming he was on a “most wanted” list but he knows that the authorities have a file on him. He said that other students were arrested and he was not as he ran away. He said that they went to see his mother, and they knew enough about him to know where he had been living. The Tribunal accepts that the police went to see his mother once or twice but, as recorded above, it does not accept that the police visited his mother several times and tried to intimidate her.
88. The Tribunal put it to the applicant that around the time he left Romania, in 2010, there were widespread demonstrations across Europe, because of austerity.[6] The applicant said that the Romanian government responded differently to those countries. The Tribunal put it to the applicant that it had been unable to locate country information that indicated a person who had participated in demonstrations in 2010 would be of interest to Romanian authorities now. The applicant said that nothing had changed in Romania as far as the political situation was concerned.
[6] Stan, C. (2010) Thousands protest Romanian austerity measures, CNN accessed 2 May 2019 at
89. The applicant said that he had no corroborating evidence that authorities were still interested in him, such as an arrest warrant. The Tribunal acknowledges the difficulty for, if not the impossibility of, the applicant obtaining the copy of an arrest warrant or other corroborating evidence of the authorities’ interest in him at this point in time. However the Tribunal has doubts as to the applicant’s credibility with reference to a number of his claims as already set out and it does not accept that Romanian authorities hold any interest in him now, nearly nine years after he left Romania. As he acknowledged, he was not someone with a significant profile.
90. The Tribunal also notes that the applicant was able to continue his studies and graduate. When he left Romania, he experienced no difficulty in doing so.
91. As recorded above, the Tribunal deferred making its decision to allow time for the applicant to locate any evidence such as country information relevant to his claims. He did not provide any.
92. The applicant said that he has not been politically active while in Australia and has no interest in being politically active now. On that basis the Tribunal finds that he would not participate in any political activities if he was to return to Romania, or otherwise express those views.
93. Even if he was to express a political opinion, the Tribunal was unable to locate any country information to indicate that expressing a political opinion in Romania was problematic or would attract adverse interest from authorities. The Tribunal notes that Romania’s prime minister announced on 9 July 2019 that presidential elections would be held in November 2019. The AFP reported that the current Romanian president, Klaus Iohannis, has been a vocal critic of the government.[7]
[7] Agent France Press (2019) Romania to hold presidential elections in November accessed 16 July 2019 at
94. The applicant confirmed that he left Romania without a problem. He said that when he tried to renew his passport in 2015, he was given a temporary passport that lasted for one year, and that was because he was in Australia on a bridging visa. The applicant also referred to making an appointment with the consulate in Sydney, and that the consulate needed more documents or information from him but he did not have the time to provide these as he needed to return to Perth.
95. The Tribunal does not accept that Romanian authorities or anyone else in Romania is interested in the applicant now because of his political activities and participation in demonstrations in 2010. It does not accept that he would be at risk of arrest or physical harm if he was to return, or that if he went to another European country, that he would be at risk of arrest or physical harm because of what occurred in Romania in 2010.
96. The Tribunal finds that the applicant does not have a well-founded of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in his home country. The Tribunal finds there are no grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country.
97. Further the Tribunal has already found that the applicant has the right to enter and reside in other EU and EEA countries, specifically Iceland, Liechtenstein, and Norway, and has not taken any steps to avail himself of that right.
98. The Tribunal has perused country information pertaining to each of Iceland, Liechtenstein and Norway, and is satisfied that the exceptions set out in s.36(4), 36(5) and 36(5A) do not apply in this case and Australia has no protection obligations towards the applicant.[8]
CONCLUDING PARAGRAPHS
99. 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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Susan Hoffman
Member
Iceland -
Liechtenstein -
Norway -
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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