1616527 (Refugee)

1616527 (Refugee) [2019] AATA 5530 (7 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616527
COUNTRY OF REFERENCE:                   Italy
MEMBER:Nora Lamont
DATE:7 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 August 2019 at 1:29pm
CATCHWORDS
REFUGEE – protection visa – Italy – particular social group – women with familial links to organised crime – father’s mafia connections – responsibility for debts incurred by father – claimed harm from associates – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Italy, applied for the visa on 13 March 2015. The delegate refused to grant the visas on 26 September 2016.
The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
The applicant was represented in relation to her review and her representative attended the hearing. The Tribunal took evidence from the applicant’s mother in Italy via the telephone.
CRITERIA FOR A PROTECTION VISA
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant travelled to Australia on a valid Italian passport and states that she is a national of Italy. The delegate had no concerns about the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against Italy as her country of nationality and her receiving country.
The applicant’s migration history is as follows: [1]
[1] [source deleted] page 229
·[In] September 2011 Arrived in Australia on a Working Holiday Visa.
·[In] March 2012 Departed Australia.
·[In] April 2012 Arrived back in Australia
·[In] July 2012 Departed Australia
·[In] July 2012 arrived back in Australia on Working Holiday visa
·[In] July 2012 Departed Australia
·[In] September 2012 Arrived back in Australia on Working Holiday Visa
·[In] March 2013 Departed Australia
·[In] March 2013 arrived back in Australia on Working Holiday Visa
·[In] September 2013 Lodged an application for a 572 Student Visa
·[In] September 2013 Working Holiday Visa ceased
·[In] March 2015 Subclass 572 Visa granted
·[In] March 2015 lodged an application for a Protection Visa.
The applicant’s written claims as summarised accurately by the Department are as follows: [2]
[2] [source deleted] page 230
·She decided to travel to Australia on a working visa in 2010, at the age of [age], when everything in her family was falling apart.
·Her father had opened [Business 1] under her name when she was [age] years old in order to obtain funds from the bank.
·Her problems began when she was born. Her father was part of the Sicilian mafia, [Clan 1], when he met her mother who didn’t know of his past.
·After she was born they spent one year as a family before he went to jail for [Crime 1] and [Crime 2].
·Her mum became a single mother and they continued to visit her father in prison.,
·When she was about [age] years old her father was allowed out of prison for a short time to be with his family but he took the opportunity to abscond. When captured, he was given a longer sentence. He was not released until she was [age] years old.
·Her father came back to the home, but her parents fought all the time and he treated her like a child. He also beat her mother and was a violent man.
·One time he threw a phone so hard on the ground that it smashed into pieces and also he threw a chair at her and assaulted her.
·When she turned [age] (in [year]) her father asked her to sign her name as the owner of his new [Business 1] and become the owner of their house. She refused because she couldn’t trust him but eventually she was pressured into it by all her family.
·Her father later disappeared and she found out that he had never paid any taxes and had many creditors, which meant that she was responsible for all his debts, including the mortgage repayments.
·They closed the business and tried to explain what had happened with no effect. The creditors began a legal case against her.
·She began studying at University but had to drop out because of lack of funds.
·One day at [University 1] she bumped into her father, who had been waiting for her. She was terrified and after this decided to travel to Australia.
·She has since lost contact with her father but knows that he could easily find her in Italy.
·Her mother is currently safe because she has taken out an intervention order against her father and has changed her house and job.
·A couple of years ago she received a call from her father who was angry and upset with her for trying to cut him out of her life. She told him she never wanted to see him again.
·If she returns to Italy she won’t even be able to open a bank account without her creditors demanding repayment. She would be forced to work illegally and have to share a house with her mother and new partner.
·The only way she can be free in Italy is to pay her father’s debts.
·She cannot afford to relocate. She would have to pay [amount] Euro’s without a bank account and a full time job.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons as set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Italy, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Tribunal Hearing
The applicant said that her father was in [Clan 1] of the Sicilian mafias and he went to jail for [Crime 2] and [Crime 1] when she was [age] year old. She used to visit him in prison when she was growing up. When she was [age] years old her father was let out for a period of time but he absconded and was sent back to prison when he was caught. He was finally released when she was [age] years old.
The applicant said when her father was out of prison he fought with her mother and he was angry. He once smashed her phone on the floor and threw a chair at her.
The applicant spoke about her father who was in the mafia and in and out of prison during her childhood. The applicant told the Tribunal that when she was [age] years old her father opened [Business 1] and used her name to secure bank loans. She had at first refused his requests to use her name but relented due to pressure from the family. Eventually her father disappeared again and she found out that he had never paid any taxes and he had many creditors which now meant that she was responsible for all his debts, including the mortgage on the house.
The applicant soon found that she had legal troubles with all the creditors after her for her fathers failed business. She began studying at [University 1] but soon she had to drop out as she had no funds to continue. One day she saw her father waiting for her at the University and she was frightened and it was then that she decided to come to Australia.
Her father rang her on the phone a few years ago and was angry that she didn’t want to see him. She told him she never wanted to see him again. She has not had contact since that time.
Her mother has a new partner and has moved away from their old home.
She cannot return to Italy as she will be responsible for all her father’s debts and she will not be able to open a bank account or get a full time job.
Third Country Protection
During the scheduled hearing, the Tribunal discussed with the applicant whether she would be able to enter and reside, temporarily or permanently, in a third country for purposes of sections 36(3),(4), (5) and (5A).
Italy was a founding member of the EU and adopted the euro as currency on 1 January 1999 and is part of the Schengen agreement which permits free movement of travel, work and living of EU citizens between other countries who are a party to that agreement. The European union (EU) is an economic and political union of 28 countries which allows free movement of goods, capital, services and people between member states. Those stated include, Austria, Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and (presently) the United Kingdom. It was discussed as some length with the applicant the implications of s.36(3) of the Act, that Australia is taken not to have protection obligations where a non-citizen has not taken all possible steps to avail him or herself of a right to enter and reside in a third country, such as the UK or Spain, where they would not have protection concerns.
Based on the evidence presently before it, the Tribunal makes no finding as to whether the applicant has “statutory effective protection” outside Italy and within the EU (pursuant to subsections 36(3)-(5A) of the Act, as it has based its finding on the alternative bases arising from s.36(2)(a) and 36(2)(aa).
Findings
Having considered the claims and evidence the Tribunal finds that the applicant is an Italian national. She has a mother in Italy and her father’s whereabouts is unknown.
At the Tribunal hearing the applicant did not present evidence that her father had ties to the mafia in Italy. When asked if other members of the mafia helped her mother and her whilst her father was in prison she said no, and when asked about her father’s associates she did not know of any. It seems odd to the Tribunal that a man who spent a significant time in prison due to his mafia crimes would not have any mafia associates on the outside who were looking out for his family. It also does not seem realistic that the applicant claims her father opened a business and used her name yet she was not aware of any of his associates either coming or going or being at the business.
The applicant provided a letter from her mother that states that the house was in the applicant’s name and the loan was not paid due to economic difficulties. The letter says nothing to the effect that the applicants father put the mortgage in her name, rather it says that her mother was unable to pay the mortgage and had not spoken to her husband in over three years.
The applicant claims that her father took the loans out using her name then left her with all the debt. When asked why she did not get a lawyer or seek legal advice as clearly if as she claimed it was her father then there may be recourse for her to seek against him. However, she just said that she was responsible for the debt and they could find her anywhere. The applicant was able to travel to Australia and to other locations including [another country] and the applicant remained in Italy for three years after her father started his business. The Tribunal finds that the applicant did not fear her father and that she had resources at her disposal in order to be able to travel.
The applicant claims she fears harm from her father and that he smashed a phone and threw a chair. However, the applicant has not had any meaningful contact with her father for around seven years. Her mother has moved on with her life and likewise does not have contact with the father. Her father would likely not be able to find her as he has no contact and her mother has moved.
Having considered her claims and evidence the Tribunal accepts her claims that:
·Her father was in and out of prison for most of her life
·That she was living with her mother at the time
·That she enrolled at [University 1]
·That the applicant owes a significant amount of money in Italy
·That her mother is in a new relationship and has moved away
Having considered the claims and evidence, the Tribunal does not accept her claims that:
·Her father is a member of the mafia and has mafia ties
·That her father used her name to gain access to bank loans and other funds
·That she will be harmed by her father or his associates if returned to Italy
·That she will be unable to find employment and will not be able to open a bank account
The Tribunal does not accept that in Italy in the reasonably foreseeable future there is a real chance she will suffer serious harm for reason of membership of a particular social group “women suffering violence from father with mafia links”.
In light of the above assessment, the Tribunal finds that in Italy the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons she claims. The Tribunal finds that in Italy the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.
DECISION
For the reasons 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 Italy there is a real risk of significant harm, including that the applicant will suffer significant harm based on these claims, both individually and cumulatively considered.
In the context of these findings, both individually and cumulatively considered, the Tribunal does not accept that the applicant has any genuine personally held fears of persecution for any of the claimed nexus reasons outlined in s. 5J(1)(A) or any other reason, written or oral, in returning to the applicant’ country of nationality and reference, as the Tribunal finds that the applicant’s written and oral claims for protection have been embellished solely for migration purposes.
Accordingly, the applicant does not have a well-founded fear of persecution if she returns to Italy for any reason mentioned n s. 5J(1)(A) as required by s.36(2)(a).
Based on the available country information and the findings both individually and cumulatively, 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 Italy, there is a real risk of significant harm including that the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required by s.36(2)(aa) of the Act.
Conclusion
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 Act for the reasons mentioned in s. 5J(1)(a)(b) and (c). 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).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
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.
…

[2019] AATA 5530

7 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice