1617797 (Refugee)

[2022] AATA 1067

1617797 (Refugee) [2022] AATA 1067 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617797

COUNTRY OF REFERENCE:                   Romania

MEMBER:Sean Baker

DATE:17 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2022 at 8:50am

CATCHWORDS
REFUGEE – protection visa – Romania – fear of harm from inadequate and corrupt healthcare system – multiple and serious physical and mental health conditions and cognitive decline – fear of harm from neighbour after relationship ended – long residence and only remaining family members in Australia – very poor standard of healthcare and prevalence of COVID-19 not systematic and discriminatory harm – country information – reform of social health insurance scheme – compassionate circumstances – close relationship to Australian citizen adult child and spouse and serious and continuing hardship – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAAJ v MIBP [2015] FCCA 151
SZDCD v MIBP [2019] FCA 326

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Romania, applied for the visa on 21 July 2014 and the delegate refused to grant the visa on 7 October 2016.

3. The applicant appeared before the Tribunal on 16 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter and son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Romanian and English languages. The applicant was represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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’).

8. 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.

9. The issue in this case is whether the applicant will be persecuted for a Convention reason if returned to Romania or, if not, whether there is a real risk he will suffer significant harm if removed from Australia to Romania. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims

10. The Applicant is a [Age]-year-old Romanian national. The Applicant is a widower whose wife passed away in 2004.

11. The Applicant first arrived in Australia [in] January 2010 on a Visitor visa. He was granted a Tourist visa onshore on 1 April 2010. The Applicant has been living continuously in Australia since [November] 2010 when he arrived holding another eVisitor visa and was granted a further Tourist visa onshore on 31 January 2011, which was valid until 7 November 2011. The Applicant applied for a Protection (class XA, subclass 866) visa on 21 July 2014, and currently holds an associated Bridging E Visa.

12. His only remaining family members are his daughter and his son-in-law who reside in Australia.

13. The Applicant suffers from a range of health issues, [details deleted]. The applicant is currently undertaking investigations regarding [a particular organ] where doctors have found an undiagnosed irregularity which has increased in size. Since 2005, the Applicant has required medical procedures and medical support for his health conditions. In more recent years the Applicant has suffered from mental health issues including severe claustrophobia, mood disorders, anxiety and depression for which he is now medicated. The applicant presents with an Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM V- 309.28) as a consequence of the significant health issues that have developed over recent years.

14. The applicant has difficulty with language and understanding due to the anxiety he experiences. I had regard to these issues during the hearing and allowed the applicant to have the assistance of his daughter throughout, as well as the services of the interpreter and access to breaks whenever he wished. It was agreed and the applicant provided post hearing submissions to address the issues raised at the hearing.

15. The applicant’s claims as summarised in submissions are:

    ·The Applicant fears that if he returns to his home country his physical health will rapidly decline and he will not have proper and adequate access to healthcare due to Romania’s corrupt and poor healthcare system.

    ·The Applicant has no family support in his home country and very limited community support, which will negatively impact his mental and physical health.

    ·The Applicant fears that if he were to return to his community in his home country, he will be degraded and humiliated by his neighbour who he had a relationship with prior to arriving in Australia.

16. In the post hearing submission, the representative noted that Romania is currently experiencing a large number of Covid cases, and reiterated the evidence given at the hearing about deadly hospital fires in Romania.

17. At hearing the applicant told me he had lived in [City], Romania for the whole of his life. He said he owned an apartment in [City] but had sold his land in [City]. He said he had come to Australia in 2010 to visit his daughter. After returning briefly to Romania he had returned to Australia and applied for a medical visa before applying for protection in 2014.

    Consideration

18. I have had regard to the copy of the applicant’s Romanian passport and his birth certificate on the Department file. I accept that the applicant is a national of Romania which is also his receiving country.

    Harm from neighbour

19. The applicant claims he had a relationship with his neighbour and after it ended, she had threatened him.

20. The applicant explained that prior to travelling to Australia he had had a relationship with a neighbour of his, a widow, and that had turned sour. After he returned from visiting Australia she turned his life into a living hell spreading rumours about him, and this had exacerbated the applicant’s blood pressure. I asked if this neighbour had done anything other than spreading rumours. He said she would come over during the night and stress and terrorise him, she threatened she was going to use a witch to finish him off.

21. I asked if he had reported these threats to the police and he said he had. He said that the police are corrupt and when he reported this to them they laughed in his face and told him this was not something you reported to the police.

22. He said he had called his daughter and asked if he could return to stay with them and she said he could. He said that he had been very very upset and stressed when the flight back to Australia was not smooth. He said that he had nightmares and the idea of meeting this woman again was doing bad things to him. He said he had not had any contact with this woman in the last 11 years.

23. The applicant had little else to say about this claim.

24. I accept that the applicant had a relationship with his neighbour. I accept that this relationship ended around the time the applicant came to Australia and that the neighbour threatened him and spread rumours about him and would come over during the night and stress and terrorise him and threatened to use a witch to finish him off.

25. However, I find that the applicant will not experience this treatment to the level of serious harm if he returns to Romania now or in the reasonably foreseeable future for the following reasons. I accept that if the applicant had to return that he would have to return to his apartment in [City] and that he would once more have his ex-partner as a neighbour. However, I do not accept that some eleven years later that this neighbour would continue her harassment and intimidation of the applicant, certainly not to the same level as she had done previously. Given the lack of direct evidence of any contact between the neighbour and the applicant or anyone associated with him, and the period of time that has elapsed since the relationship ended would, I find, mean that her anger and resentment would have cooled somewhat. Even were she to once again harass the applicant, I do not accept that it would be to the same level as eleven years ago on what he has told me. I do not accept that, given the time that has elapsed, she would threaten and intimidate the applicant at a level that would constitute serious harm if he returned, nor threaten him with witchcraft or going to a witch to harm him. I make this finding having accepted that the applicant is seriously physically and mentally unwell, and that her conduct may result in a differentially serious impact on him, but I find that the period of time that has elapsed has been so long that any conduct she might display towards the applicant would not be at the requisite level to constitute serious harm to him.  

    Health concerns and medical system

26. It was very clear during the hearing that the applicant is a very unwell man. It was clear that he suffers significant anxiety and distress. He explained that he was unable to have a CT scan to investigate the growth on [an organ] which may be malignant because he was unable to go inside the CT machine. He said he was unable to have surgery as he was physically not able to have the surgery; He has generalised pain in much of his body, unmanaged high blood pressure and headaches. He said he would be unable to fly as he is too anxious. His daughter confirmed that he had been advised not to fly as his blood pressure was so high.

27. The applicant explained that in Romania he had been hospitalised and there was no medicine available, they did not even provide food, his male neighbour had to bring him food at that time. He said he could not live on his pension, when he saw the doctor he had to pay bribes. Medication was supposed to be free for pensioners but by the time he went to buy it, it was not available. The idea that medications were free was a fiction. He said that in addition he had no relatives nor friends and without support he would not be able to survive. No one will take care of him.

28. [Mr A], the applicant’s daughter’s treating psychologist, gave evidence of his long involvement with the family and what he had observed of the applicant’s health and mental health. He saw that the applicant had struggled to cope with his health issues and had quite significant anxiety. He said that he was aware the applicant had no contacts in Romania. He said that he saw the applicant had become increasingly reliant on his daughter and son-in-law. If he was returned he believed the applicant would not be able to care for himself and would slip into a depressed state.

29. The applicant’s daughter gave evidence that the applicant would be unable to survive on return, he would not know how to look after himself. She said that the medical system in Romania was in collapse with the pandemic. She noted that there had been many fires in hospitals over there. She said that her father also had problems with memory and she was responsible for much of his care.

30. The applicant’s son-in-law gave evidence that the applicant was a very sick man. He would not be able to fly, let alone survive in Romania. He said that sending the applicant back would be condemning the applicant to certain death.

31. I raised my concerns during the hearing that, while I accepted that the applicant was extremely unwell, both physically and mentally, and while I accepted that the standard of medical care in Romania was worse than Australia and could be characterised as very poor, I was not sure I accept that this would lead to systematic and discriminatory harm for a refugee reason, nor that there would be conduct which would lead to arbitrary deprivation of life. I noted that I considered myself bound by Courts’ consideration of what appeared to me identical or extremely similar circumstances.[1]

    [1]     See SZDCD v MIBP [2019] FCA 326; MZAAJ v MIBP [2015] FCCA 151 in obiter at [42].

32. The applicant responded that there had been a failure of government in Romania and there was a lot of corruption and there had been many fires in the hospitals over there.

33. I noted that from the resources I had had regard to, the health system in Romania was very poor, but I was not sure I accepted that health treatment would be denied to the applicant or he would be unable to access health treatment. The applicant’s daughter conceded he may be admitted to hospital, but that family were expected to bring medications and food. I noted also as below that it appeared the applicant would be able to continue to access his pension which would assist him with living expenses and medical expenses. The applicant said this would not be enough to afford medicines.

34. I have had regard to the submission made prior to the hearing and the post hearing submissions.

35. The pre- hearing submission claims that the Romanian healthcare system is systematically corrupt and requires bribes to obtain proper medical care, which the applicant’s pension would not cover. It argues that the health expenditure has declined to 5.2% of GDP in 2021,[2] and while there is universal healthcare, access remains a major concern. It goes on to note there are groups who are not covered by the social health insurance scheme but this list does not include pensioners. The submission goes on to list the benefits provided for those insured and notes that the quality of care is considered poor; bribery and corruption, are firmly rooted in Romanian culture and claims patients reportedly bribe health workers to receive care. The argument is that this information indicates that the applicant will be significantly denied access to adequate medical care and that the current COVID situation has caused the health system to further deteriorate. The submission argues that Art. 7 of the ICCPR may be violated where an exacerbation of medical conditions could amount to torture, or cruel, inhuman or degrading treatment. However, it appears the submission has not engaged with the Australian legislative framework of complementary protection. The cases cited from the ECHR are of interest but also do not engage with Australia’s legislative framework.

    [2]     Gillet, K., ‘Romania’s underfunded health system creaks under the pressure of the pandemic.’ The New York Times, Published March 3, 2021, Updated Oct. 1, 2021, >

    The post hearing submission claims that the pandemic has significantly harmed the health system and that Romania has one of the lowers vaccination rates in the EU. Hospitals are operating at and above capacity and patients have been transferred to Hungary and Poland. It is claimed the government has collapsed and there are fears of civil war. It is also noted that there have been a number of deadly hospital fires recently.

36. I have carefully considered the claims of the applicant. I have accepted that he has very serious physical and mental health issues. I accept that he will face a lower standard of care in Romania than he does here, and I accept that he will not have the support of family as he does here.

37. However, I do not accept that the situation the applicant would be in would constitute the absence or denial of medical services. I note that many of the references provided in the post hearing submission are not up to date and do not address the reforms to the health care system and to the social health insurance scheme of 2017.[3] The more recent and up to date country information I have had regard to demonstrates that there have been improvements to medical services over the last ten years, albeit from a very low base, and albeit that COVID has had a very significant impact on the health system, as it has on health systems around the world. [4] Whilst these more recent references do refer to bribes, or ‘informal payments’, I do not accept that these are as expensive and entrenched as they were previously because the health system has seen reforms to the social health insurance scheme and the method of payments. I do accept that there would continue to be bribery in the system, and corruption, but I am not satisfied on the information before me that this is as significant as the references cited in submissions from 2005 – 2009. I note, as was conceded at the hearing, that the applicant, as a retired person, would have his contributions to the social health insurance scheme paid for by the state budget and would have access to healthcare on this basis.[5] He would not be one of the groups where access is of concern.

    [3]     OECD/European Observatory on Health Systems and Policies (2021), Romania: Country Health Profile 2021, State of Health in the EU, OECD Publishing, Paris/European Observatory on Health Systems and Policies, Brussels.

    [4]     OECD/European Observatory on Health Systems and Policies (2021), Romania: Country Health Profile 2021, State of Health in the EU, OECD Publishing, Paris/European Observatory on Health Systems and Policies, Brussels; Huihui Wang, Adanna Chukwuma, Radu Comsa, Tania Dmytraczenko, Estelle Gong & Lidia Onofrei (2021) Generating Political Priority for Primary Health Care Reform in Romania, Health Systems & Reform, 7:2.

    [5]     OECD/European Observatory on Health Systems and Policies (2021), Romania: Country Health Profile 2021, State of Health in the EU, OECD Publishing, Paris/European Observatory on Health Systems and Policies, Brussels; Huihui Wang, Adanna Chukwuma, Radu Comsa, Tania Dmytraczenko, Estelle Gong & Lidia Onofrei (2021) Generating Political Priority for Primary Health Care Reform in Romania, Health Systems & Reform, 7:2.

1. I do accept that COVID has put enormous pressure on the health system of Romania, and that they continue to have a low vaccination rate compared to Australia and the EU as a whole. These are issues which confront all Romanians needing healthcare and there is not information before me that this health crisis will lead to the applicant being discriminatorily denied healthcare.

2. On the basis of the above findings, I do not accept that the applicant will be denied access to, or lack treatment for, his health conditions in Romania for the essential and significant reason of a Convention attribute. Rather, he will be provided care as a pensioner under the social health insurance scheme, and any lack of medical care he receives will be a function of the poor health care system generally rather than for some specific reason connected or attributed to the applicant. Nor will the treatment be systematic and discriminatory against the applicant. I find on this basis that there is no real chance the applicant will suffer serious harm for a Convention reason on the basis of his accepted health problems and the medical care he will receive if returned to Romania now or in the reasonably foreseeable future.

3. It has been claimed in submissions that the applicant will be significantly denied access to adequate medical care and that an exacerbation of medical conditions could amount to torture, or cruel, inhuman or degrading treatment. I do not accept these arguments. Having carefully considered what I accept of the applicant, his health conditions, the health system in Romania and my finding that he would be able to access health care (albeit of a lower standard than Australia) and would not be denied that care for any reason, I find that the applicant will not suffer any of the defined forms of significant harm.

4. Although I accept that the applicant, with serious health conditions, may suffer greatly and may ultimately lose his life due to the health care system in Romania, it has been held that scarce medical resources, or a person not receiving the specialist care they need will not amount to arbitrary deprivation of life because it does not constitute conduct which is arbitrary.[6] Here, I do not accept on my findings above that the applicant will be subjected to arbitrary conduct by any person on return or in the medical system of Romania which will lead to the arbitrary deprivation of his life. The removal of the applicant from Australia would not deprive him of his life, rather it would deprive him of his present access to medical treatment.[7]

   [6]     See SZDCD v MIBP [2019] FCA 326; MZAAJ v MIBP [2015] FCCA 151 in obiter at [42]. See also Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.7.1 and 3.4.7.2, as re-issued 29 February 2020.

   [7]     SZDCD v MIBP [2019] FCA 326 at [48].

5. Having regard to the definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, these are defined under the legislation referring to ‘an act or omission’. There is, as I explained at the hearing, an element therefore of intentionality in inflicting treatment or harm that reaches these thresholds with an intention to do so. In being guided about the circumstances I have also considered the Complementary Protection Guidelines, which in this case I find helpfully set out circumstances generally not considered to be inconsistent with Art. 7 of the ICCPR as referred to in submissions. The Guidelines state that circumstances not inconsistent may include general socio-economic conditions, breach of social and economic rights, absence or inadequacy of medical treatment or imposition of treatment without consent, where that treatment is a medical or therapeutic necessity.[8] However, I am mindful that these should be determined with reference to an applicants’ circumstances. [9] Having regard to the circumstances of the applicant here I do not accept that he would suffer ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, or ‘torture’ by the intentional act or omission of any person on return to Romania. I make this finding on the basis that I have found the applicant will be admitted to hospital and will receive care, albeit care that is below the standard in Australia and in other parts of the EU. He will not be denied treatment. I do not accept that the level of bribery and corruption, which I have found above is lower than that claimed in submissions based on current information, that is in the health system will lead to him being denied treatment nor to an omission of treatment. I note as below that the applicant will have access to his pension in Romania and I find that he will be provided with some support by his daughter and son-in-law, whilst I accept their evidence that they cannot provide large sums to him.

   [8]     Department of Home Affairs, Complementary Protection Guidelines, sections 3.4.7.1 and 3.4.7.2, as re-issued 29 February 2020.

   [9]     SZSMQ v MIBP [2013] FCCA 1768 at [114].

6. It was claimed that the applicant has been advised not to fly as his blood pressure is too high. The applicant himself also said that he is too anxious to fly. I appreciate that flying will be particularly stressful for the applicant but on the information before me I do not accept that he would suffer significant harm as defined in the action of being removed, including being involuntarily placed on a flight from Australia to Romania. I note that such removal would be carried out in accordance with law.

7. I find on this basis that there is no real risk of the applicant suffering significant harm if he is removed from Australia to Romania on the basis of his health conditions and the conditions of the health service in Romania.

   Financial issues

8. Compounded with his health concerns on return, he also said that he would have to have his electricity and other services reconnected and he does not have the means to do that. Electricity and gas prices have risen sharply and his apartment is probably in no state to be inhabited.

9. The applicant’s daughter noted that they did not know the state of his flat and it might take quite a lot of money to make it inhabitable. She said she and her husband would not be able to support him over there as the expenses would be quite high. She then proceeded to talk about his need for medical support however, and that he needed someone to administer his medication.

10. I noted that it appeared that, as he had in the past, the applicant would be able to access his pension and that with this he could afford living and medical care. The applicant said that this was not sufficient for him to be able to live on.

11. The information before me, both from the applicant and the country information I have had regard to indicates the applicant would be provided with an aged care pension with a social aid supplement.[10] I appreciate that prices have risen and that the applicant would require some amount to make his apartment liveable again, but I am not convinced on the information before me that the applicant’s pension will be insufficient for this and to also supplement his medical needs. I also find that, despite their statements, the applicant’s daughter and son-in-law would be able to provide some level of support to the applicant. on the information before me the applicant owns his own apartment in [City] and would be eligible to receive the aged care pension and social aid supplement and I find that there is no real chance or real risk he will be unable to subsist on return to Romania.

    Additional and cumulative factors

    [10]    See EU Fact sheets Employment, Social Affairs & Inclusion – Romania, updated 2021, Romania - Employment, Social Affairs & Inclusion - European Commission (europa.eu).

12. It is claimed the government has collapsed and there are fears of civil war. I accept the country information indicates that the governing coalition collapsed in October 2021, and that this may precipitate early elections. I appreciate that this would be very concerning for Romanians but it is also an accepted part of political processes throughout the world where there are governing coalitions. I am not satisfied that the collapse of the governing coalition in October 2021 will lead to the applicant being harmed, nor aggravate factors I have accepted above to the level he will suffer serious harm for a Convention reason or significant harm as defined. I find the claim that there are fears of civil war to be entirely speculative and not based in any objective information.

13. I have carefully considered what I have accepted of the applicant’s situation and his claims above. I find that there is no real chance the applicant will be harmed for reasons of his past relationship with a neighbour, his serious medical issues and the health system in Romania, his financial situation on return, nor the collapse of the governing coalition in October 2021 or the claimed fears of civil war or any other reason, individually or cumulatively by his neighbour or any other person if he returns to Romania now or in the reasonably foreseeable future.

14. Having carefully considered the situation of the applicant I find there is no real risk of him being subjected to significant harm as defined as a result of his past relationship with his neighbour, his serious medical issues and the health system in Romania, his financial situation on return, nor the collapse of the governing coalition in October 2021 or the claimed fears of civil war or any other reason, individually or cumulatively by his neighbour or any other person as a consequence of his removal from Australia to Romania now or in the reasonably foreseeable future.

    Referral to the Minister

15. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

16. Having had careful regard to the applicant’s circumstances, and mindful of the Ministerial guidelines, I set out the following for consideration.

17. The applicant is an elderly man with very serious health conditions as set out above. He relies to a great extent on his daughter and son-in-law, Australian citizens. He has not family or any other supports in Romania and would return there as an elderly and unwell man.

18. The applicant has a great deal of community support within Australia. I refer in particular to the statements from the Bishop of [a named Church] and the Reverend [B] and Father [C] who note the applicant is a person of their congregation and of good character, and attended their services until his health meant he was unable to do so, that he relies to a great extent on his family in Australia and their concern that he would have no support on return to Romania.

19. Numerous statements refer to the support the applicant has from the community to remain in Australia and note his good character.

20. Having carefully considered the circumstances of the applicant, his character and the support of religious figures and the community, I am of the view that there appear to be compassionate circumstances regarding the applicant’s age, health and psychological state that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the person. I note also the applicant’s close mutual relationship with his daughter and son-in-law, Australian citizens. These factors appear to warrant further investigation by the Department and possible referral for consideration by the Minister.

21. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.

    Conclusions

22. 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).

23. 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).

24. 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

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

    Sean Baker
    Member