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

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 21 July 2014 and the delegate refused to grant the visa on 7 October 2016.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1617797 (Refugee)

Details

AGLC: 1617797 (Refugee) [2022] AATA 1067
Case: [2022] AATA 1067
Decision Date: 17 February 2022

CaseChat Overview and Summary

The applicant, a national of Romania, sought review of a decision not to grant him a protection visa. The dispute centred on his claims of fear of harm upon return to Romania, stemming from both a former neighbour and the country's healthcare system. The applicant also highlighted his long residence in Australia and his close family ties to Australian citizens as grounds for compassionate consideration. The matter was heard by a member of the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth). This involved assessing whether he was a person in respect of whom Australia had protection obligations under the 1951 Refugee Convention, or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, he would suffer significant harm, thus engaging complementary protection obligations. The Tribunal also considered the applicant's claims in light of Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information.

The Tribunal considered the applicant's claim of harm from a former neighbour, accepting that a relationship had existed and that the neighbour had threatened and harassed him prior to his departure for Australia. However, the Tribunal found that given the eleven years that had elapsed since the relationship ended and the lack of direct evidence of ongoing contact, it was unlikely that the neighbour's conduct would continue to the level of serious harm upon his return. Regarding the applicant's health concerns and the Romanian healthcare system, the Tribunal found that the evidence did not establish that the poor standard of healthcare or the prevalence of COVID-19 constituted systematic and discriminatory harm, or that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of removal. The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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’). 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.

Decision

Reasons for decision

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.Sean BakerMember

Ratio Decidendi

Legal Principle Established

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 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 The applicant claims he had a relationship with his neighbour and after it ended, she had threatened him. 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. 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. 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. The applicant had little else to say about this claim. 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. 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