1618665 (Refugee)

1618665 (Refugee) [2019] AATA 6496 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618665
COUNTRY OF REFERENCE:                   Italy
MEMBER:Christopher Smolicz
DATE:23 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 23 August 2019 at 12:56pm

CATCHWORDS
REFUGEE – protection visa – Italy – political opinion – Democratic Party of Albania – claims targeted by Socialist Party of Albania members – family opposed to Albania’s Communist Party – fears harm by Albanian mafia in Italy – lengthy stay in Italy without experiencing politically motivated violence – inconsistent and vague evidence – renounced Albanian citizenship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
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 24 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Italy, applied for the visas on 11 February 2016.
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) of the Act. 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) of the Act, 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 of the Act, 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 (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
The first named applicant (the applicant) and the second named applicant were born in Albania. They married in 1987 and have four children (applicants 3 to 6). Applicants 3 to 5 were born in Albania and applicant 6 was born in Italy.
The applicants have travelled to Australia on a number of occasions. On each occasion they entered Australia on valid Italian passports.
The applicant, his wife and four children lodged protection visa applications on 30 July 2015 and 15 December 2015. They declared that they were citizens of Italy and Albania.
On each occasion the applications were deemed invalid by the Department under s.91P of the Act because the applicants have dual nationality, namely Albanian and Italian citizenship.
The applicants made requests for ministerial intervention under s.91Q of the Act but the requests were not referred because they did not comply with relevant guidelines.
On 11 February 2016 the applicant lodged a third application for protection. The applicant’s family members (applicants 2 to 6) are included in the application and are relying on the applicant’s claims. The applicant provided original documentation indicating that he and his wife and children had renounced their Albanian citizenship by decree which came into effect [in] April 2016. The applicants declared that they were seeking protection in Australia so that they did not have to return to Italy.
As detailed above the applicant provided the Department with original documentation indicating that he and his family had renounced their Albanian citizenship by decree which came into effect [in] April 2016.
For the purpose of the current application the Tribunal finds that each of the applicants has declared that they are Italian nationals and each applicant has provided copies of their Italian passports in support of this evidence. The Tribunal finds the applicants are nationals of Italy. Based on the above information the Tribunal finds the applicant has made a valid application and the Tribunal has jurisdiction to hear the review application. The Tribunal is satisfied that that Italy is the country of reference/receiving country for the purpose of assessing their applications for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because of his political opinion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
The Tribunal sets out the claims and evidence advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims and evidence from the applicant’s statement of claim, submission dated 6 May 2019, his protection interview and the Tribunal hearing.
The applicant claims he is a member of the Democratic Party of Albania (DPA) and due to his political opinion he faced problems in Albania from members of the ruling Socialist Party of Albania (SPA). His problems with the SPA started a long time ago because his family were opposed to the Communist Party in Albania.
The applicant provided the following evidence about his family history. When his grandfather died his father [was] looked after by a local priest who sent him to a [Christian] school. At the time priests were considered enemies of the Communist regime and were often publicly executed, and churches were burnt down. In 1944 his father was enrolled as a volunteer in the Partisan movement and after liberation his father moved to [another country] and opened [a business] where he [worked]. When his father returned to Albania the Communist government accused him of being spy for [that country] and he was jailed for [a number of] months. The persecution of his father had an impact on the family’s reputation and they were considered to be anti-communist. Subsequently the communist regime collapsed and two new parties were formed, namely the SPA and DPA. It was at this point in 1991 that the applicant became a member of the DPA.
He claims to be an active member of the DPA and to be in good relations with Sali Berisha, the DPA opposition leader.
He held meetings for the DPA members at his business [in] Albania. Members of the ruling Socialist Party of Albania (SPA) threatened him. He claims [Mr A], [an official], tried to shut down his business and ordered that his business licence be revoked. He claims several other businesses in his area were also shut down by the SPA.
Specifically he claims that [in] April 2015 he hosted a DPA meeting at his business premises. After the meeting he began to receive nightly visits from the police. The visits lasted for [a number of] weeks. He claims the police were trying to find something illegal at his business premises to justify the search.
[In] April 2015 he was scheduled to attend a meeting in [a location]. At [a certain time] when he was driving from his home to the meeting he was blocked by two cars. He was stopped by an armed hooded policeman. He was assaulted and left unconscious. He was picked up of the road by [Mr B] who was also on his way to the meeting. He was taken to a private doctor and treated for [a number of] days. The applicant provided a medical certificate from the treating doctor.
[In] May 2015 [Mr B] came to stay at his home in Albania. That evening at midnight his home was targeted by automatic gun fire. The applicant thinks it was a warning. [Mr B] called the police but the police did not attend. The applicant did not go to the meeting and stayed at a friend’s place for [a number of] nights.
The Tribunal was provided with supporting letters from DPA politicians [Mr B] and [Named Person], who states that the applicant was a member of the [specified] team of DPA candidate [name deleted].
[In] May 2015 he left Albania and travelled to Italy using his Italian passport so that he would not be stopped by the Albanian authorities. [In] May 2015 he travelled to Australia.
He claims to have been targeted in Albania and Italy by SPA members because of his membership and support for the DPA.
He fears returning to Italy because his political opponents are connected with Italian gangs and they have spies in Italy that can track him and his family. Consequently he made arrangements to move with his family to Australia to avoid further harm from his political opponents in Italy.
The applicant claims he renounced his citizenship because he suffered intimidation, physical violence and humiliation due to his political opinion in Albania. The second reason was moral. He claims the country doesn’t represent his ideas and he does not want to represent Albania in the world as their citizen.
In support of his claims the applicant refers to a DPA member called [Mr C] who was selected as a candidate in local elections in [a certain year]. It was submitted the applicant collaborated with [Mr C]. [Mr C] was targeted in 1997 by the police. It was submitted [Mr C] told the applicant that he must leave Albania. He claims [Mr C] was murdered in Albania in suspicious circumstances [a number of] weeks after the applicant arrived in Australia.
The applicant submits that he is unable to live elsewhere in the EU because he fears the Albanian mafia (Klemend Balili). He states Greek Interpol have an arrest warrant for Balili. He claims Balili is a private sponsor of the SPA political campaign and is protected by the Albanian government. He claims his whereabouts is unknown and he could be anywhere in Europe.[1]
[1] Media reports confirm that Balili surrendered himself to the Albanian police in January 2019 >
The applicant provided a number of online news articles referring to an altercation at a restaurant in the coastal village of Patok in September 2015. The articles suggest that Socialist Party MP, Armando Prenga, was accused of shooting Tom Cali, a 66-year-old fisherman and resident of Lac, in a quarrel over fishing rights.
Tribunal hearing
The applicant confirmed at the commencement of the hearing that he and his family were seeking protection against Italy as the receiving country/country of reference. The applicant confirmed that his family members were not making individual claims and were relying on his claims for protection. The applicant repeated his written claims for protection during the hearing.
The applicant said that he was not granted refugee status in Italy but he was in a refugee camp in Italy [in] 1997. He said that his family travelled to Italy in about 1998. His son [initially] stayed in Albania and travelled to Italy after a few years. His other song [was] born in Italy. When he was in Italy he was fortunate to meet a person in the [specified] industry in [location] who sponsored him and he was able to obtain residence statues. After two years he was granted ‘carta soggiorno’ [Italian residency permit card Permesso Di Soggiorno]. The family eventually moved to [a city] where they have lived for the past 10 years prior to arriving in Australia. The applicant said that he worked [and] his children attended school in Italy.
The Tribunal referred the applicant to his movement records which are detailed in the delegate’s decision. The Tribunal noted that since May 2012 he has travelled to Australia on five occasions. Specifically, prior to his last visit, he travelled to Australia in May 2012, October 2012, January 2013 and May 2013.
The Tribunal questioned the applicant why he had not previously applied for a protection visa if he feared harm in Albania and/or Italy. The applicant said that he did not fear any harm in Albania or Italy prior to the incident in April 2015. The applicant said that he was working hard in Italy but had invested all his money in Albania, and had to return to Albania to manage his business interests.
The applicant said he was unable to work in Australia due to his visa conditions. The Tribunal questioned the applicant about how he was financially supporting himself and his family in Australia. The applicant said that he had property in Albania which was generating rental income. He maintained that he did not own any property in Italy.
Using the procedure in s.424AA of the Act the Tribunal referred the applicant to an MRT decision dated 12 September 2014 in which his wife and applicants 4 to 6 applied to the Tribunal to review the Department’s decision to refuse to grant them student visas.[2] The Tribunal told the applicant that according to information provided by his agent detailed in the decision record the he has rental properties in Italy and Albania. The applicant did not request time before he responded to the information. The applicant said that he was not present at that hearing and that he only has property in Albania and it might be a mistake. The Tribunal has had regard to the applicant’s evidence and is prepared to accept that he only owns property in Albania.
[2] MRD decision case number [specified] dated [specified]
The Tribunal questioned the applicant about his involvement with the DPA in Albania. The applicant said that he joined the DPA in 1991 and was involved in [certain activities]. When questioned about what particular role he had within the DPA the applicant said he was offered different positons but did not accept them because he wanted to live a simple life.
The Tribunal found the applicant’s evidence about his political activity in the DPA vague and inconsistent. For example, the applicant admitted that he did not hold any position in the DPA because he wanted a simple life. However, when he was questioned about the meeting held at his business in April 2015 he claims held the positon of [deleted] in the DPA.
The applicant also claimed that in 2013 he gave advice to the DPA about who they should nominate as their next leader. The Tribunal told the applicant given his background as someone who was working in the [specified] industry and living in Italy at the time it found it surprising that he would be providing leadership advice to the DPA. After further questioning the applicant he said that from [May] 2015 he ceased being active within the DPA.
The Tribunal explained to the applicants that it must assess their claims looking to the reasonably foreseeable future. The Tribunal asked the applicant to explain why he feared harm if he was to return to Italy in the future. The applicant said that he would be killed if he returned to Italy. He said that there were 18 members of the Albanian parliament involved in organised crime such as prostitution, murder and drug trafficking. He said that the longest serving former [official] [Mr A] became minister at the age of 30 due to his family connections. He was involved in contraband and is wanted by INTERPOL.
The Tribunal has had regard to country information regarding the arrest of [Mr A] which confirms he became [an official] at the age of [age] and in [2018] he was [arrested].[3]
[3] [Source deleted]
The applicant referred the Tribunal to [Mr A] [and] police officers in Italy and Albania feared investigating the offence because they feared for their lives.
He claims he is not safe in Italy or anywhere else in Europe. He claims members of the SPA are linked to organised crime. In a post hearing submission the applicant referred the Tribunal to a media report by ‘BILD’[4] about collusion with organised crime, vote-buying, voter intimidation and misuse of a public administration official by the Social Party of Albania, including Prime Minister Edi Rama among other members of government in Albania. The Tribunal has considered the information and finds that members of the ruling Socialist government are being investigated as part of a three year anti-mafia prosecution. The Tribunal finds that the reports would suggest that the authorities in Albania are attempting to investigate and prosecute organised crime.
[4] Bild newspaper is a German tabloid published by Axel Springer AG. >
The Tribunal questioned each of the applicants about their fear of returning to Italy. They had nothing further to add and maintained that they were happy living in Australia and wanted a future in Australia. Applicant 3 said that he was born in Albania but loved growing up in Italy. He travelled to Australia on a [temporary] visa and is now involved [in an occupation] and has a future in [sport] in Australia. He applied for [a temporary] visa on which his father travelled to Australia in 2015. He believes it was a miracle that the visa was approved at the same time that his father’s life was threatened in Albania. Applicant 3 said that at the time his father did not tell them that his life was threatened in Albania because he did not want his family to suffer. He said that his father initially did not want to stay in Australia because all his life and business interests were in Albania. Applicant 4 said that the visa process had had an emotional impact on him. He worked with [a certain group of people] and [worked in occupations]. The applicant’s wife said that her husband was very stressed and she is worried about his health.
Findings

The Tribunal finds that after World War II the communists had commenced to take over Albania, thousands of Albanian’s were driven into exile and family members were imprisoned in labour camps.[5] The Tribunal finds that the applicant’s claim that his father experienced persecution under the communist regime in Albania is consistent with the country information.
[5] >
The Tribunal has had regard to country information and notes that tens of thousands of Albanians arrived in Italy in the 1990’s after the collapse of Albania’s communist dictatorship and the economy. From March 1997 Albania was on the verge of civil war as a result of the collapse of ‘pyramid selling’ schemes, which resulted in a mass migration crisis. The Italian home office estimates that in August 1997 about 16,964 Albanians had arrived in Italy since March.[6] The Tribunal finds the applicant and his family were caught up in this mass migration and relocated to Italy in 1998.
[6] Albanian Migration to Italy: towards differential circularisations? Dr Nick Mai ISET London, Metropolitan University
In assessing the applicants’ claims country information confirms that “Since the fall of communism, Albania has consolidated a bipolar party system, which reflects the main post-communist divisions in society. The DP [Democratic Party of Albania], created soon after the sanctioning of pluralism in 1990, has ever since represented the center-right and in a way monopolized the anti-communist movements that brought down the communist regime. Jet as an umbrella party, the DP structures included various dissident but also groups connected to the outgoing communist regime. The reshuffling of the party structures in 2013 has brought in a new class of professionals with little relation to anti-communist or dissident movements. The SP [Socialist Party of Albania], created in 1991, hails from former communist organization, but has reshuffled itself after the European center-left and features a generation of young leaders coming from the anti-communist movement. The main “third” party, the Socialist Movement for Integration, is a split from SP. In general, smaller parties have difficulties consolidating their position and can enter political life only when allying with one of the two big party families. The regional proportional electoral system adopted since 2008 has reinforcing the traits of a bipolar system and increased the role of party leaders in determining who enters and stays in the system. Electoral volatility has decreased since 2001 and was relatively low in the 2013 elections (17%).”[7]
[7] BTI 2016 Albania Country Report p.14 >
The Tribunal has had regard to the country information and accepts the applicant had been an ordinary member of the DPA since its inception in 1991. The Tribunal accepts that the applicant may have hosted meetings at his business premises and became acquainted with DPA politicians in Albania. The Tribunal finds the applicant did not hold any official position in the party and embellished his political involvement in the party. As detailed above the applicant said that he did not take up any role within the party because he wanted a simple life. The applicant claims he took part in [certain political activities] in Albania and conceded at the hearing that he did not have any problems until April 2015. The Tribunal finds it surprising that the applicant would encounter problems from the authorities in April 2015 because he was hosting a DPA meeting in his [business] in circumstances where he had had no problems since he joined the party in 1991.
The Tribunal is however prepared to accept that there may have been a political gathering at the applicant’s [business] and he came to the adverse attention of the Albanian authorities (police) and SPA members in April 2015 and was injured, and as a consequence decided to leave Albania and then join his wife and children in Australia.
The Tribunal does not accept that the applicant is a person of any further interest to the authorities or SPA members since this time. The Tribunal does not accept that the applicant had to flee Italy because he feared harm in that country due to his political opinion or because of the prevalence of the ‘Albanian mafia’. In this regard the Tribunal found the applicant’s evidence to be vague, speculative and Inconsistent when he was queried regarding why he feared the harm in Italy.
The applicant’s migration history, which is detailed in the delegate’s decision, discloses that the applicant unsuccessfully applied to travel to Australia on a [temporary] visa in June 2014 and March 2015. He subsequently applied for [another temporary] visa in April 2015 and the visa was approved in May 2015. The Tribunal finds that the applicant left Italy because his Australian visa was approved, and he wanted to be reunited with his family and travelled to Australia. [8]
[8] See applicant’s migration history (p.3-8) detailed in the delegate’s decision which was provided to the Tribunal as part of the review application.
The Tribunal has regard to media reports and accepts that the ‘Albanian mafia’ did have a presence in Italy especially in early 2000 following the Albanian political crisis and mass migration to Italy.[9] The Tribunal finds however that there is no evidence to suggest that the applicant or his family have had any problems with the Albanian mafia in the past. The Tribunal finds that it is mere speculation to say that the applicants will be targeted by the Albanian mafia if they return to Italy in the reasonably foreseeable future. The Tribunal finds that the applicant and his family settled in [a city] where they lived for about 10 years prior to arriving in Australia. The applicant said that he worked [and] his children attended school in Italy. The third named applicant said he only had positive memories of their time Italy. Further, it is apparent from the applicant’s evidence that despite leaving Albania in about 1998 and obtaining Italian citizenship in 2012 he continued operate a businesses and travel between Italy and Albania during this time.
[9] Albanian mob moves to Italy, April 01, 2000 The Centre for Peace in the Balkans
Importantly the applicant admitted at the hearing that he had not experienced any harm in Italy or Albania prior to the incident in April 2015. The Tribunal finds that the applicant has not experienced any politically motivated violence in Italy at any time. The Tribunal finds that the applicant departed Albania in 2015 and has had no involvement in politics since this time. For example, he has had no involvement in Parliamentary elections (June 2017) or Local elections (June 2015 and 2019) held in Albania. He has renounced his Albanian citizenship and has been living in Australia with his family for over four years. The Tribunal finds the applicant is no longer a person of any interest to his political opponents or the Albanian authorities. The Tribunal has had regard to the applicant’s political profile and finds that it is mere speculation that he will be targeted by members of the SPA, criminal gangs or the Albanian authorities if he returns to Italy in the reasonably foreseeable future.
The applicant has now renounced his Albanian citizenship and claims Albania doesn’t represent his values and he does not want to represent Albania in the world as their citizen. Having regard to the applicant’s profile and migration history the Tribunal finds the applicant is not a person of interest to his political opponents in Albania or Italy.
The Tribunal finds the applicant and his family are Italian citizens and have access to police protection in Italy. Country information confirms that Italy has an independent police force and judiciary and respects the rule of law. Civilian authorities maintain effective control over the security forces, and the government has effective mechanisms to investigate and punish abuse and corruption. Impunity involving the security forces has not been reported recently. The Constitution prohibits arbitrary arrest and detention, and the government generally observes these prohibitions.[10] It also provides for an independent judiciary, and the government generally respects judicial independence. The judiciary enforces the constitutional right to a fair trial.[11]
[10] 'Italy – Country Report on Human Rights Practices 2016', US Department of State, 3 March 2017, OGD95BE927002, Section 1.d
[11]‘Italy – Country Report on Human Rights Practices 2016', US Department of State, 3 March 2017, OGD95BE927002, Section 1.e
Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Italy because of his actual or imputed political opinion. The Tribunal finds that the applicant’s fear of harm is not well founded.
Having found that there is not a real chance the applicant will face serious harm in Italy because of his political opinion the Tribunal is also not satisfied there is a real chance that his wife and children (applicants 2 to 6), will suffer serious harm in Italy because of their imputed political opinion or because they are members of the applicant’s family.
The Tribunal has also considered the applicants’ claims having regard to the complementary protection criteria.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in 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) definition: MIAC v SZQRB [2013] FCAFC 33.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Considering the applicant’s individual circumstances and the relevant country information discussed above, and having regard to the findings of fact set out above, the Tribunal also finds that there are not 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 that he will suffer significant harm as set out in s.36(2A), from members of the SPA (his political opponents), the Albanian authorities or the Albanian mafia in Italy because of his actual or imputed political opinion.
In this regard, the Tribunal has considered the level of protection that the applicant could obtain in Italy, if necessary, noting that the relevant test under the ‘complementary protection’ criterion in relation to protection available from an authority of the country is a different and higher level one to the ‘effective protection’ test which applies in relation to the ‘refugee’ criterion. The Tribunal assesses that the protection measures available to the applicant, as discussed above, are such that the level of risk to the applicant is remote and there is not a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Italy. This is because the Tribunal finds that protection is available to the applicant in Italy.
Having found that there is not a real risk the applicant will face significant harm in Italy the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of applicants 2 to 6 being removed from Australia to Italy, they will suffer significant harm because of their political opinion and/or because they are members of the applicant’s family.
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
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 6496

23 August 2019

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Immigration

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Statutory Interpretation

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