1700579 (Refugee)

1700579 (Refugee) [2018] AATA 3275 (10 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700579
COUNTRY OF REFERENCE:                  Vanuatu
MEMBER:Brendan Darcy
DATE:10 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 July 2018 at 2:25pm
CATCHWORDS
Refugee – Protection visa – Vanuatu – No protection claims – No submissions received by Tribunal – Request for Ministerial Intervention – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 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 21 December 2016 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 Vanuatu, applied for the visa on 31 August 2016.
The delegate refused to grant the visa on the basis that the applicant had not raised any claims for protection and stated that his sole intention in applying for a protection visa is to access a waiver of an 8503 condition through a Ministerial Intervention.
On 11 January 2017, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal, with the decision record attached.
On 4 July 2018, the Tribunal wrote to the applicant via his representative to seek clarification that it appears the applicant does not claim to satisfy ss.36(2)(a) or 36(2)(aa); that he wished the matter to proceed to request the Minister to personally intervene; that the applicant wanted the matter to decided ‘on the papers’ and not for a hearing to be scheduled. [1] The Tribunal asked for the applicant or his representative on his behalf to respond by 6 July 2018.
[1] AAT Folio 19.
Neither the applicant nor his representative responded by 6 July 2018. The Tribunal proceed to schedule a hearing for the applicant to give evidence and provide arguments that he is owed Australia’s protection obligations. The email was dispatched at 9.13 am on 10 July 2018.[2]
[2] AAT Folio 20-28.
At 10.02 am on 10 July 2018, the Tribunal received an email from the applicant’s representative that he was advised by his client that the applicant wishes the Tribunal to go ahead to make a decision on the papers and without a hearing.[3] The hearing was cancelled by the Tribunal as the offer had been declined.
[3] AAT Folio 29.
The Tribunal is satisfied that the above instructions are from the applicant via his authorised representative. In the above circumstances the Tribunal has determined to proceed to a decision based on the information available.
Consideration of Available Evidence and Findings
The applicant was born in [his home town] in Vanuatu on [date]. He claims to be a citizen of Vanuatu and has provided a certified copy of his validly issued passport issued by the authorities in Vanuatu.
With no evidence to the contrary, the Tribunal accepts the applicant is a citizen of Vanuatu for the purposes of s.36(2)(a) and s.36(2)(aa). The Tribunal is not aware there any third country in which he can enter and reside, either temporarily or permanently, with regards to s.36(3) and other third country protection provisions.
The applicant was granted a [temporary] visa [in] December 2011. He arrived [in] December 2011 and has not since departed. The applicant’s [temporary] visa ceased [in] March 2012 and remained an unlawful non-citizen until he was granted a bridging visa on 23 June 2016 when he invalidly applied for combined application for [different] visas.
The applicant requested a waiver to the 8503 ‘no further stay’ condition imposed on his [temporary] visa. The request was refused on 11 August 2016.
The applicant validly applied for a class XA subclass 866 visa on 31 August 2016.
In that application form for a protection visa, the applicant submitted:
“The only purpose of applying for this protection visa is to enable me to follow the due legal process to request the Minister to intervene my case (sic) to waive the condition 8503 (No Further Stay) so I can a lodge a valid partner visa application onshore.”
No further information or submissions in regards to claims for protection were attached.
As mentioned above, the applicant validly applied for a class XA subclass 866 visa on 31 August 2016, with the decision record attached.
There are no further or new claims for protection advanced by the applicant. The Tribunal has accordingly determined to proceed with its decision making based on the applicant’s instructions to his representative. These instructions were conveyed to the Tribunal stating the sole intent of the applicant’s protection visa application is to access Ministerial Invention provisions to seek the waiver of an 8503 condition.
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.
Given the applicant has not advanced any reasons as to the reasons he faces a real chance of serious harm for a reasons mention under s.5J(1)(a), at all, the Tribunal is not satisfied that the applicant is a person who satisfies the criterion set out in s.36(2)(a), if he were to return to Vanuatu, either now or in the foreseeable future.
As the applicant has not advanced any reasons his circumstances meet the criteria set out in the Act’s complementary protection provisions, the Tribunal does not have any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, will suffer a real risk of significant harm at all, as required by s.36(2)(aa).
There is no information before the Tribunal, the applicant does not satisfies the criterion set out in s.36(2)(b) or (c) whereby he is a member of the same family unit who satisfies ss.36(2)(a) or 36 (aa) or who holds a protection visa.
As the applicant does not satisfy any of the criteria referred to in paragraph 36(1A)(b) of the Act, the Tribunal has not considered the criteria referred to in paragraph 36(1A)(a) of the Act.
As the applicant does not satisfy the criteria for a protection visa, he cannot be granted the visa.
Ministerial Intervention
The applicant and his representative have indicated the applicant seeks to request the Minister to personally intervene in his matter by wavering condition 8503, which, in turn, will permit him to validly apply for an onshore partner visa.
As there is no submission received by the Tribunal to consider this request in detail, the Tribunal has no basis to recommend the merits of the applicant’s request for the Minister to consider.
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 s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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.
…

[2018] AATA 3275

10 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction