1708431 (Refugee) - [2021] AATA 3972

1708431 (Refugee) [2021] AATA 3972 (20 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708431
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Sheridan Lee
DATE:20 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2021 at 9:59 am
CATCHWORDS
REFUGEE – protection visa – Philippines – marriage to Australian citizen – death of spouse – no claims of persecution in the context of the refugee criteria – best interests of Australian citizen children – referred for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994
CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78
SZRSN v MIAC [2013] FCA 751
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 on 7 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [age]-year-old woman from the Philippines. She applied for the visa on 26 February 2015 on the basis that she would suffer harm as a result of separation from her Australian children. The delegate refused to grant the visa on the basis that there was no information to suggest that the applicant would be targeted on her return to the Philippines for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. Further, the delegate did not accept that there was a real chance of being subject to significant harm should she return to the Philippines.
The Tribunal viewed a copy of the applicant’s passport. I accept that the applicant is a citizen of the Republic of the Philippines and will assess the applicant’s claims against the Philippines as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The applicant appeared before the Tribunal via video on 18 August 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant did not raise any concerns in respect of the hearing format.

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 1708431 (Refugee)

Details

AGLC: 1708431 (Refugee) [2021] AATA 3972
Case: [2021] AATA 3972
Decision Date: 20 August 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman from the Philippines, who was married to an Australian citizen and had two Australian citizen children. The applicant had remained in Australia unlawfully after her tourist visa expired. Her husband had passed away in 2013. The applicant sought protection on behalf of her children, alleging that if she were forced to return to the Philippines without them, she would suffer severe emotional distress, and that her children would be left without care and face hardship due to the Philippines' social security system. The applicant explicitly stated that she had not experienced any harm in her place of residence. The Administrative Appeals Tribunal reviewed the decision not to grant the applicant a protection visa.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth), specifically whether she was a refugee or faced a real risk of significant harm if returned to the Philippines, and whether she qualified as a member of the same family unit as a person who held a protection visa. The Tribunal was required to consider the applicant's claims in light of the definitions of "refugee" and "significant harm" as provided in the Act, and to take into account relevant guidelines and country information.

The Tribunal reasoned that the applicant did not satisfy the refugee criterion under section 36(2)(a) as there were no claims of persecution based on the prescribed grounds. Furthermore, the Tribunal found that the applicant did not meet the complementary protection criterion under section 36(2)(aa), as she had not established substantial grounds for believing that there was a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The applicant's concerns related to the care of her Australian citizen children and potential hardship in the Philippines, rather than a well-founded fear of persecution or significant harm to herself. The Tribunal also noted that the applicant did not satisfy the criterion under section 36(2)(b) or (c) as she was not a member of the same family unit as a person who held a protection visa.

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

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant first arrived in Australia [in] August 2013 on a Subclass 676 Tourist visa. She departed Australia [in] April 2014 and again arrived [in] April 2014. Her tourist visa expired on 6 August 2014 and the applicant remained in Australia unlawfully. She has been in Australia since that time. The applicant married an Australia citizen in 2004 and the couple had two children, who are Australian by descent. The applicant’s husband passed away in 2013 after suffering from [a medical condition] for a number of years. The applicant supplied the Tribunal with the following documentation in respect of her children. An Australian passport issued to [Child 1], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent. An Australian passport issued to [Child 2], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent. She also supplied a Certificate of Marriage between [Mr A] and [the applicant] issued by the Office of the Civil Registrar General in the Republic of the Philippines [in] 2004 and a Certificate of Death issued by the Australian state of Queensland for [Mr A] [in] August 2013. Departmental records show that the applicant applied for a Contributory Aged Parent visa on 5 February 2015, however the application was deemed to be invalid.Application for protection The application for protection form submitted by the applicant outlines that she was seeking protection on behalf of her two children who would have no one to look after them in Australia. The children are Australian citizens and were not included as applicants for the visa. The application notes that when [Mr A] became ill, the couple applied for Australian citizenship for the children, which was granted. The intention was to apply for a spouse visa when the applicant arrived onshore. Unfortunately [Mr A] passed away two weeks after the family arrived and no application for a spouse visa was lodged. The applicant claimed that if she was forced to return to the Philippines without her children, she would die of heart failure knowing that they would become wards of the state. She further alleged that the children had renounced their Philippine citizenship and even if they returned to the Philippines, the applicant would have no job to support them. The applicant alleged that the social security system in the Philippines is poor and they would not receive the same benefits as in Australia. Finally, the application form stated that the applicant did not experience any harm in her place of residence.

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.Sheridan LeeMemberATTACHMENT - Extract from Migration Act 19585 (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.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…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 the 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 familyFor 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 familyFor 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.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(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.…

Ratio Decidendi

Legal Principle Established

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.84, made under s.499 of the Act, I have 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.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant first arrived in Australia [in] August 2013 on a Subclass 676 Tourist visa. She departed Australia [in] April 2014 and again arrived [in] April 2014. Her tourist visa expired on 6 August 2014 and the applicant remained in Australia unlawfully. She has been in Australia since that time. The applicant married an Australia citizen in 2004 and the couple had two children, who are Australian by descent. The applicant’s husband passed away in 2013 after suffering from [a medical condition] for a number of years. The applicant supplied the Tribunal with the following documentation in respect of her children. An Australian passport issued to [Child 1], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent. An Australian passport issued to [Child 2], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent. She also supplied a Certificate of Marriage between [Mr A] and [the applicant] issued by the Office of the Civil Registrar General in the Republic of the Philippines [in] 2004 and a Certificate of Death issued by the Australian state of Queensland for [Mr A] [in] August 2013. Departmental records show that the applicant applied for a Contributory Aged Parent visa on 5 February 2015, however the application was deemed to be invalid.Application for protection The application for protection form submitted by the applicant outlines that she was seeking protection on behalf of her two children who would have no one to look after them in Australia. The children are Australian citizens and were not included as applicants for the visa.