1711185 (Refugee)

1711185 (Refugee) [2022] AATA 426 (11 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711185
COUNTRY OF REFERENCE:                   Czech Republic
MEMBER:Sean Baker
DATE:11 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first named applicant a protection visa.
The Tribunal finds that it has no jurisdiction in relation to the second and third named applicants.

Statement made on 11 January 2022 at 4:42pm
CATCHWORDS
REFUGEE – protection visa – Czech Republic –Jewish ancestry – race – children were not the subject of a primary decision – vague statements and speculation without any evident basis – a single-mother – membership of a particular social group – prejudiced comments do not amount to serious or significant harm – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994, r 4.02; 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 and Border Protection on 13 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of the Czech Republic, applied for the visas on 8 February 2017. The delegate refused to grant the visas on the basis that the delegate found that the first named applicant (the applicant) was able to enter and reside in a safe third country pursuant to s. 36(3).
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision in relation to the second and third named applicants had been made. The first named applicant confirmed that they had not ever been onshore. The first named applicant asserts that her children should be considered for refugee status despite not being in Australia. However, and as explained to her, there is no capacity for the Tribunal on its own motion where there is no primary decision in relation to the second and third named applicants to consider their claims or make a review decision.
As no reviewable decision for the second and third named applicants had been made at the time the review application was lodged it follows that the application for those applicants was not properly made and the Tribunal does not have jurisdiction in relation to those applicants.
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 (Cth) (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 themselves of the protection of that country: s 5H(1)(a). 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), 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, 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.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer persecution on return to the Czech Republic or, if not, whether there is a real risk the applicant will suffer significant harm if she is removed from Australia to the Czech Republic. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
The applicant fears harm on return to the Czech Republic. In her protection application she claimed that she had experienced growing racism and bigotry towards her family.
She has Jewish ancestry and has experienced racism. She experienced persecution from her neighbours who wish her to move out. The state is complicit as the authorities would take the family property. She linked this claimed treatment to the treatment of Jewish citizens, including her ancestors, during World War II. She claimed she would be falsely accused and jailed for stalking her own children, for not following the state office orders, and her property will be detained by the state.
She claims to fear harm from state officers who will repress her and jail her or admit her to a psychiatric clinic, from her neighbours to profit from her family property, and to fear death threats.
Her children have Burmese and Jewish ancestry and have experienced racism. Her sons will be physically harmed due to their race. She claims the state is trying to take state custody of her children who are currently in the care of her elderly mother and will force the children into adoption. She fears her children will suicide if they do not have parental contact.
There is no freedom of religion. She will also be targeted because she is shaming the Czech Republic for denouncing racism and mistreatment. Her life will be completely destroyed and she will not be able to get a job. She claims to have been discriminated against and humiliated, and was unable to get a job due to her Jewish race.
She also stated that she was not sure whether she had been charged with an offence, stating if she or her sons would be charged in the same manner they did during World War II to the Jews. She said the Czech Republic eliminated people and takes over their property.
Included in her application was a copy of her Czech Republic passport, her birth and baptism certificates, her study history, the passports, birth certificates and baptism certificates of her children and medical statements, her marriage and divorce certificates to the father of her children, photographs of her family, details of her Czech and German Jewish ancestry and articles including on claimed death threats against a teacher.
The application also included applications for the second and third named applicants. These were found by the delegate to be invalid as the children were offshore and there was no further processing of their applications. As above, the children were not assessed and a decision was not made on their applications and I therefore do not have jurisdiction.
However, I have considered the information and claims that the applicant included in the applications for her children. In these applications she stated that her children were kept by the Czech state and prepared for forced adoption against the parents’ will, did not have milk, was in a life endangering situation and not able to regularly attend sports and not allowed to practice their religion, and suffering without the love of their parents. This repression was aimed at their death, suicide or elimination. It is claimed that the children suffered daily beatings, mistreatment, separation from their parents, brain washing and were denied access to sports and healthy food and could not practice their religion or pray.
After the visa was refused by the Department, the applicant provided an ‘application for extension of time’ and [Mr A], a friend, provided a letter of recommendation in relation to the applicant for her protection visa, which are on the Department file. These set out the history of the applicant, their companionship, and a request to extend time for her protection visa.
To the Tribunal the applicant provided the delegate’s decision, and accompanying this, a document which provides details of the applicant’s claims that she and her family have suffered racism in the Czech Republic as well as her comments on the primary decision. She asked for time to find a lawyer and asked for an interpreter/translator. The applicant also included the documents and articles submitted to the Department as well as several more recent articles on antisemitism and generalised racism in the Czech Republic and Europe.
In December 2018 the applicant was married to [Mr B] and changed her name.
The applicant was invited to a hearing on 4 November 2021. However, she asked for more time for a range of reasons including to recover from her COVID-19 vaccine, prepare her case, invite witnesses, and write a statutory declaration about her life in Australia. This request was granted. She also provided further articles as well as information about her marriage and her carer role for her husband.
She also provided a statutory declaration which sets out her life and her claims in considerable detail
A new hearing was set down for 7 December 2021. The applicant requested a further postponement due to a medical issue which would require frequent breaks and because she had her second COVID-19 vaccine on 2 December and the last one caused her four days discomfort. The Tribunal responded noting that I was sympathetic to the reason she had given but I did not consider that these amounted to reasons which would limit her capacity to fully participate in the hearing and to allow for her comfort the tribunal would take breaks during the hearing on a roughly hourly basis and consider any request she made for further breaks during the hearing.
The applicant then responded stating she would attend the hearing. she noted the documents she would be relying on and that her husband would be a witness.
She provided a range of evidence about her spousal relationship including information relating to an application for a partner visa including statements and supporting statements about the relationship with her husband. She provided a statutory declaration about her married life to [Mr B] and he provided a statutory declaration in the same terms. She provided information that she is her husband’s medical treatment decision maker and carer.
After the hearing the applicant provided a further statement which stated she and specifically her sons had experienced harsh harm, she and her children had been forcibly pushed out of their property, forced to work, forced to spend money on legal protection, forced reeducation of the children, physical mental and self-harm of her children, and the applicant demanded compensation for her losses.
Consideration
I have had regard to the applicant’s Czech Republic passport and find that she is a national of the Czech Republic. Whilst I accept that the applicant resided for many years in Germany I accept her claims that she did not acquire German citizenship, nor did her children.
Claims in relation to mistreatment by neighbours
The applicant claimed that her neighbours were conspiring to seize her apartment. She claimed this began in approximately 2012 when her [neighbours] plotted to get her flat, and that the applicant’s mother had to go to court in 2015 to keep the flat, and that her mother had won in court but the neighbours were not happy and would wait until her mother passed away and had a court decision for her sons after the applicant’s removal or her mother’s death.
Despite claiming that this had begun in approximately 2012, the applicant could not explain in any detail how her neighbours were conspiring to seize the apartment. She said that after they returned from Germany she had moved with her sons to an apartment closer to her mother’s and that this apartment was in her mother’s name. She said when the neighbours realised in 2008 that she did not have a husband, and was a single mother, the neighbours wanted to push the applicant and her children out. The applicant said also that her name sounded very Jewish and her married name and that of the children [meant] the neighbours called them gypsies.
When questioned about who owned or occupied the apartment now, the applicant was vague and unclear. She said that her uncle may be residing there. She then said that her eldest son will be [age] next year. She then conceded that she did not know what had happened with the apartment but she knew they were under pressure and the officers are trying and have a court decision so that they can get the apartment if her mother dies before her children turn 18. She said she does not know how the neighbours arranged this, she only knows the neighbours want the house. She said that this apartment was her mother’s apartment. I asked why her mother’s property would not become her property if her mother did pass away and she did not contradict this but claimed vaguely that everything could be arranged.
The applicant said that she did not have any property in the Czech Republic and if she was sent back she would be homeless and put in jail. I noted that from what she had told me I might form the view that she could return and live in the apartment she had previously lived in that was in her mother’s name. She responded that she did not have any keys. She said that she had been in Australia for six years waiting and she did not know what was happening over there. She said her last information was that there was enormous pressure to get the apartment from her family, there was pressure to divide the applicant’s mother from her.
Having carefully considered the information and claims before me, I do not accept that the applicant or her children will be seriously or significantly harmed by her neighbours. I am willing to accept that the applicant and her children did not have a positive relationship with their neighbours. I am willing to accept that there may have been some legal action taken by these neighbours in relation to the apartment. But I find on her evidence that her mother won this legal action, and whilst I am willing to accept the neighbours may have been unhappy about this, the applicant was unable to explain or even detail her claims that they would arrange for the apartment to be seized if her mother died. I find her claims that this would be arranged, and that the neighbours are in league with various officials to be purely speculative on the applicant’s part because she was unable to describe any mechanism by which this would occur. I note also that the court action she claimed her mother won occurred in 2015 and the applicant was unable to tell me of any further actions taken by the neighbours after this.
I am wiling to accept that the neighbours may be prejudiced towards the applicant and her children because of their Jewish and, in the case of the children, Burmese heritage. But I find on her evidence that this has amounted only to, at most, derogatory comments made by the neighbours and no more.
Even accepting the applicant’s claims that the neighbours were involved in legal action to remove the apartment from the applicant, this occurred in 2015, the applicant’s mother won the legal matter in court and the applicant was unable to describe any further activities or actions by the neighbours since that time.
I find that if the applicant returned to Prague she could gain the keys from her mother and live in the apartment she resided in with her children once more. I find that the neighbours may continue to be prejudiced and have a poor relationship with the applicant and her children, but at the highest this would amount to derogatory comments made by the neighbours and no more. I find that there is no basis to find that the neighbours have or would seek to remove the apartment from the applicant and her mother.
Claims in relation to mistreatment of her children
The applicant’s claims are preoccupied with the claimed harm done to her children. As I explained to the applicant at the hearing, I cannot consider the claims of the children as applicants because they were not the subject of a primary decision and they are outside Australia. I explained that I did not have power to do as the applicant wished and bring them to Australia to have the claims considered.
However, I have considered the claims as they relate to harm to the applicant as their parent.
The claims are that the authorities, or others, have placed the children in a boarding school where they are mistreated, and that they have been denied access to artistic and physical activities.
However, at hearing the applicant said that she had last had contact with her mother in August 2021 and that at that time her children had been living with her mother. She said that she was not allowed to speak with them and that her mother was probably their guardian. She said she had not seen her children since she had left the Czech Republic in August 2016. I asked if she had been her children’s guardian when she left in August 2016 and she said she had and then said she was not sure. She said that she didn’t know when she had stopped being their guardian exactly. She said that because they had been bullied in her apartment the applicant had agreed that the children could stay with her mother and she came here to communicate in person with her (ex)husband, [name deleted].

The applicant has claimed that her children suffer daily beatings, mistreatment and brain washing. I do not accept that this is the case. The applicant’s claims in relation to this are overblown and lacking any clear evidentiary basis. I do not accept these claims. She also claims that the children do not have access to the love of their parents. This appears, sadly, to be true, but it also appears that this is entirely due to the choices she, and her former husband have made to leave the Czech Republic and the children. I accept that the children may suffer some level of harm from the lack of their parents, but I also note that from all of the information the applicant was able to provide, the children are cared for by her mother and are attending a school. I do not accept that this amounts to serious or significant harm to the applicant.
I find on the available information that the applicant’s mother is the guardian of the applicant’s children and has been at least since the applicant departed the Czech Republic in August 2016. I do not accept that they will be forced into adoption, even despite the applicant’s mother’s advanced age and I note that the eldest will become an adult [soon]. I am willing to accept that the children were moved to a different school, a boarding school, and may not have been able to attend recreation and sporting classes which they had previously attended after the applicant’s mother became their guardian. But I do not accept that this was engineered or brought about by the authorities or anyone else in an attempt to harm either the children or the applicant. I accept that the children may not have had access to the types of food they had previously had access to. But I do not accept that any of this was a campaign or deliberate act by any person or the authorities or anyone else to harm the applicant or the children. I do not accept that the applicant’s children have been harmed or mistreated in the ways claimed by the applicant, because she has been unable to provide any detail of this claimed harm or mistreatment. The applicant does not appear to have had very much contact with her children since she departed the Czech Republic. I accept that the applicant finds this separation difficult, but I also find that this means the applicant has very little information to base her speculation of the children’s welfare on. Whilst I am willing to accept that the children may have suffered comments on their appearance, I do not accept that the applicant’s children have suffered serious or significant harm in the past nor that there is any real chance or real risk they will in the future. I do not accept that there is any basis to conclude that the applicant’s children will be eliminated or somehow forced to suicide.
Claims in relation to mistreatment by the Czech authorities
The applicant’s claims involve her view that the Czech authorities, or others, are seeking to harm the applicant and her children because of her Jewish background and the children’s Jewish/Burmese background. She claims that the authorities may have played some part in the difficulties and court action by her neighbours, and in the claimed mistreatment of her children. There is no credible basis, in her evidence or in any information before me to support this and I find that this is pure speculation on the applicant’s part with no basis in any concrete action or information of any person in the authorities of the Czech Republic or anyone else.
I have had regard to the articles the applicant has provided as well as country information about the situation in the Czech Republic and Europe. I accept that there are people who are racist and who discriminate against those from different races. I accept that there is a strain of anti-Semitism in the Czech Republic and many other European countries. I accept that the Swastika in the Prague subway in 2016 is one marker of a more outspoken strand of anti-Semitism and intolerance emerging in the Czech Republic and other parts of Europe. But I do not accept that this generalised information is a basis for concluding that the applicant or her children have been treated or would be treated in the ways she has claimed, nor that her difficulties with her neighbours, and the fact her children have moved school and are not able to attend the education and sporting activities they once did nor eat the food they once did is part of a plot or connected to this generalised information. I do not accept that the situation for those of Jewish descent or those of mixed ethnicity is similar in any way to the situation in Europe in the 1930s and 1940s.
I asked her a number of times at the hearing what harm the authorities had done to her or what harm she feared from them on return. The applicant was unable to provide anything more than vague statements and speculation without any evident basis.
I asked her a number of times which officials in particular had harmed her or were behind the observation and other conspiracies she claimed were occurring. she said she did not know who it was and would only know 50 years later. She referred to the fact she had been asked if she was Jewish by the German officer who was processing her citizenship. Even if she was asked if she was Jewish by a German officer or by a Czech officer as she has claimed the applicant has been unable to explain or provide any information to establish that these events have led to her or her children being harmed in any way.
I do not accept that the Czech authorities or any official have had the applicant or her children under surveillance or observation nor that the authorities have sought to harm the applicant or her children. I do not accept that they have been involved or assisted her neighbours to try and seize her apartment, nor that the authorities would seize her apartment for any reason, nor that they have been responsible for her children moving school, losing access to cultural and sporting opportunities, or anything else. I do not accept that there is any basis to conclude the authorities would place the applicant in a psychiatric clinic or any other institution.
The applicant claimed she had lodged an application for human rights in the Czech courts and even to Strasbourg but it was dismissed. Even if this is accepted I do not accept that this indicates any intent to harm her or her children from the authorities.
The applicant claims that if she returns she will be imprisoned by the authorities. But she is unable to explain how or why this would occur, only providing vague and undetailed statements that this is what happens to people such as her. I asked her about her earlier statement that she would be imprisoned because she was falsely accused of stalking her own children and she said that she had never claimed this. I do not accept, on the basis of this demurral and on the basis that it appears entirely speculative, that the applicant would be imprisoned because she was falsely accused of stalking her own children. Further, I find that there is no basis to conclude that the applicant will be imprisoned or face any harm or difficulties from the authorities on return.
Any residual claims
The applicant claims she has been harmed and would be harmed on the basis of her race, nationality and her membership of a particular social group of women. She also claims that she and her sons cannot practice religion. She did concede at the hearing that no one wishes to harm her directly, but she claimed there was a sophisticated conspiracy to harm her and her children. There is simply no basis to conclude that this is true.
I accept that the applicant’s appearance may lead some people to infer that she has Jewish background as [physical features redacted]. I am willing to accept that she could be distinguished as a German born in the Czech Republic. I accept that her children are distinguishable as having a mixed European/Burmese heritage. I accept that as a single-mother after her divorce she may have found life challenging raising her children on her own.
But I do not accept that any of these factors or these factors cumulatively have led in the past nor would they in the future lead to the applicant or her children having suffered or suffering serious or significant harm.
I note that the applicant by her own claims was born into a middle class family and has attained a high level of education and was employed in both Germany where she lived for many years, and in the Czech Republic, only ceasing work to look after her children. I accept that when she returned to the Czech Republic as a single mother she was only able to find some part time employment at a [workplace]. She however had accommodation and was able to care for herself and her children.
Even if I accept that someone may have pushed her in the subway and her car may have been scratched, I find that there is no basis to conclude that these events were anything more than accidents.
I do not accept that the applicant and her sons are unable to practice their religion, her evidence on this has been vague and undetailed.
I do not accept the applicant has been forced to spend money on legal protection. It is unclear what this refers to and I note she does not appear to have had the benefit of legal advice in Australia, and she has not detailed any legal costs she was required to meet in the Czech Republic. I understand she feels aggrieved about her treatment in the Czech Republic and wishes to seek compensation from the Czech authorities and she is entirely free to do so.
I asked the applicant, if she had to return to the Czech Republic, would her husband [Mr B] go with her. She said he was not able to fly. She said that if she had to return they would be parted which would cause harm and distress to him and to her. I asked if [Mr B] was willing to give evidence as had been indicated he would and the applicant said he was in the car outside and not able to get into the room. I noted I had a statement from him as well as from friends of the couple which I could take into account and the applicant indicated this was sufficient.
On the evidence before me I accept that the applicant and [Mr B] are married and in a relationship with each other. I accept that [Mr B] has a level of dependence on the applicant and she on him. I accept that if the applicant has to return to the Czech Republic [Mr B] would be unable to return with her due to his inability to fly. I find therefore that the couple would be separated. I accept that this would cause distress to the applicant and to [Mr B]. I do not accept that this would constitute serious harm to the applicant for a s.5J reason. Further, having regard to the defined forms of significant harm, I do not accept that this would constitute significant harm because there is a lack of intentionality to the removal of the applicant from her husband to cause significant harm. I find that the applicant has sought a partner visa which is, she said, ongoing with the Department, and that processing of this could continue if she did have to return to the Czech Republic, and if satisfied, the couple would be able to be re-united. Even if it is not, and the couple are permanently separated, I do not accept that this would be for a s.5J reason and I do not accept that this would constitute significant harm because there is a lack of intentionality to the removal of the applicant from her husband to cause significant harm.
Conclusions on claims
On the basis of the above I do not accept that the applicant or her children personally experienced growing racism and bigotry. Whilst I accept her Jewish background and her German background/imputed nationality, I do not accept that she has suffered any harm on this basis other than prejudiced comments that I find do not amount to serious or significant harm as defined. I accept her children have Burmese and Jewish ancestry, but I do not accept that they have suffered any harm on this basis other than prejudiced comments that I find do not amount to serious or significant harm as defined. I do not accept that they will be forced into adoption, and whilst I accept that they have changed school and do not have access to the same cultural and sporting activities and food as previously for the reasons above I do not accept that this is harm nor intended to harm them. I specifically reject the claim that the children suffer daily beatings, mistreatment, and brain washing, nor that they cannot practice their religion or pray.
Whilst I accept that she had a poor relationship with her neighbours and I have accepted that there was a court case which her mother won, I have not accepted that this has led or would lead to the apartment being taken, being harmed by her neighbours, suffering death threats from them nor that the authorities are complicit. I have not accepted that the applicant will be falsely accused and jailed for stalking her own children or for not following the state office orders, nor that her property will be detained by the state. I do not accept the authorities will jail her or admit her to a psychiatric clinic or any other institution.
I do not accept that there is no freedom of religion in the Czech Republic, the applicant has advanced no detailed evidence or claims in relation to this.
I do not accept that the applicant will be targeted because she is shaming the Czech Republic for denouncing racism and mistreatment. I do not accept that she will be unable to get a job nor that her life will be completely destroyed.
I do not accept that the applicant or her sons have been charged with an offence nor is there any reason they would be charged with any offence.
The applicant has not established that she, or her children, have been the victims of serious harm due to their actual or imputed race, actual or imputed nationality, religion, the applicant’s membership of the particular social group women or for any other reason by her neighbours, the Czech authorities or anyone else in the Czech Republic or anywhere else. Nor has she been able to establish that she, or her children have suffered significant harm as defined.
Will the applicant suffer persecution for a s.5J reason on return to the Czech Republic?
I have accepted as above that the applicant is a Czech national who is of German Jewish descent, and that she may be recognised as of Jewish descent and of German descent in the Czech Republic. I have accepted that she has had difficulties with her neighbours, and I have accepted that there was a court case which culminated in 2015 with the applicant’s mother winning the court action. I have found that her mother continues to own and have possession of this apartment. I have accepted that the applicant’s mother has been the applicant’s children’s guardian since at least August 2016 and that the children have had to change school and have not had access to the cultural and sporting opportunities they once enjoyed and have not had access to the same foods they may have had access to. I have accepted that the applicant may have been pushed in the subway and her car scratched but I have found these were accidents. I have accepted that the applicant is married to [Mr B] and that he cannot return with her to the Czech Republic.
I find that if the applicant returns to the Czech Republic she can return to the apartment she lived in with her children and can gain access by getting a key from her mother. I find she can live here and, whilst she may once again have a poor relationship with her neighbours, I do not accept that her neighbours will do anything more than make comments which I find is not serious or significant harm.
I find that the applicant’s mother will continue to be the guardian of the applicant’s children but that the applicant will be able to see and spend time with them. I find that the applicant can work, particularly because she will not be caring for her children. I find that she will eb able to gain work, having worked in a variety of fields in Germany and the Czech Republic and having undergone further training and voluntary work in Australia.
I do not accept that the applicant will be seriously harmed by her neighbours, the authorities or anyone else in the Czech Republic for reasons of her Jewish heritage, her German heritage/imputed nationality, her [appearances], her being the mother of two children of Burmese/Jewish descent or for any other reason, nor that her children will be seriously harmed by anyone for any of these or any connected reason if she returns to the Czech Republic now or in the reasonably foreseeable future.
Is there a real risk the applicant will suffer significant harm if she is returned from Australia to the Czech Republic?
I have accepted as above that the applicant is a Czech national who is of German Jewish descent, and that she may be recognised as of Jewish descent and of German descent in the Czech Republic. I have accepted that she has had difficulties with her neighbours, and I have accepted that there was a court case which culminated in 2015 with the applicant’s mother winning the court action. I have found that her mother continues to own and have possession of this apartment. I have accepted that the applicant’s mother has been the applicant’s children’s guardian since at least August 2016 and that the children have had to change school and have not had access to the cultural and sporting opportunities they once enjoyed and have not had access to the same foods they may have had access to. I have accepted that the applicant may have been pushed in the subway and her car scratched but I have found these were accidents. I have accepted that the applicant is married to [Mr B] and that he cannot return with her to the Czech Republic.
I find that if the applicant returns to the Czech Republic she can return to the apartment she lived in with her children and can gain access by getting a key from her mother. I find she can live here and, whilst she may once again have a poor relationship with her neighbours, I do not accept that her neighbours will do anything more than make comments which I find is not significant harm.
I find that the applicant’s mother will continue to be the guardian of the applicant’s children but that the applicant will be able to see and spend time with them. I find that the applicant can work, particularly because she will not be caring for her children. I find that she will be able to gain work, having worked in a variety of fields in Germany and the Czech Republic and having undergone further training and voluntary work in Australia.
I have accepted that she and [Mr B] may suffer if they are separated but I have found this does not amount to significant harm because this suffering will not be intentionally inflicted by anyone.
I do not accept that the applicant will suffer significant harm from her neighbours, the authorities or anyone else in the Czech Republic, nor that her children will be significantly harmed by anyone if she returns to the Czech Republic now or in the reasonably foreseeable future.
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. As above, the Tribunal finds it does not have jurisdiction in relation to the second and third named applicants.
Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion 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 first named applicant a protection visa.
The Tribunal finds that it has no jurisdiction in relation to the second and third named applicants.
Sean Baker
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.
…
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 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.
…
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.
…

[2022] AATA 426

11 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction