1713029 (Refugee)

[2021] AATA 2813

1713029 (Refugee) [2021] AATA 2813 (29 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713029

COUNTRY OF REFERENCE:                   Serbia

MEMBER:Penelope Hunter

DATE:29 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 June 2021 at 2:07pm

CATCHWORDS
MIGRATION – protection visa – Serbia – fear of degrading treatment as perceived to be single or divorced mother, and concerns for well-being of children – no previous harm and no well-founded fear of persecution or real risk of significant harm – onshore partner visa application refused – applied for protection visa on advice from lawyer – possibility of applying for partner visa offshore – strong compassionate circumstances regarding Australian citizens or family unit – Australian citizen husband, children and elderly parents-in-law – economic benefit to husband’s business – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 48A, 36, 65, 417

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v GUO (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

SZRSN v MIAC [2013] FCA 751

SZSNX v MIBP [2015] FCCA 2271

WZARI v MIMAC [2013] FCA 788

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Serbia, applied for the visa on 29 November 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Act.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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–5LA, which are extracted in the attachment to this decision.

7. 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

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   INFORMATION BEFORE THE TRIBUNAL

9. The applicant was born in [Town], Serbia and is [Age] years old. [In] October 2013, she was married in Serbia. Her husband is an Australian citizen. She had lived in Serbia her entire life until she arrived in Australia [in] February 2015, on a Partner (Provisional and Migrant) Subclass 309 visa.

10. On 13 June 2016, her combined Subclass 309/BC100 visa application was refused. The applicant set out in her visa application circumstances relating to the refusal and claimed that due to giving birth to her son she did not check emails and was not aware she had to respond to Department correspondence.

11. On 29 November 2016, the Department received the application under review. In the covering letter accompanying the application the representative for the applicant set out that the application was lodged under complementary protection grounds. The applicant was a mother of a newborn Australian citizen and the wife of an Australian citizen. It was further claimed that the main purpose of the application was to get the attention of the honourable Minister.

12. In her application and supplementary statutory declaration the applicant made the following protection claims:

    i.She had made the application due to fear and risk of suffering arbitrary deprivation of her life if she returned to her country.

    ii.She feared that she may be subject to degrading treatment if she went back to her country with a small baby.

    iii.If she returned to Serbia without her husband she believed that she would experience deep depression, degrading treatment and embarrassment. She had experienced depression in the past when she was living on her own and waiting for her visa to come to Australia to be with her husband.

13. On 2 May 2017, the applicant was invited by the Department to attend an interview on 12 May 2017. She did not attend the interview. On 16 May 2017, the delegate affirmed the decision under review.

14. On 19 June 2017, the Tribunal received an application for review lodged on behalf of the applicant. In addition to the delegate’s decision record, the applicant submitted to the Tribunal copies of her identity documents, including her passport, driver licence and bank details.

15. On 29 April 2021, the applicant attended a hearing before the Tribunal via MS Teams video, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Serbian languages. The following evidence was provided at the hearing (in summary):

    i.The applicant was asked why she could not return to Serbia and she said that at the time the application was made she had just given birth to her first child, everything was fine in her marriage to her husband and there was no reason to return to Serbia. Since the application has been filed she has had two more children with her husband. A daughter born [date] and another son [on date].

    ii.The Tribunal asked the applicant if she had ever been harmed in the past in Serbia and she said that she had not. The Tribunal asked her if she thought that she would be subjected to harm if she returned to Serbia, and she responded, personally she did not. The Tribunal then asked the applicant why she could not return to Serbia and she said that all her children were born in Australia and she would like them all to live in Australia so they could be with their father.

    iii.The Tribunal again asked the applicant whether she considered that she would be subject to serious or significant harm if she returned to Serbia, and she responded that she would not but that she feared for her children. She told the Tribunal that if she returned to Serbia without her husband, people would think that she was divorced and that her children would suffer and she would not like that. She did not think that it would be good for their development.

    iv.The Tribunal explained to the applicant at the hearing the definition of a refugee under the Act, and the applicant confirmed that she generally understood this criterion. When asked by the Tribunal whether she met the criterion she responded that she really did not know, she had just been following the advice of her former migration agent when the visa application was made.

    v.The Tribunal further discussed with the applicant the complementary protection criterion. When asked by the Tribunal the applicant stated she did not believe that she would be arbitrarily deprived of her life if returned to Serbia. She also did not believe that she would subjected to torture or the death penalty.

    vi.The applicant did consider that on returning to Serbia she would suffer cruel or inhuman treatment or punishment or degrading treatment or punishment. She said this would happen because her children would be degraded by the environment and her family. Under further questioning the applicant conceded that she could explain her circumstances to her family and that they would accept she was not actually divorced. She told the Tribunal that she could not explain things to friends or the wider community because the “place was not like that”. She said that there was a lot of bullying at school between children. She claimed that it would be harmful for her to witness her children suffering this psychological abuse. In response to further questioning from the Tribunal the applicant confirmed that her children had not yet started school. Her eldest son was due to start the following year.

    vii.The applicant said she did not have any medical conditions and neither did her children. She had not sought any treatment for depression in the past or attended a doctor. The Tribunal asked her about her claims of depression in her visa application and she said that she was very sad when she was waiting for her visa to come to Australia in the past. She missed her husband and was crying a lot.

    viii.Her parents were in Serbia, as were her brother and sister. She claimed her parents were old, but if necessary she could live with them. It would not be possible with her brother and sister as they were married and had their own families. She had previously worked as [an Occupation] in Serbia.

    ix.The applicant said that her husband could not return permanently to Serbia with her as everything for him was in Australia, and he had a [specified] business. When asked whether he could work in [work sector] in Serbia the applicant said that it was a big business in Australia and he could not leave it.

    x.She claimed that she could not leave the children with her husband because they were only little. He worked long hours and often overtime. Although his parents lived with them, they were old. Her husband’s sisters were also too busy with their own families to care for her children.

    xi.The Tribunal put to the applicant that it was not aware of any country information to support her claims that children of single women were subjected to harassment or discrimination such that they would be at risk of serious or significant harm. The applicant responded that the government would not admit it but a lot suffer from the experience.

    xii.The applicant confirmed that she wished for the Tribunal to consider referring the matter to the Minister if the visa application was unsuccessful.

16. On 5 May 2021, the applicant submitted to the Tribunal copies of the birth certificates for her [children], and a letter from her husband regarding his company [Business name].

17. On 24 June 2021, the applicant appeared at a further hearing before the Tribunal by telephone. The hearing was again conducted with the assistance of an interpreter in the English and Serbian languages. At the hearing the Tribunal discussed with the applicant the following (in summary):

    i.The applicant was asked about applying for a further partner visa, she said that she was not sure about that, when her visa was previously refused she had just given birth to her son and was not in a position to leave Australia within the time requested by the Department. Her husband had obtained advice from a lawyer and they were advised that the visa application under review should be made.

    ii.The Tribunal asked the applicant whether there was any reason that she could not return to Serbia and apply for a further partner visa, and in response she said that there was no life threatening situation if she returned. The Tribunal noted that the applicant’s children were not of school age and again questioned whether the applicant could apply for a further visa offshore, in response the applicant said that she was not sure if she returned to Serbia how long she would have to wait for a further visa. She further said that her husband may come to visit them in Serbia but she would prefer if possible to apply from Australia. The Tribunal then asked the applicant if the separation arising from her return to Serbia was not indefinite and if her husband was to visit them whether these circumstances would avoid the harm she feared, and she replied yes, possibly. However, she claimed there was uncertainty as to how long the process would take. She said that one or two years would be ok, but five years was not possible.

    iii.The Tribunal put to the applicant that for her children to remain in Australia was not dependent on her visa status and that they would not be compelled to depart if her visa was refused. In reply, the applicant said that as a mother her children needed her more, and she would choose to take them back with her. She claimed her fear of harm would not be avoided by leaving her children in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The applicant has provided to the Tribunal and the Department her passport. On the basis of this information the Tribunal is satisfied that she is who she claims to be, that she is a national of Serbia by birth, and Serbia is her receiving country.

19. The applicant had not made any claims nor is there any evidence to indicate that she has a right to enter and reside in a third country. The Tribunal finds that she does not.

    Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

20. The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

21. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v GUO (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

22. The Tribunal accepts that the applicant is the mother of three children to her Australian husband, aged approximately [Ages].

23. On the evidence presented, including the admission of the applicant, the Tribunal finds that the applicant has not been the subject of any serious or significant harm in the past while living in Serbia. Upon return the applicant has not claimed that she will be harmed personally, and her further evidence was that there was no life threatening situation that would arise if she returned to Serbia. On her evidence the applicant did not know how she would meet the refugee criterion for the visa grant.

24. The applicant’s claims arise from her concern for her children and her claim is that she could suffer mental harm as their mother having to watch them experience any harassment or discriminatory conduct, bullying or ostracism while attending school in Serbia. The refugee criterion for a protection visa is concerned with harm directed towards the visa applicant as an individual. Not the claimed vicarious harm from what she believes her children may experience. The Tribunal finds that the harm the applicant claims to fear is not directed towards the applicant, and does not arise because of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J of the Act.

25. Although the applicant has not raised this as a claim, the Tribunal has further considered whether the applicant herself would suffer harm, as a consequence of being a woman perceived to be a single mother or divorced mother, if she was to return to Serbia without her husband. The Tribunal could find no country information to indicate that this particular social group experienced problems in Serbia. Even if the Tribunal accepts that the applicant may experience some bullying, such as she has identified for her children in the form of verbal comments or ostracism, it is not accepted that this would constitute serious harm to the applicant and come within the concept of persecution under Australian law, in that it does not involve serious harm as contemplated by the Act, even allowing for the non-exhaustive instances in s.5J(5) of the Act. Particularly, the harm described by the applicant, would not constitute a threat to life or liberty, serious physical harassment, significant physical ill-treatment, significant economic hardship or a denial of access to basic services. The applicant has also acknowledged that she could explain her personal circumstances to her family, and the Tribunal also considers her close friends. Although her husband may not return to Serbia indefinitely, she has said that he would visit them and it is expected that he would financially support them. The applicant also did not identify a problem with a temporary separation of several years, although less than five would be preferable. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution as a consequence of being a member of the particular social group of women perceived to be a single mother or divorced mother.

1. In her visa application the applicant identified that she would suffer deep depression, if separated from her husband upon return to Serbia. Under questioning from the Tribunal, the applicant instead identified her concerns for her children as the reason she could not return. Regarding her past experience the applicant said that she was sad and crying in the past when separated from her husband while in Serbia awaiting the processing of her visa application. The Tribunal finds on the evidence of the applicant that she has not been diagnosed or treated for depression or any other mental illness in the past, while separated from her husband.

2. The Tribunal has however considered the future effect of the separation of the applicant from her husband, in these circumstances the harm arises from the act of removal from Australia and not due to any deliberate acts of an individual or the state in Serbia against the applicant. Again, the Tribunal finds that the harm does not arise because of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J of the Act as a consequence of being separated from her husband. In relation to the issue of separation from her husband the applicant has also conceded that she could apply for a further partner visa offshore and it would be ok for herself and her children in Serbia if this took a couple of years.

3. The Tribunal accepts that the applicant does not want to disrupt her family life in Australia and return to Serbia and apply for a further visa offshore. It is also accepted that due to her previous visa refusal the applicant may have to serve a waiting period before she is able to make such a visa application under s.48A of the Act. However, it is apparent on the material before the Tribunal that the visa application under review was not lodged as a consequence of the applicant having a well-founded fear of harm upon return to Serbia, but as an alternative to remaining in Australia on a partner visa which had been refused.

4. The Tribunal has considered the claims of the applicant individually and cumulatively as set out above and it is not satisfied that she faces a real chance of persecution for the reasons claimed or any other reason.

5. 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) of the Act.

   Is the applicant a person who satisfies the complementary protection criterion?

6. 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) of the Act. This requires the Tribunal to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Serbia, there is a real risk she would suffer significant harm.

7. For the purposes of this visa criterion significant harm is exhaustively defined in s.36(2A) of the Act. When discussing these definitions with the applicant at the hearing she claimed that the harm that she feared would constitute cruel and inhuman treatment or punishment to her children or degrading treatment or punishment to her children. Again the applicant has not claimed that the conduct would be directed towards her, rather her children at school. The definitions of these types of serious harm are further set out in s.5(1) of the Act as set out in the attachment to this decision. These definitions set out that the acts are required to be intentionally inflicted on the applicant or intended to cause the applicant extreme humiliation which is unreasonable. On the basis of her evidence there is a lack of any intention to cause harm directly or even indirectly to the applicant from the conduct that she claims her children will experience at school. The Tribunal therefore does not accept that the applicant would experience cruel or inhuman treatment or punishment or degrading treatment or punishment as a consequence of any bullying or harassment directed at her children. For completeness the Tribunal also finds that the applicant would likewise not be arbitrarily deprived of her life, have the death penalty carried out or be subject to torture within the meaning of the Act for this reason. Furthermore, the applicant has also acknowledged that her children will not be compelled to return to Serbia if the visa application is refused but she would choose to have them return with her. As such the concerns that the applicant has for her children in Serbia, are not a necessary consequence of the applicant being removed from Australia to her receiving country.

8. The Tribunal has considered any implied claims that may arise from the applicant being perceived as a single mother or a divorced mother, and whether she would experience significant harm for this reason. As set out above the Tribunal has been unable to locate any country information, and the applicant has not presented any material, to indicate that single mothers or divorced women do experience any harm in Serbia for this reason. The Tribunal is also satisfied that the applicant would not be without support if she were to return to Serbia. She has her parents with whom she could live, and her husband would continue to support her and their children. Even if the applicant were to experience some stigma, the Tribunal does not accept that this would be greater than verbal comments or ostracism. The Tribunal is not satisfied that any stigma would amount to significant harm. That is, the Tribunal is not satisfied that the stigma would lead to the arbitrary deprivation of the applicant’s life, the death penalty being carried out, that she would be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

9. Finally the Tribunal has considered the risk of harm to the applicant if removed from Australia to Serbia on the basis that she would be separated, at least temporarily, from her husband. On this issue the Tribunal has also had regard to the authority in the matter of SZRSN v MIAC, where it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court found that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[1] Australia’s obligations to afford protection referred to in s.36(2)(aa) arise from the harm faced by a non-citizen in the receiving country, rather than the country in which protection is sought.[2] As the harm under s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself. Accordingly the Tribunal finds that s.36(2)(aa) is not engaged in this case, a consequence of the applicant being separated from her husband, by the act of being removed from Australia to Serbia.

   [1] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance, SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm

   [2] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62]

10. The Tribunal is not satisfied that the applicant would face a real risk of significant harm if removed from Australia to Serbia for any other reason.

11. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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 any of the criteria in s.36(2).

    Ministerial Intervention

13. At the time that the application was made it was identified that the purpose of the application was to seek Ministerial Intervention pursuant to s.417 of the Act. The applicant was questioned about this at the hearing and claimed that at the time they were following the directions of their migration agent. However, in the event of an unsuccessful decision she had asked the Tribunal to consider referring the matter.

14. This section confers upon the Minister a non-compellable personal discretion to grant a person a visa after their review application with the Tribunal is unsuccessful. The current guidelines for Ministerial Intervention are set out on the Department’s website.[3]

    [3] Ministerial intervention (homeaffairs.gov.au)

15. The guidelines provide a non-exhaustive example of the types of unique and exceptional circumstances that can be brought to the attention of the Minister, and in summary include the following:

    ·strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;

    ·compassionate circumstances regarding an applicant’s age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship;

    ·exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia;

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or

    ·the application of relevant legislation leads to unfair or unreasonable results in an applicant’s case; and/or

    ·where an applicant cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside their control.

16. The applicant’s case does have some strong compassionate factors. It is accepted that together with her Australian citizen husband she is the parent of three Australian-born children, aged approximately [Ages]. If she was to return to Serbia with three young children while awaiting a further visa application this would cause hardship to her Australian family unit which includes her children and Australian citizen husband who would be separated for a considerable time.

17. Additionally, the applicant provided evidence to the Tribunal that she and her husband currently live with her husband’s parents. They are elderly and are supported socially and economically by the applicant and her husband. This support for her Australian citizen in-laws would diminish or be withdrawn if the applicant was not present in Australia, or if her husband had to financially support the applicant and children for an extended period in Serbia, and would cause additional hardship to her extended Australian citizen family.

18. The Tribunal has also considered information provided by the applicant regarding her husband’s business, together with the letter of submission provided post hearing. The business of the applicant’s husband is [Business name]. The business is a [company] engaged in [specified projects]. The information provided to the Tribunal is that this business currently has a management staff of over 12 people and approximately 80 [workers], most of whom are Australian citizens or permanent residents. Disruption of the business due to the applicant’s husband having to take time to visit and support his family in Serbia would have a detrimental effect on the ability of this Australian business to maintain and grow its current level of [specified] projects and potentially its employees. It appears to the Tribunal that there would be an economic benefit resulting from the applicant being permitted to stay in Australia.

19. Therefore the Tribunal considers that it is appropriate to bring this matter to the attention of the Minister, particularly with regard to the circumstances of the applicant’s Australian-born children, and the consequences for her Australian family unit, for consideration as to whether to permit the applicant to apply for a further partner visa onshore.

20. The Ministerial Guidelines make it clear that requests that do not meet the guidelines will be finalised by the Department and not referred to the Minister. The Tribunal will also forward to the Minister evidence of the applicant’s children and her husband’s business. It is also open to the applicant to provide further information about her circumstances and why she considers them to be unique or exceptional to the Minister.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Penelope Hunter
    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.

    …

    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.

    …

    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.

    …

    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.

    …