1714613 (Refugee)

[2017] AATA 2202

1714613 (Refugee) [2017] AATA 2202 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714613

COUNTRY OF REFERENCE:                  Italy

MEMBER:C. Packer

DATE:30 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2017 at 5:31pm

CATCHWORDS
Refugee – Protection visa – Cancellation – Italy – Federal Court and Full Federal Court Dismissal – Ethnicity – Calabrian – Social group – Target of Ndrangheta retribution for unpaid debt – Vulnerable person with cognitive impairment – Family ties with Calabria – Credibility Issues

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 417, 424AA, 438, 501(3A)
Migration Regulations 1994, 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

1. The applicant is a man aged [age], born in Italy and a citizen of Italy.

2. The applicant arrived in Australia [in] July 1990, as a holder of a [visa], together with his parents and siblings. His permanent residence status, from [September] 1994, was by way of a Transitional (Permanent) [visa], the terms of which allow the holder to remain in Australian indefinitely.

3. [In] December 2014 the applicant’s [visa] was cancelled under section 501(3A) of the Migration Act. The applicant’s subsequent appeal was dismissed by the Federal Court [in] October 2016 and by the Full Federal Court [in] April 2017.

4. [In] June 2017 the applicant applied for a Protection (Class XA) visa.

5. The applicant did not attend an interview with a delegate of the Minister for Immigration.

6. [In] July 2017 the delegate refused the application under s.65 of the Migration Act.

7. On 7 July 2017 the applicant applied for review of the delegate’s decision.

8. On 23 August 2017 the applicant attended a Tribunal hearing by video link with [a detention centre]. His representative was present at the hearing.

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

10. The applicant’s narrative is centred on his fear of being targeted and killed by the ‘Ndrangheta should he return to Italy. He claims the ‘Ndrangheta would seek to harm him because of [a] family debt owed to the ‘Ndrangheta in Calabria several decades ago. However, I do not find the evidence about the family’s fear of the ‘Ndrangheta to be persuasive. After consideration of the claims and evidence, I do not accept the applicant’s narrative about the long-standing enmity of the ‘Ndrangheta and I do not accept that in Italy the applicant will come to the adverse attention of, or be targeted by, the ‘Ndrangheta or similar group or their agents. While I accept the applicant has psychological problems and cognitive impairments I do not accept that these will attract the adverse attention of people in Calabria Italy such that they would seek to harm him or will lead him to be persecuted. My assessment follows.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

11. The applicant’s protection visa application provided some basic background information. He claims he was born in Reggio Calabria and is an Italian citizen at birth. He belongs to the Calabrian ethnic group. He has never married. He is Christian. He has his father and mother [and siblings] in Australia. He departed Italy legally on an Italian passport (details unknown) and arrived in Australia [in] July 1990. In Australia he indicated periods of work and unemployment. He showed he had criminal convictions in Australia including for [a criminal offence], and had a residence visa cancelled on character grounds. He owed money to the Commonwealth for the costs of an unsuccessful Court action and indicated he would enter into an agreement to pay this debt. At the hearing the applicant said his parents and siblings remain in Australia and he has extended family here.

    Summary of claims

12. The applicant claims to fear persecution in Italy from the criminal ‘Ndrangheta. His key claims as summarised are:

    • His family originated from Reggio Calabria, which is a stronghold of the ‘Ndrangheta (the Calabrian mafia).
    • His family fled to Australia in 1990 because his [grandfather] was the subject of ‘Ndrangheta retribution over an unpaid debt.
    • Several of his father’s close relatives had been killed by the ‘Ndrangheta, and he believes the mother’s side of the family had been threatened.
    • The [applicant’s] family had been and continues to be a target for ‘Ndrangheta retribution and so in Italy he will be killed because he is in the [applicant’s] family.
    • He would not get police protection as he is not rich or influential.
    • He is particularly vulnerable as he has major mental health conditions. Without the day-to-day support of his mother and family he will not be able to survive in Italy. He fears he will be unable to access Italian social security and medical/mental health services.

    Evidence

13. The evidence before the Tribunal includes the following material:

    ·The applicant’s Protection visa application form lodged [in] June 2017, which includes a statement dated [in] June 2017 giving reasons for seeking protection in Australia

    ·[Australian] Driver Licence

    ·The Protection visa decision record (‘delegate’s decision’) dated [in] July 2017, which is the subject of this review

    ·The application for review, which has attached to it a copy of the delegate’s decision

    ·Neuropsychological report dated [in] October 2017

14. Country information concerning the ‘Ndrangheta in Calabria [and Australia] includes:

    ·The Conversation articles, Meet the ’Ndrangheta- and why it’s time to bust some myths about the Calabrian mafia, 5 February 2016, [ and Why the Calabrian mafia in Australia is so little recognised and understood, 14 January 2016, [ article, Silence on the streets of Calabria's mafia capital as deadly feud crosses borders, 17 August 2007, [ Age article, How mafia fugitive Antonio Vottari slipped into Australia and disappeared, 16 April 2016, [ article, Mafia bust in Italy reveals horrifying extent of family ties running deep in Australia, 2 February 2016, [ deleted].

    ·Daily Mail article, How the Calabrian mafia came to Australia in the 1920s and brought murder and a billion dollar drug trade which is now controlled by 31 families across the nation, 16 March 2016, [ article, Mafia deeply entrenched in Australia, 15 March 2010, [ at revolvy.com, Second 'Ndrangheta war, [ entry, 'Ndrangheta, [ (Wikipedia treated with caution, however, the Wikipedia entry shows the general availability of information concerning the ‘Ndrangheta in Australia)

15. The applicant was invited to appear before the Tribunal on 23 August 2017. However, the day before the scheduled hearing the representatives requested a postponement as a neuropsychological assessment of the applicant and subsequent report might take more than eight weeks to obtain. I carefully considered the postponement request but decided the hearing would proceed as scheduled, because the issue of providing additional time for reports to be provided could be discussed at the hearing. 

16. The representatives indicated that the applicant had asked that he attend the hearing in person. I carefully considered this request but decided the hearing would proceed by video link. This is because I considered the applicant’s medical and mental conditions as described were ostensibly such that the applicant would have the best opportunity to give evidence if he remained in the familiar environment at the [detention centre] where he also had reasonable access to medical assistance if needed. I had noted there were no documents I would need to show him during the hearing, and the representative, witnesses and interpreter were able to attend at the Tribunal premises. The video link with [the detention centre] was a good link with clear and uninterrupted reception.

17. The applicant appeared before the Tribunal by video link to give evidence and present arguments, on 23 August 2017. In documents provided before the hearing the applicant indicated he had ‘mental illnesses’ and that ‘I forget things because of the illnesses and the medication’. The representative had stated the applicant’s mental illnesses seemed to be deteriorating. I therefore treated the applicant as a vulnerable witness. At the start of the hearing I asked whether he was able to talk about his story, and he stated he was. During the hearing he appeared to focus on what was asked and on the whole he gave coherent answers and explanations. When I put country information to him he appeared to take in what I had said and then gave relevant comments. At times he said he did not know details of some past events but gave reasons for his lack of knowledge. When I asked, he said he understood the proceedings and what was being said and asked of him. I assess that he was competent to give evidence at the hearing and he had a full opportunity to put forward his story and arguments.

18. At the hearing a number of people came as observers. I asked that they wait outside due to the private nature of the refugee hearing. Two witnesses gave evidence. The applicant’s father gave evidence in Italian with the assistance of an accredited interpreter in the Italian and English languages and he had no difficulties with the interpreter, although at times the father’s evidence was vague. The applicant’s mother gave evidence in English, and she often gave impassioned pleas for her son to be given another chance as he could not be cared for away from the strong family support he had here.

19. The Tribunal provided several extensions of time after the hearing for medical reports and submissions to be prepared and provided: the last to close of business 20 October 2017. A Neuropsychological report dated [October] 2017 was provided to the Tribunal on 23 October 2017.

20. The Department had not issued a certificate under s438 of the Act.

    Assessment of claims: credibility

21. The delegate’s decision shows that the applicant had been a permanent resident of Australia until his [visa] was cancelled [in] December 2014. All the available evidence, including the applicant’s oral evidence and the evidence of his parents, supports his claim to be an Italian national. Italy is therefore the receiving country for the purpose of assessing the applicant’s protection claims, and when assessing his claims against the complementary protection grounds.

22. Having considered the material before the Tribunal including the evidence of the applicant and his parents given at the hearing, I accept that he has the claimed identity: [Applicant’s name] born [in date]. I accept he was born and raised in the Reggio region of Calabria in the south of Italy, before entering Australia [in] July 1990 at age [age], together with his parents and siblings. I accept his parents originate from the Reggio region of Calabria. I accept his parents, brothers and sisters and extended family all reside in Australia.

    His mental health

23. The applicant’s mental health is an issue in his protection claims. I have therefore considered his mental health condition now and in the reasonably foreseeable future. The applicant provided a neuropsychological report by [a doctor] dated [in] October 2017. The key features of this report are:

    ·The applicant had been referred for assessment in the context of his upcoming Tribunal hearing. The applicant was interviewed [in] October 2017, and the applicant’s mother and sister interviewed by phone. The expert had also obtained background information from other past psychiatric reports and hospital records.

    ·The expert summarised the applicant’s history: he had a history of mental health issues and alcohol misuse; he had convictions for a number of criminal offences; his permanent visa was cancelled; after several appeals he had been in immigration detention [at several detention centres] for some three years; he faced deportation to Italy; he apparently does not speak Italian; he would have very limited family/social supports in Italy.

    ·Previous reports detail his history of [Condition 1], characterised by [symptoms], with a likely overlapping diagnosis of [Condition 2], as well as a history of substance abuse. He had been admitted to the [City 1] clinic [in] October 2016 and commenced treatment with [medication] and ceased other [medication], apparently resulting in a significant improvement in his mental state.

    ·He currently sees a psychiatrist monthly and recently commenced weekly sessions with a psychologist or counsellor. His current medication [included several different medications].

    ·He had completed Year [grade] schooling and half a [course]. He had worked as [an occupation]; with his brother-in-law’s [company]; and last worked in a [factory] in 2007. He could not maintain this employment as he had begun gambling and drinking heavily.

    ·He reported some difficulty concentrating and that his short-term memory was “no good”. At present he does his own laundry and cleans his room. He had largely lived with his mother and she said she provided a significant degree of practical support. His sister said he had been able to complete basic self-care and when at his best manage his finances, but other domestic tasks had mainly been performed for him by others.

    ·He presented as cooperative, pleasant and polite. He had a number of self-inflicted superficial [injuries] and damage to his [other parts of body].

    ·He was administered 10 tests and the test results were summarised. “The assessment revealed that his overall intellectual functioning fell within the ‘Extremely Low’ or ‘Intellectually Disabled’ range, in other words below the 1st percentile for his age group. Across most cognitive domains - including information processing (basic attention and speed of processing), new learning and memory, and executive skills (response inhibition, self-monitoring, idea generation, error correction, planning and organisation) - his performances fell at this level. Relative strengths included visual constructional skills and visual problem-solving, vocabulary, general knowledge, orientation, and recognition memory (recognising information that had been presented earlier).”

24. The expert gave an overall assessment:

    Overall the current assessment revealed that [the applicant] has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in a familiar community (i.e. [City 1], Australia), let alone in an unfamiliar foreign country. This is in addition to his well-documented history of [Condition 1], for which he would be expected to need regular and ongoing psychiatric treatment and monitoring. (I note that even when receiving regular psychiatric treatment and consistently taking medication, [the applicant] has continued to experience some residual psychotic symptoms).

25. The expert listed some potential implications of the applicant’s cognitive profile:

    • [The applicant] has a history of significant learning difficulties and of poor literacy in English, his primary language. He speaks little to no Italian and would likely have extreme difficulty learning a second language to any useful degree.
    • Based on the current assessment, and supported by his personal history, [the applicant] exhibits a concrete and unsophisticated approach to reasoning and problem-solving. In new situations, he would be likely to have great difficulty thinking flexibly and generating solutions to problems. He would be at significant risk of reverting to previously-used, albeit ineffective, means of coping with challenging situations in future (i.e. alcohol use, gambling, and criminal behaviour).
    • To date, [the applicant] appears to have required support from others (mainly informal support from his [mother]) to achieve some degree of independent functioning in the community. He appears to have functioned at his best in the supported, structured environment of immigration detention. It would be expected that he will continue to need external support in future to manage tasks such as attending appointments, administering medication, and managing complex activities of daily living (e.g. paying bills).
    • [The applicant] will have difficulty learning new information and remembering it later on. He will need information repeated, written down (simply), and to be given reminders and prompts.
    • Due to executive functioning difficulties, he would be expected to have trouble planning, monitoring and adapting his behaviour, identifying and correcting errors, and inhibiting responses (impulse control).
    • [The applicant] may be slow to process information, have a limited capacity to attend to more than a few pieces of information or to focus on more than one task at once, and may become easily overwhelmed.

26. The expert listed recommendations for treatment:

    ·Repeat neuropsychological assessment would be recommended when [the applicant] is not experiencing acute psychosocial stressors (i.e. potential imminent deportation), in order to gain a picture of his best possible cognitive functioning.

    ·Occupational Therapy (OT) assessment within his environment would provide a fuller picture of [the applicant’s] level of functioning and ability to undertake various daily tasks, and his day-to-day support needs.

    ·[The applicant’s] report of experiencing at least two “episodes” of [symptoms], along with his history of [injury], would raise concern about a possible [new medical condition]. Should he experience a similar episode in future, opinion from a neurologist would be recommended.

27. In sum, I have given appropriate weight to the expert’s report. Based on the report and the evidence of the applicant and his mother I accept that the applicant has major psychological problems. I accept that he has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in an unfamiliar community in Calabria Italy. I accept that he will need regular psychiatric treatment and medication ostensibly for the rest of his life.

28. The expert stated that the applicant has a history of significant learning difficulties and of poor literacy in his primary language of English, and he speaks little to no Italian and would likely have extreme difficulty learning a second language to any useful degree. Nonetheless, the applicant departed Italy at age [age] years and [number] months and he would have spoken and understood Italian at that time. At the hearing the father said the applicant speaks very little Italian and doesn’t understand the father very well. But as I put to the applicant, in light of his father’s poor English he would have conversed with the father in Italian for many years. The applicant then responded that he understands Italian but cannot speak more than a few words- he added that he can say words here and there but cannot make conversation. In sum, based on the applicant’s evidence I consider that he understands spoken Italian and can also speak some Italian but cannot speak conversationally in Italian. I do not accept that he would be isolated in Calabria with no Italian language skills.

1. On his return to Calabria he will be unemployed and with scant prospects of getting work when he arrives. At the hearing he said he did not know if he could get benefits and then that he had been told he will be eligible for five months unemployment benefits. I pointed out that it seems he would be able to access Italian social security, and my comment encompassed information from the Department of Social Services about the Social Security Agreement between Australia and Italy[1]. The social security payments covered by the Agreement in Italy are said to include: old age pension; seniority pension; anticipated pension; invalidity allowance; inability pension; privileged invalidity allowance; privileged inability pension; invalidity attendance allowance; survivors' pensions; family allowance for dependants of pensioners; and unemployment allowance. Based on the material before the Tribunal I do not accept that the applicant who has been away from Italy since 1990 will be excluded from accessing Italian government assistance and services.

   [1] [>

   On his return to Calabria he will require regular psychiatric treatment and medication for the rest of his life. And as I discussed at the hearing, such mental health treatment and medication is available in Italy. I indicated that my internet search and a variety of sources[2] had shown that Italy’s national health service named the Servizio Sanitario Nazionale (SSN) was established in 1978, with the reported aim to create an efficient and uniform health system covering the entire population, irrespective of income or contributions, employment or pre-existing health conditions, and where a person need only be a resident in Italy or a citizen of the European Union to receive the same health benefits as an Italian. While there is also private health care, it seems that as an Italian national he would be eligible to get health services through the SSN. I also indicated there is readily available psychiatric assistance in Italy as mental health care in Italy is delivered by the Mental Health departments and can be accessed directly by anyone or through a doctor’s referral. I indicated that the sources showed that in Italy- as with any health system- it can vary between regions, but reports said the Italian health system is well regarded internationally. The applicant merely responded that he hopes it is true as he needs help.

   [2] [Source deleted].

2. The Italian health and mental health system is national, comprehensive and although it is considered to have some problems is well regarded. Based on the material before the Tribunal, the applicant who is an Italian national who has not lived in Italy since 1990 will be able to access health and mental health services and medication in Calabria and Italy. Despite not having lived in Italy since 1990 he will have the same access to Italian government services including mental health services as other Italian nationals. As well, the applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that the applicant’s cognitive impairments and psychological problems and treatment will attract the adverse attention of the Italian authorities or of the Calabrian community such that they would seek to persecute him.

   His fear of the ‘Ndrangheta in Italy

3. The applicant’s narrative is centred on his fear of being targeted and killed in Italy by the ‘Ndrangheta because of a [family] debt owed to the ‘Ndrangheta in Calabria several decades ago. However, the applicant has no personal experience of any of the claimed occurrences in Calabria because he was only age [age] when he was brought to Australia and he says he has no real memories of Calabria. At the hearing he explained he was relating the story that his parents had told him, although he provided scant details beyond talking of a debt to the mafia and listing family members he said had been murdered.

4. At the hearing the applicant had no comments when I pointed out I had concerns with his evidence that he feared the ‘Ndrangheta and their retribution but had never sought information about them including whether they were present in Australia and had taken no steps at all to ensure his safety. But at the end of the hearing the applicant said he had only been told the story about the ‘Ndrangheta when he was detained about three years before- ostensibly at the time his Australian residence was cancelled. He speculated that the parents had not told him before as they did not want to scare him and he might have misunderstood. The representative submitted that in that family the parents would have kept things from the children and there had been a real issue of capacity to understand things. However, if as claimed the parents had fled the murderous enmity of the ‘Ndrangheta and had a great fear of their retribution and believed that every family member was a target, it is difficult to accept the parents kept the applicant in the dark about all of this throughout his life until recent years. Indeed, in his narrative several close relatives had been murdered and it is difficult to accept that had this occurred, the murders and/or the circumstances surrounding the murders had not been fully discussed with the applicant until recent years.

5. As well, in the applicant’s narrative he had had the past three years in which to find out about his father’s life in Calabria and the full reasons for the family’s departure. But when asked he said he only knew about the ‘money stuff’ and only now was he keen to ask the parents about everything. The applicant’s vague evidence and claimed lack of knowledge about the happenings in Calabria raise concerns with his story and credibility as a witness.

6. At the hearing the applicant told a basic story of his father borrowing money from the ‘Ndrangheta and when it was not paid back they killed several relatives in retribution and this caused the parents to come to Australia. But at the hearing while the applicant’s father told a similar story of gaining the ‘Ndrangheta’s great enmity, the father said this arose due to his father and brothers failing to repay money they had borrowed. The father confirmed he had not personally borrowed any money. When I put this inconsistency to the applicant pursuant to the s424AA procedure he responded that it may or may not be a fact that his father had owed money to the ‘Ndrangheta but he thought his father had the debt and he might have misunderstood when he had been told. I have taken the applicant’s mental health issues into account when considering his evidence. Nonetheless, the claim that the enmity of the ‘Ndrangheta arose because of an unpaid borrowing is the central part of the story, and who had actually borrowed the money from a criminal organisation is a significant and memorable element of that central part of the story. The differing accounts of the applicant and his father about such a significant and memorable element of the story lead me to have strong concerns with the applicant’s narrative and evidence.

7. The evidence of the applicant’s father and mother at the hearing was crucial to a full understanding of the applicant’s narrative as they claimed to have been aware of and personally affected by the claimed occurrences in Calabria before the family travelled to Australia. At the hearing the evidence of the father and mother was that the enmity of the ‘Ndrangheta towards the entire [applicant’s] family was murderous with target killings of a number of family members. The applicant said he had been told about these murders. Their evidence was also that despite these murders, the murderous enmity of the ‘Ndrangheta towards any [applicant’s] family member continued unabated to the present, and should the applicant return he would be immediately target killed anywhere he went in Italy. In the applicant’s narrative, the parents’ family fled to [City 1] to get away from the ‘Ndrangheta. At the hearing the applicant’s mother explained that she had married in 1975 in Australia but her husband (the applicant’s father) disliked living in Australia and so they returned to Calabria, and when, as she said, things got dangerous there she was able to get her mother in Australia to sponsor the family back.

8. However, in light of this narrative of fleeing the murderous ‘Ndrangheta whose vendetta against the [applicant’s] family had not ended when they departed Italy in 1990, the family’s ostensible lack of interest in the ‘Ndrangheta once they arrived in Australia is not credible. The applicant’s father did not know what had happened to the relatives he left behind in Calabria as he said he had not kept in touch with any and now does not remember them. The father said he feared the ‘Ndrangheta and he believed they would try to search for and harm him, but he also said he had not taken any actions to protect himself from the ‘Ndrangheta once he arrived here. In Australia he said he did not seek the protection of the authorities, and he said he had not tried to inform himself as to whether the ‘Ndrangheta were in [City 1] and might seek to harm him here. When I pointed out to the father that reports show the ‘Ndrangheta were in Australia and [City 1] and asked whether that worried him he stated he did not know. The applicant’s mother said that she had not feared the ‘Ndrangheta in [City 1] and indeed, did not know anything about it. She said she had not tried to inform herself as to whether the ‘Ndrangheta were in Australia, and added they had found out the ‘Ndrangheta had murdered her husband’s father, brother, niece and whoever but why should she ask about them. In sum, the father and mother’s claimed lack of interest in the ‘Ndrangheta in Australia and in particular their lack of any attempts to inform themselves as to whether the ‘Ndrangheta were in Australia is not consistent with and does not support their claims to have had a very great fear of ‘Ndrangheta retribution against the whole family. It is not consistent with the father’s claim that he believed they would try to search for and harm him. Nor does the father’s illiteracy and later inability to use a computer explain his lack of any efforts to inform himself and the family about whether the ‘Ndrangheta were in [City 1] and might seek to harm him and family members here.

9. At the hearing I put this information to the applicant pursuant to the s424AA procedure, and indicated it might lead me to disbelieve the claim that his family and parents had a very great worry and concern about the enmity of the ‘Ndrangheta because of a debt, and might lead me to conclude that some or all of his claims are untruthful. The applicant responded that he was not sure what has happened and would speak to his parents about all of this. He added that he had not known that the mafia operated in Australia and he hoped they did not come and find the family. 

10. At the hearing, not only did the father and mother’s lack of any attempts to inform themselves as to whether the ‘Ndrangheta were in Australia raise strong concerns with their evidence, but the father and mother’s lack of knowledge or even suspicion of the ‘Ndrangheta being present in Australia is difficult to accept. The father’s evidence showed that when he was living in Calabria he was well aware of the ‘Ndrangheta. Indeed, when I asked whether his family had any other connection to the ‘Ndrangheta he replied yes as San Luca was very close, and country information widely available shows that San Luca has been described as the cradle of the 'Ndrangheta and its epicentre. Also, many media reports[3] over the years discuss how the ‘Ndrangheta has been present in Australia since the early twentieth century and well-established in [City 1] through settled Calabrian families. In this light, the father’s lack of knowledge or even suspicion of the ‘Ndrangheta being present in Australia is not credible. The mother’s evidence showed that when she was living in Calabria she was well aware of the ‘Ndrangheta. Her evidence then, that her husband’s grandfather had not known that the ‘Ndrangheta would kill someone over money and an unpaid debt was surprising. In light of the mother’s knowledge of the ‘Ndrangheta in Calabria and the reports about the well-established ‘Ndrangheta in [City 1] through settled Calabrian families, her lack of knowledge or even suspicion of the ‘Ndrangheta being present in Australia is similarly not credible.

    Conclusion - credibility

    [3] See reports cited in Evidence

11. The applicant’s narrative about the long-standing enmity of the ‘Ndrangheta is, he says, solely based on what his parents have told him. But it is difficult to accept the parents kept the applicant in the dark about all of this throughout his life until recent years. Regardless, he has had several years in which to gather from his parents and family full details of the family’s circumstances and happenings in Calabria and so his vague evidence and claimed scant knowledge about the happenings in Calabria, together with his different account of who had borrowed the money, raise strong concerns with his narrative and evidence. The applicant’s evidence about the long-standing enmity of the ‘Ndrangheta and how it came about is not convincing.

12. Then when I spoke to the father and mother, while they did not say their family was in an ‘Ndrangheta clan or had had any involvement in criminal activity in Calabria, their evidence nonetheless was that family members had become involved in the dangerous practice of borrowing money from ‘Ndrangheta and their evidence showed that when living in Calabria they were well aware of the ‘Ndrangheta. Given their apparent awareness of the ‘Ndrangheta in Calabria and their claims that their family had actually experienced the murderous enmity of the ‘Ndrangheta, their claimed lack of concern about the ‘Ndrangheta when they had returned to Australia is not believable. As I discussed with the applicant, widely available media reporting over the years shows the ‘Ndrangheta have had a very strong presence in Australia and [City 1] for many decades. They have strong links back to Calabria. As I said to the father and mother the ‘Ndrangheta are present in [City 1]. In this light, the father and mother’s lack of knowledge or even suspicion of the ‘Ndrangheta being present in Australia is not believable. In particular, the father and mother’s lack of any attempts to inform themselves as to whether the ‘Ndrangheta were in Australia, and lack of warning given to the applicant, is not consistent with and does not support their claims to have had a very great fear of ‘Ndrangheta retribution against the whole family. Nor is it consistent with the father’s claim that he believed they would try to search for and harm him. I find the father and mother are not credible witnesses and I reject their evidence about the claimed occurrences in Calabria and about the long-standing enmity of the ‘Ndrangheta. I do not accept that the family members had been murdered in Calabria over unpaid borrowings as claimed. Nor do I accept their related evidence that they do not know what relatives they now have in Calabria as I do not accept that they left Calabria in the circumstances they have claimed.

13. In light of the foregoing I disbelieve the applicant’s narrative about fearing the ‘Ndrangheta in Italy. I do not accept that the family fled Italy in 1990 because they feared ‘Ndrangheta retribution, or that close relatives had been murdered for the reason claimed, or that the applicant will be target killed in Italy because he is an adult son in the [applicant’s] family, or that he will have any need to seek police protection in Italy.

14. Having considered the claims and evidence, I accept his claims that:

    • His family originated from Reggio Calabria, which is a stronghold of the ‘Ndrangheta.
    • His family came to Australia in 1990 through the maternal grandmother’s sponsorship.
    • He is particularly vulnerable as he has major mental health conditions and without the day-to-day support of his mother and family he will have significant difficulties in living in Calabria Italy.

15. Having considered the claims and evidence, I do not accept his claims that:

    • His family fled to Australia in 1990 because [the] grandfather was the subject of ‘Ndrangheta retribution over an unpaid debt.
    • Several of his father’s close relatives had been killed by the ‘Ndrangheta, and he believes the mother’s side of the family had been threatened.
    • The [applicant’s] family had been and continues to be a target for ‘Ndrangheta retribution and so in Italy he will be killed because he is in the [applicant’s] family.
    • He would not get police protection as he is not rich or influential.
    • Without the day-to-day support of his mother and family he will not be able to survive in Italy.
    • He will be unable to access Italian social security and medical/mental health services.

    Conclusion

16. Having considered the claims and evidence I find that the applicant is an Italian national. He had been a permanent resident of Australia until his [visa] was cancelled [in] December 2014. He is a mature, single man. He comes from a poor family in [City 1] and his parents, siblings and other relatives all live in [City 1]. He has extended family in Calabria but no details about them are before the Tribunal.

17. As I discussed at the hearing, he is an Italian national who last departed Italy legally and so the way he left Italy will not cause him difficulties on his return. He would have travelled on an Italian passport and while he does not have a passport now, as an Italian born national he will reasonably be able to apply for and get an Italian passport without great difficulty.

18. In light of the foregoing credibility findings I accept that the applicant has major psychological problems. I accept he has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in an unfamiliar community in Calabria Italy. But I do not accept that he would be isolated in Calabria with no Italian language skills as his evidence is that he understands spoken Italian and can also speak some Italian but cannot speak conversationally. I accept he will need regular psychiatric treatment, monitoring and medication for the rest of his life. But based on the material before the Tribunal I find that Italy has a well-developed social security system and a health and mental health system and despite not having lived in Italy since 1990 he will have access to Italian government services including mental health services and medicine.

19. The applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that the applicant’s criminal record in Australia will lead him to be persecuted in Calabria Italy. As well, the applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that the applicant’s cognitive impairments, limited Italian language skills, and psychological problems and treatment will attract the adverse attention of the Italian authorities or of the Calabrian community such that they would seek to persecute him. Indeed, as I put to the applicant, Italy has an effective mental health service that he will be able to access. I am not satisfied there is a real chance that his future condition will attract persecution that involves systematic and discriminatory conduct and involves serious harm- such as a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist. In my view, the applicant’s personal circumstances that include his cognitive impairments and mental health issues now and in the reasonably foreseeable future do not invoke Australia’s protection obligations.

1. In light of the foregoing credibility findings I do not accept that in Italy the applicant will come to the adverse attention of, or be targeted by, the ‘Ndrangheta or similar group or their agents. He has not claimed despite ample opportunity to fear harm in Italy or in his home area from the Italian authorities, community or any other group or person. I do not accept that in Calabria or anywhere in Italy in the reasonably foreseeable future there is a real chance he will suffer serious harm for reason of membership of a particular social group of the [applicant’s] family. I do not accept that in Calabria or anywhere in Italy in the reasonably foreseeable future there is a real chance he will suffer serious harm for any reason he has claimed, or for reason of his past conduct in Australia, or identity as a Calabrian man returning from Australia after a long residence, or for reason of his cognitive impairments and psychological problems and treatment- either when these things are considered individually or cumulatively.

2. In light of the foregoing findings I have not gone on to consider whether the applicant could live in another area in Italy or live in another country in the European community.

   Refugee criterion

3. In light of the above assessment, the Tribunal finds that in Italy the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Italy the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

4. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Complementary protection

5. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Italy, there is a real risk that he will suffer significant harm.

6. I accept the applicant will need to re-adjust to living in Italy- a country he has not seen since a child. At the hearing the father said he has relatives in Calabria but did not remember them and had no contact at all, and the mother said she did not know if she had relatives in Italy. However, as discussed in my foregoing credibility findings I do not accept either that the family members had been murdered in Calabria over unpaid borrowings as claimed, or that the applicant and his parents do not know what relatives they now have in Calabria as I do not accept that the family fled Calabria in the circumstances claimed. In light of the father’s evidence that there were relatives in Calabria when he departed and my findings that close family members had not been murdered as claimed, I consider there were family members in Calabria when the applicant departed for Australia and it is reasonable to consider there continue to be family members in Calabria. The applicant and his parents’ evidence show that close ties bind their family in Australia and in the past had bound at least [one] side of the family in Calabria. I do not accept then, that the applicant will be without any family if he returns to Calabria.

7. I accept he has psychological problems and significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to be able to manage the demands of living in an unfamiliar community in Calabria Italy. But while his scant Italian will cause him difficulties in day-to-day living, as I discussed above I do not accept that he would be isolated in Calabria with no Italian language skills. I acknowledge that the applicant has ongoing family support available in Australia and in particular the day-to-day care provided by his mother, and he will not have that ongoing support in Calabria. But I note that the expert reports that while living away from the mother the applicant has said he can do things for himself such as doing his own laundry and cleaning his room, and in the past he had lived away from home with a girlfriend for six months. I acknowledge he will have significant difficulties getting work in Calabria, however, he has some work experience in [certain jobs]. The expert reports that he was unable to maintain his past employment as he had begun to gamble and drink heavily.

8. The evidence before the Tribunal shows that the applicant’s psychological problems are being well-treated at present. The expert reports that the applicant had been admitted to the [City 1] clinic [in] October 2016 and commenced treatment with [medications], apparently resulting in a significant improvement in his mental state. At the hearing his mother also said the applicant had significantly improved after he was prescribed [medication]. And I consider that the applicant will be able to receive the treatment and medication he requires in Italy, including the recommended future treatment listed by the expert, as I find that Italy has a well-developed social security system and a health and mental health system and despite not having lived in Italy since 1990 he will have access to Italian government services including mental health services and medicine. The applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that the applicant’s criminal record in Australia will lead him to face a real risk of significant harm in Calabria Italy. As well, the applicant has not claimed despite ample opportunity, and there is no material before the Tribunal to suggest, that in Calabria the applicant’s cognitive impairments, limited Italian language skills, and psychological problems and treatment will attract the adverse attention of the authorities or community such that he would face a real risk of significant harm.

9. In light of the foregoing, I find there is not a real risk that he will suffer significant harm from the ‘Ndrangheta or similar group or their agents. I find there is not a real risk that he will suffer significant harm from the Italian authorities, community or any other group or person- for reason of his membership of the [applicant’s] family, or his past activities including his criminal record in Australia, or identity as a Calabrian man returning from Australia after a long residence, or because of his cognitive impairments, limited language, and psychological problems and treatment- either when these things are considered individually or cumulatively.

10. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Italy, there is a real risk that he will suffer significant harm.

    Request for referral to the Minister

11. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

12. The applicant’s request was not made in a written submission but by the representative orally at the hearing. The reasons for the request are ostensibly related to his limited Italian language, cognitive impairments, mental health condition and treatment, and need for support to achieve some degree of independent functioning in the community. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.

13. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Overall conclusion

14. 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).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    C. Packer
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    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.

    Refugee

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). 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.  

    Complementary protection

    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 a protection 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 the applicant 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’).

    ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.