1720625 (Refugee)

[2018] AATA 1064

1720625 (Refugee) [2018] AATA 1064 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720625

COUNTRY OF REFERENCE:                  Brazil

MEMBER:Luke Hardy

DATE:23 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 23 March 2018 at 11:07am

CATCHWORDS

Refugee – Protection visa – Brazil – Complementary protection – Federal Circuit Court remittal – Original claims no longer relevant – Eldest child now Australian citizen – Best interests of children

LEGISLATION

Migration Act 1958, ss 36, 48A, 65, 417, 438

Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of Brazil. [The applicants] arrived in Australia [in] November 2002. They lodged a protection visa application [in] January 2003. A delegate of the Minister refused their application [in] January 2003 and that decision was affirmed by the Refugee Review Tribunal on 1 December 2003. The applicants sought judicial review in the Federal Magistrates Court which dismissed their application [in] April 2005. The applicants unsuccessfully sought Ministerial intervention.

3. [The applicants] have three children all born in Australia since 2007. An application for conferral of citizenship on [their eldest child], was refused [in] May 2010. The AAT affirmed this decision on 21 October 2011.

4. The three children in this family lodged a protection visa application [in] December 2011. A delegate of the Minister refused their application [in] July 2012 and the Refugee Review Tribunal affirmed that decision on 18 December 2012. An unsuccessful request for Ministerial intervention followed.

5. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

6. Relevant to the current application, s. 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

7. In light of SZGIZ, all five applicants lodged a fresh protection visa application on 21 May 2014. A delegate of the Minister refused to grant the visas on 30 October 2014.

8. The delegate purported to determine the application on refugee grounds as well as on complementary protection grounds. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal found that it did not have power to consider the Refugee Convention criterion in s.36(2)(a), and proceeded to decide the matter on the basis that it could only consider the applicants’ claims under the complementary protection provisions in s.36(2)(aa) of the Act.

9. [The applicants] appeared before me, the previously-constituted Tribunal, on 3 June 2016 to give evidence and present arguments. They spoke on behalf of their minor children, the eldest [child] was only [age] years old. [The primary applicant] gave evidence in English and Portuguese. [The secondary applicant] gave evidence in Portuguese. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

10. I made a decision to affirm the delegate’s decision on 3 June 2016. The applicants then sought judicial review in the Federal Circuit Court, which gave consent orders [in] August 2017 for the matter to be remitted to the Tribunal, for reconsideration according to the law, for the following reasons:

    The MIBP [Minister for Immigration and Border Protection] concedes that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal denied the Applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:

    a) a delegate of the MIBP issued a certificate pursuant to section 438(1)(a) of the Migration Act 1958 (Cth) [in] October 2014 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal; and

    b) at least some of the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.

11. The matter was re-constituted to me. The documents covered by the s.438 certificate in this case were internal Immigration Department working documents: they appear at ff. 97 to 105 and ff.107 to 119 of the main applicant’s file [number] which contains her original [January] 2003 protection visa application; overall they generally and briefly summarise her original protection visa claims in connection with a public interest (s.417) request. I had treated the certificate as invalid as the documents were internal Immigration Department working documents that were irrelevant to the review before me.

12. Essentially, however, I did not inform the applicants that the s.438 certificate was invalid, in view of its covering merely internal working documents containing information that did not impact on their claims in their current review application. In addition, I did not give them clear reasons at the 3 June 2016 hearing as to why I did not consider the material relevant to this review. I invited the applicants to a further hearing of this matter.

13. Meanwhile, [the eldest child] became an Australian citizen on his tenth birthday [in] 2017. He thus became ineligible to be included in the review. He withdrew from the review on 26 April 2017.

14. [The applicants] appeared again before the Tribunal on 31 January 2018. They spoke again on behalf of the two remaining minor [applicants]. [The primary applicant] gave evidence in English and Portuguese. [The secondary applicant] gave evidence in Portuguese. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

15. The issue in this case is whether any of the applicants is entitled to complementary protection in Australia under s.36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

16. For convenience and clarity, I reproduce here my previous summary of the applicants’ claims (MRD ref. no. 1419301):

    12.[The primary applicant]’s original protection visa claims related to her having been accused of engaging in electoral fraud in a local vote count in Brazil’s federal election of 2002. According to her original application, she was a supporter of the PSDB and was harassed at the time by political opponents and vandals supporting the rival, and larger political party known as PT. She claimed the local police were called in. She claimed she was briefly detained. The Refugee Review Tribunal found that her claims related to a specific place and specific individuals at a specific time that, at the time of decision, ended around the 2002 election, after which she remained at large in Brazil and left the country without any potentially relevant difficulty. The Refugee Review Tribunal found there was not a real chance of the applicants facing Convention-related persecution in Brazil.

    13.Significantly, both [the applicants] told me that they no longer rely on these issues as claims in their current protection visa application. [The primary applicant] said that the problems relating to herself which she had raised in earlier applications were no longer relevant any more. [The secondary applicant] suggested that the only relevance of politics in the present application is that the current suspension of the President pending an impeachment trial adds to an atmosphere of generalised social instability and political uncertainty in the country.

    14.Both applicants said that the reason for and basis of their current protection visa application is concern for their children, all born in Australia. They and the recent delegate’s decision referred me to claims and supporting material presented to the Refugee Review Tribunal in the children’s’ original protection visa application. The applicants further expanded on these claims in statements and submissions to the delegate who refused the present application [in] October 2014. In summary, the applicants claim that their children would have difficulty adjusting to life, school and social pressures in Brazil and may suffer harm including emotional and psychological problems as a result. They argued in effect that their children would face difficulty negotiating the vicissitudes of the generally poor law and order situation in Brazil, a situation exacerbated by the current atmosphere of generalised political instability. They suggest that their children might be more vulnerable to exploitation in Brazil due to a relative lack of familiarity with conditions there, but they also indicated to me that they could only speculate about this. They said they fear for their children being forced overnight to start life fresh in Brazil.

    15.In support of the children’s previous and current protection visa application, [the applicants] have provided a number of independent reports about the crime rate in Brazil, and also about the general vulnerability of minors, particularly in poorer communities, to exploitation, abuse, kidnapping, addiction and criminalisation. They also submitted a document including references to more recent commentary at the beginning of the hearing. I have considered all this material.

    16.[The applicants] both suggested their children might be all the more exposed to Brazil’s socio-political instability and poor law and order standards because they would be relatively very unfamiliar with Brazilian society. However, they both appeared to acknowledge that the arguably poor law and order situation in Brazil affects the population generally.

    17.[The applicants] indicated to me that they were aware that all of their claims, including the claims made on behalf of their children had hitherto failed to meet the “real chance” test, when they were considered as refugee claims. Relevantly, I note that s.36(2)(aa) of the Act refers to a “real risk” of an applicant suffering significant harm. I also note that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. I discussed with them how the Migration Act exhaustively defines “significant harm”. I put to them that a person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.

    18.I pointed out to the applicants that “cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act. Specifically, I informed them that all three of these definitions require that there be an intention to inflict harm by some act or omission.

    19.I invited [the primary applicant] and her husband to comment on … [previous decision makers’] conclusions in the past to the effect that neither they nor their children faced a “real chance” of persecution. I invited them in particular, to comment on the recent delegate’s assessment to the effect that they do not face a real risk of significant harm in the event of removal to Brazil. I invited them to provide any information they might have, in addition to all the evidence they had provided on earlier occasions and other forms, that might help argue that they and/or their children face a real risk of significant harm in Brazil.

    20.I asked the applicants about their family and occupational circumstances. Both of them have had experience in Brazil in the private sector. Both indicated it would be hard for them to find work soon enough to support their children adequately. Both claimed that they have few family members with whom to be in contact in Brazil, let alone upon whom they could ever rely for support. Neither applicant suggested that any factor in Brazil would interfere with their capacity to supervise, warn and educate their children with regard to the general social and security environment there. Having heard them discuss the dangers that people face in certain circumstances in Brazil I put to the applicants that their concerns about their children being significantly affected by the generalised social, security and law and order conditions in Brazil appeared to be purely speculative.

    21.In response, [the primary applicant] said that she did not think that her family would be facing a “real risk” of significant harm. She added, however, that she would not like to put her children in a situation where they are closer to the kind of crime-related events they read and hear about in the media.

    22.The applicants devoted much of their attention in this matter to arguing that their children are more or less enculturated as virtual Australians. She suggested that this would make it harder for her children to adjust and protect themselves from the socio-economic environment in Brazil, but she also appeared to acknowledge that the risk of harm she was talking about is faced by the Brazilian population generally. [The secondary applicant] emphasised that the political situation in Brazil is potentially bad for his and [the primary applicant]’s children, but he indicated that this situation affects Brazilian society generally. I have duly weighed all of these considerations, noting that under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

17. I explained to the applicants that I viewed s.438 certificate as being an invalid one, as it covered documents that were internal Immigration Department working documents summarising refugee status and public interest claims that the applicants themselves had already directly presented. Offered an opportunity to respond, the applicants did not argue against this position.

18. Not least since there had recently been a potentially significant new development in the applicants’ family circumstances, with [the eldest child] having become an Australian citizen, I allowed the applicants a fresh opportunity to raise any new concerns or information that they might consider relevant to their case. Essentially their position is that, given [the eldest child] is an Australian citizen and entitled to reside here, it would be emotionally detrimental for him to be left in foster care in Australia and be unfair to expect him to depart Australia and live in the more socially troubled environment of Brazil.

19. [The primary applicant] argued that return to Brazil would have a negative impact on all her children and that although [the eldest child] is no longer an applicant in this matter, the impact of the harm he might encounter in Brazil would significantly affect the rest of the family.

20. I asked the applicants to describe the harm her children would suffer in the event of removal from Australia to Brazil. [The primary applicant] said that education and health are inferior in Brazil compared with Australia. She said that her children have all their friends here in Australia. She indicated that the children might be harassed due to their general lack of familiarity with Brazil. She said that there is more pervasive criminality in Brazil compared with Australia. [The secondary applicant] said that schools in Brazil are dangerous and that his children might be bullied by other pupils if they return there. He also said that the Brazilian school curriculum is inferior. In addition he opined that there is more “gender fluidity” in Brazil but was unable to say how this would affect his family. I asked if sending the children to Catholic or other private schools in Brazil would lessen their exposure to criminality and the response was that the situation might be better for the children if they were enrolled in private schools there. However, the applicants told me that private schools including Catholic schools in Brazil are expensive.

21. I asked the applicants to comment on whether the risk of harm described in their testimony was a real risk, as their claims appeared to be purely speculative. In reply, [The secondary applicant] said the anticipated risk was difficult to specify. He said there might be a risk of harm at school. He added that it would be difficult for the family to settle anywhere. I asked if relatives might held them reintegrate and [the primary applicant] said the family might be able to reside for a while in an apartment. She then indicated that she feared it would be hard at her and her husband’s ages to find employment. [The secondary applicant] added that he used to be a member of a gang when he was a youth but had grown up, embraced Christianity and become more polite. He then indicated a fear of seeing his children being influenced to join gangs, but then said he did not really foresee it happening due to the education they had already received here.

22. I allowed a ten-minute break in the hearing for the applicants to gather their thoughts. When we resumed, I asked them if they had any other information they might want to present to me. In reply, they asked for more time to present more updated information about the law and order situation in Brazil. Having regard to the demands of the children on their time and energy, and also noting that they were unrepresented, I granted fourteen days for further submissions.

23. I received submissions on 13 and 15 February 2018.

24. The 13 February submission comprises, amongst other things, independent reporting on teen violence and crime in Brazil, examples of strikes and general social disintegration and statistics about violence in society as witnessed by students surveyed in Porto Alegre. There is also a favourable student report and a “Distinction” assessment of performance in mathematics by the applicants’ second [child].

25. In the 15 February submission, the applicants mention they were wanting to take their children to a psychologist for assessment of the potential psychological effects of returning to Brazil, but ran out of time. The same submission included reporting on crime statistics, including a translated UNICEF media release stating that 11,403 children were murdered in Brazil in 2015, the majority of these having been black boys, and most of those having left school during primary.

1. To sum up the applicants’ claims, they essentially continued to speculate that their children might witness or suffer student harassment and/or gang violence in Brazil. They also claimed that whereas they did not want to have to take their Australian citizen child [back] to face possible harm in Brazil, they also felt it would be unreasonable to leave him behind in Australia without their close care and support.

   Findings in relation to s.36(2)(aa) of the Act

2. I have considered all of the evidence before me, separately and cumulatively, taking account of the son [having] recently become and Australian citizen. I have given some weight to [the primary applicant]’s claim during the earlier Tribunal hearing to the effect that t she did not think her family faces a “real risk” of significant harm in Brazil, her main worries being that she was reluctant to have her children live in a society where people witness violence and other crime. I have considered that the applicants do not wish to leave their son [in] Australia and that in the event of removal to Brazil they would not want to be separated from him, the logical outcome being that they would take him with them in such a circumstance.

3. Overall, I find that the applicants’ claims about being directly or indirectly harmed due to law and order conditions in Brazil are bald speculations. As described by the applicants, and as discussed in reports they have submitted, the risk of harm to them is a risk faced by the Brazilian population generally and not faced by any of them personally.

4. Having considered all of the evidence in this matter in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Brazil, there is a real risk that they will suffer significant harm. Accordingly they do not meet the criteria of s.36(2)(aa) of the Act.

5. For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in s.36(2) (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   REQUEST FOR MINISTERIAL INTERVENTION

6. The applicants have reiterated that, in the event of a negative decision in this matter, they would like the Minister to intervene in the interests of their young children, and in particular in the interest of their Australian citizen [son].

   DECISION

7. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Luke Hardy
   Member
   Attachment a

   
   
   

   RELEVANT LAW

8. 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, the applicant 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.

9. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. 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’).

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.