1724639 (Refugee)

[2022] AATA 5154

1724639 (Refugee) [2022] AATA 5154 (3 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724639

COUNTRY OF REFERENCE:                   USA

MEMBER:Damian Creedon

DATE AND TIME OF

ORAL DECISION AND REASONS:         3 March 2022 at 9:58 am (WA time)

DATE OF WRITTEN RECORD:                10 February 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 10 February 2023 at 1:50pm

CATCHWORDS
REFUGEE – protection visa – United States of America – born in third country to mother from that country and father from USA – US citizen by descent and not eligible for citizenship of birth country – father abandoned applicant and mother at young age – mother’s physical and mental health – applicant cared for by grand-mother in birth country then aunt in Australia – application for orphan relative visa unsuccessful – father now dead and no other relatives willing or able to care for applicant – family, education and integration into community – no claim of persecution or well-founded fear – complementary protection – risk of irreparable harm and best interests of child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 15 September 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant, a citizen of the USA,[1] is [age] years old[2] and was born in [Country 1].  He first arrived in Australia [in] December 2015 holding a Visitor (UD601) visa.  He applied for a protection visa on 17 March 2017.

   [1] US Passport [number].

   [2] At the time of the hearing.

   Protection visa application

3. Among the materials provided to the Tribunal by the applicant was the delegate’s decision record dated 15 September 2017.  The decision record notes the following relevant information:

   The applicant lodged an application for an Orphan Relative visa in January 2016 ([File Number 1]). The department’s delegate refused the visa on the basis that the applicant’s mother was not so adversely affected by her medical conditions as to be unable to care for the applicant, and did not accept that the applicant’s father was ‘deceased, incapacitated or whereabouts unknown’.

   The Tribunal, in affirming the delegate’s decision, found that the applicant’s mother – in having the care of the applicant’s younger half-brother – was not incapable of looking after the applicant. The Tribunal noted the Australian Red Cross had made an unsuccessful attempt to trace the applicant’s father and so focused solely on the capacity of the applicant’s mother to care for the applicant. The Tribunal noted that the applicant’s maternal aunt, with whom he was residing, had not taken steps to adopt the applicant which bypassed certain legal requirements that must ordinarily be met through the intercountry adoption process and ensure Australia met its obligations under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

   The applicant’s claims for protection and supporting evidence are contained in [File Number 2]. The applicant’s claims for protection are summarised below:

   ·The applicant arrived in Australia in December 2015 on a visitor visa and is currently residing with his maternal aunt in Perth. His aunt is an Australian permanent resident in Australia with her husband and infant child.

   ·The applicant’s aunt was given legal guardianship of the applicant by the Ecclesiastical Court of First Instance in [Country 1] in August 2016. The applicant’s maternal grandmother previously had guardianship of the applicant in [Country 1] but was no longer able to care for him after developing breast [cancer and falling very ill.

   ·The applicant was born in [Country 1] but is not a [Country 1] citizen as citizenship passes through the father and the applicant’s father is a citizen of the USA. The applicant’s father passed his US citizenship to the applicant; the applicant holds a US passport.

   ·The applicant has no legal right of return to [Country 1] and is considered a foreigner. The applicant would be required to apply for a visa to gain entry to [Country 1] and would have no one to care for him as his mother will not take custody of him.

   ·The applicant does not know the whereabouts of his father as the applicant has not had contact since his father left his mother in 2007. The applicant has no one in the US to care for him and would be forced to enter the foster or other care system which would cause him serious harm.

4. The delegate refused to grant the visa on 11 April 2017 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.

5. The applicant applied for a review of the delegate’s decision.

   Application for review.

6. The applicant was represented in relation to the review.

   Pre-hearing submissions

7. The applicant’s representative provided submissions to the applicant which included the flowering summary under the heading “factual background” (excluding paragraph numbers):

   [The applicant] was born in [Country 1] on [Date].  His mother [name redacted] is a citizen of [Country 1] and his father [name redacted] is a citizen of the USA.  [The applicant] obtained USA citizenship by descent.  He is not eligible for [Country 1] citizenship.  He holds a passport from the USA.

   In [Year], [the applicant]’s father abandoned him and his mother and returned to USA.

   [The applicant]’s mother suffers from severe epilepsy and some form of mental illness, the precise nature of which is unclear.  She was, in any case, unable to care for [the applicant] and so in 2012, his grandmother, [redacted] was granted legal custody of him.

   [The applicant] resided with [his grandmother] in [Country 1] until she became unwell and unable to care for him.  He then travelled to Australia on a Subclass 601 visa and applied for an Orphan Relative Visa, sponsored by his aunt, [redacted], an Australian permanent resident.

   The Orphan Relative application was refused and the refusal decision affirmed by the AAT.

   [The applicant] has known [his aunt] all his live, having been with her until she migrated to Australia in 2013.  He has also lived with her since he arrived in Australia in December 2015.

   On 16 August 2016 the Ecclesiastical Court of First Instance in [Country 1] granted [his aunt] guardianship of [the applicant].

   [The applicant]’s father [name redacted] has had no contact with [the applicant] since [Year].  Red Cross Tracing was unable to locate him but did locate his brother, [name redacted] who informed Red Cross Tracing that [[the applicant]’s father] was an alcoholic and homeless.

   In October 2017, [[the applicant]’s aunt] contacted [his father’s brother] by telephone.  He advised her that he is an unmarried man who works 14 hours a day and is therefore not willing or able to provide care to [the applicant].  He repeated the advice of Red Cross, that [[the applicant]’s father] is homeless.

   In December 2017, [[the applicant]’s father’s brother] contacted [his aunt] again to inform her that [[the applicant]’s father] had died.

8. The applicant also submitted copies of the following documents:

   a.A handwritten letter dated 13 October 2015 written and signed by the applicant; the letter is brief, and it is convenient to set out its contents in full:

   Dear Sir,

   My name is [the applicant] I’m [Age] [years] old.

   I came from [Country 1] to live in Australia with my aunty [Ms A] and uncle [Mr B].  I like to live with my aunty and uncle because I feel safe with them.  They have a baby [called] [Ms C] she is like my sister.

   In Australia I’m learning to reading [sic] and writing in English.  I really like school and friends.  Mr friends [are] really good I feel safe with them.  School is a good place for [me].

   I pray every day for my visa for my country Australia.

   In Australia I see my future because Australia is a safe country to live and grow up in.

   I’ll be sad to leave Australia because it feels like my home in Australia.  My heart will break if I have to leave my sister [Ms C] and my family [Ms A] and [Mr B].  I never before felt safe and happy like in Australia.  I’m scared to leave my family because I feel safe with them.  I will not feel safe [anywhere] else exept [sic] Australia.

   [Please] let me stay in Australia with my family and friends.  Australia is my home [now] and I love it.

   Thank you for reading my [letter].

   [The applicant].

   b.A letter dated 11 October 2017 from the Principal of [School 1]; the letter provides materially as follows:

   I am writing in regard to [the applicant] who has been a student at [School 1] since the 23^rd August 2016 and continues to be enrolled here.  In this time, [the applicant] has developed his English skills and developed socially forming strong relationships and friendships.  [The applicant] is a polite and respectful student who has settled well into his new home.  [The applicant] is in Year [Number] and participate in class activities enthusiastically arriving on time each day with a positive disposition to learn.  [The applicant]’s aunty and uncle are very supportive and he has effectively bonded with his family including their young daughter.  His school attendance rate is excellent.

   I believe it would be in [the applicant]’s best interest to remain in Australia with his family.  We have been able to provide primary schooling for [the applicant] and we have secured a place for him in a [College] for next year for his high schooling.  [The applicant] has developed his confidence significantly and is part of our community.  The support he is receiving from his family here in Australia is assisting him to grow as a competent and contributing member of society.

   [The applicant] has had to leave a difficult situation in [Country 1] and has settled in with his new family experiencing positivity and a welcoming, nurturing environment.  [The applicant] has had significant trauma in his life already and uprooting him from his new community in which he is now established would be harmful to his development and detrimental to his future.

   In his short time here, [the applicant] has thrived and built significant relationships.  He is comfortable and is in an environment where he can continue to grow.  I would be very concerned if he was required to reestablish himself in a new community with caregivers that he has never met.  I would strongly support [the applicant] remaining in his current home and his aunty and uncle in Australia.

   c.A letter dated [2017] from [the Australian Red Cross]; the letter states materially as follows:

   Red Cross helps families around the world who are separated by way, conflict, disaster and migration.  This work includes finding missing loved ones, re-establishing contact, exchanging family news and clarifying the fate of the missing.

   We are writing to provide a final report on [the applicant]’s TRACING case for his father, [name redacted] following information we received from American Red Cross on [date].

   American Red Cross has been unable to locate the sought person but successfully located his brother, [name redacted].  [Brother] confirmed that [[the applicant]’s father] is currently homeless and managing ‘ongoing problems with alcoholism’.  [Brother] advised that unlike their parents, [Brother] is still inContact with [[the applicant]’s father] and was anticipating that [he] would come and visit him over the holidays, but so far he has not heard from him.

   …

   As this is the second report concerning the sought person having no fixed address and being currently homeless, American Red Cross has advised that they’ve exhausted all the search avenues available to them and will proceed to close the case.  In the event that they hear anything further… they will notify our office so that we can contact you as soon as possible.

   d.A “Certificate of Death” issued by the State of Texas,[3] USA, confirming the death of the applicant’s father [in] December 2017.

   [3] State of Texas, Certification of Vital Record, Certificate of Death, State File no. [Number].

9. The Tribunal has also read and had regard to the materials before the Tribunal (differently constituted) in connection with an earlier application.[4]

   [4] See Tribunal Case No. 1609898.

10. The applicant appeared before the Tribunal on 3 March 2022 to give evidence and present arguments.

11. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

12. 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.

13. 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.

14. 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).

15. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

16. 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

17. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis reasons and findings

18. The mere fact that a person claims fear of 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, that an applicant claims 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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 169-70).

19. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

22. The Tribunal heard evidence from the applicant and from his aunt.  The applicant’s evidence, in short, is that he is well settled with his aunt’s family, has integrated into Australian society and wishes to remain in Australia.

23. The applicant’s aunt’s evidence supported the applicant’s evidence, noting, in summary, that he had no relatives willing or able to care for him in either [Country 1] or the USA.

    The applicant: a well-founded fear of persecution for a Convention Reason

24. Having considered all the applicant’s dispositive claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. 

25. The Tribunal accepts that the applicant does not wish to reside in the USA and fears being removed there.  However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group. 

1. Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.  Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion.  None of these reasons apply to the applicant’s claim.

2. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

   The applicant: Complementary protection criteria

3. 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).

4. The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (EM), which enacted the “complementary protection” regime, stated that its purpose was to ‘introduce greater efficiency, transparency, and accountability into Australia’s arrangements for adhering to its non-refoulement obligations’ under a range of international treaties including the Convention on the Rights of the Child (CROC).

5. In particular, the EM stated that the statutory definition of “cruel or inhuman treatment” and “degrading treatment” derive from non-refoulement obligations implied from articles 2 and 7 of the International Covenant on Civil and Political Rights (ICCPR); it further stated at [83]:

   The non-refoulement obligations noted above may also be implied under the CROC to the extent that the CROC contains obligations in the same terms as the [ICCPR].  Claims by children will be assessed in an age-sensitive way, in view of the specific needs of children.

6. Article 37(a) of the CROC is in the same terms as article 7 of the ICCPR:

   No child shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

7. In assessing whether the applicant would be subjected to treatment that amounts to significant harm, it is therefore correct to understand the terms “cruel and inhuman treatment” and “degrading treatment” in light of Australia’s obligations under the CROC.

8. The applicant is considered a “separated child” under international human rights law, and his situation is the subject of General Comment No. 6 of the Committee on the Rights of the Child, entitled “Treatment of Unaccompanied and Separated Children Outside the Country of Origin”.

9. General Comment No. 6 states:

   Return to the country of origin is not an option if it would lead to a “reasonable risk” that such return would result in the violation of fundamental human rights of the child, and in particular, if the principle of non-refoulement applies. Return to the country of origin shall in principle only be arranged if such return is in the best interests of the child. Such a determination shall inter alia take into account the

   ·Safety, security and conditions, including socio-economic conditions awaiting the child upon return including through home study, where appropriate, conducted by social network organizations.

   ·Availability of care arrangements for that particular child.

   ·Views of the child expressed in exercise of his or her right to do so under article 12 and those of the caretakers.

   ·The child’s level of integration in the host country and the duration of absence from the home country.

   ·The child’s right “to preserve his or her identity, including nationality, name and family relations” (art. 8).

   ·The “desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (art. 20).

   In the absence of the availability of care provided by parents or members of the extended family, return to the country of origin should, in principle, not take place without advance secure and concrete arrangements of care and custodial responsibilities upon return to the country of origin.

10. In relation to refoulement and article 37(a) in particular, the General Comment states:

    Furthermore, in fulfilling obligations under the Convention, States shall not return
    a child to a country where there are substantial grounds for believing that there is a real
    risk of irreparable harm to the child, such as, but by no means limited to, those
    contemplated under articles 6 and 37 of the Convention, either in the country to which
    removal is to be effected or in any country to which the child may subsequently be
    removed. Such non-refoulement obligations apply irrespective of whether serious
    violations of those rights guaranteed under the Convention originate from non-State
    actors or whether such violations are directly intended or are the indirect consequence
    of action or inaction. The assessment of the risk of such serious violations should be
    conducted in an age and gender-sensitive manner and should, for example, take into
    account the particularly serious consequences for children of the insufficient provision of food or health services.

11. It is submitted on the applicant’s behalf that he is at risk of irreparable harm if he is removed to the United States of America (USA), taking into account these principles, particularly in relation to care arrangements, the applicant’s own views and his level of integration in Australia for the following reasons:

    a.The applicant’s uncle is unable or unwilling to care for him.  Further, the applicant does not know any relatives in the USA, and they do not share his cultural background.  It is submitted that these factors make it an unsuitable and potentially harmful care arrangement.

    b.The applicant wishes to continue in the care of his biological aunt and uncle.

    c.The applicant is now integrated into the Australian community.  He attends [School 1] where he has significant social, sporting and community ties.  It is submitted that these ties would be severed if he is removed to the USA which would be seriously detrimental to his welfare and development.

12. It is further submitted that removal to the USA would cause emotional and psychological harm to the applicant, amounting to a “real risk of irreparable harm”, contrary to article 37(a) of the CROC and article 7 of the ICCPR; and that this is consistent with the statutory definition of in the Act and therefore constitutes significant harm.

13. The Tribunal finds weight in these submissions.  Having regard to the evidence before it, the Tribunal concludes that the applicant’s individual exposure to the risk of “irreparable harm” meets the statutory threshold. 

14. The cumulative effect of the factors set out at para [36], when taken with the whole of the evidence before the Tribunal[5] places the applicant at risk of differential treatment because of characteristics that distinguish him from the general populace of the USA.[6] 

    [5] Including the material before the Tribunal as previously constituted.

    [6] See generally Rares J in SZSPT v MIBP [2014] FCA 1245.

15. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(aa).

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

    Damian Creedon
    Member