1724823 (Refugee)

1724823 (Refugee) [2022] AATA 5136 (16 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1724823

COUNTRY OF REFERENCE: Germany
MEMBER:Lilly Mojsin
DATE:16 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 December 2022 at 9:22am
CATCHWORDS
REFUGEE – protection visa – Germany – attacks on women by Muslims – employment – state protection – internal relocation – gender-based violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 426, 441, 499
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 September 2017 to refuse to grant the applicants protection visas [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Germany applied for the visas on 9 May 2017.
The first applicant [applicant] arrived in Australia [in] July 2007, departed [in] June 2007 and returned again [in] February 2008 as the holder of an Electronic Travel Authority (Visitor) (subclass 976) remaining in Australia until [October] 2012. He arrived in Australia again [in] November 2012 as the holder of a Temporary Work (Skilled) (subclass 457) visa. The 1^st applicant obtained a Temporary Work (Skilled) (subclass 457) visa on 20 May 2013, valid until 20 May 2017.
The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on their return to Germany.
The applicants appealed that decision to this Tribunal, attaching a copy of the Department decision to their application for review.
The applicants were invited, pursuant to s425 of the Act, to appear before the Tribunal on 2 November at 9.30 am. Due to COVID19, the invitation stated that the hearing would be held by Teams video. The hearing invitation also stated that if the applicants are not able to attend the hearing, they should advise the Tribunal as soon as possible. The hearing invitation also advised the applicants that if the applicants do not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.
The applicants did not respond to the Tribunal’s hearing invitation. Nor has the Tribunal received any communication from the applicants about the hearing or to explain their non-attendance.
Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Alternatively, the Tribunal may dismiss the application without any further consideration of the application of information before the Tribunal.
I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
I find the hearing invitation which was sent to the applicants’ email address for service that was given by the applicants to the Tribunal. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF Claims and evidence
The 1^st applicant is the father, the 2^nd applicant his wife and the 3^rd and 4^th applicants are their sons. The applicant resided in [Town 1] prior to coming to Australia. In their PV applications to the Department the applicants state that their daughter is a resident of Australia and had applied for a partner visa at the time of application for the PV.
The 1^st applicant is now [age] years of age. His occupation is [an occupation 1]. His mother, father and [a sibling] reside in Germany. He stated that he is entitled to receive a pension of 625 Euro per month until 60 years of age and then he will receive Euro 2000-2500 per month. The 1^st applicant and the 3^rd applicant work in the [named] industry in [Town 2].
The 1^st, 3^rd and 4^th applicants provided the following information:
a.   We suffered several attacks from different sites. This started in 2000 and continued until we left Germany. My sister and my mother suffered a lot. They could not leave the house alone.
b.   If we return to German [sic] it is a question of time when the attacks will start again.
c.   Muslims attacked my sister and my mother, we can only guess why they attacked them but not clue exactly why.
d.   We went to the police (police station [Town 1]). They could not help us. We asked a lawyer for help, [Lawyer A] but he said it is not possible to protect us.
e.   We tried to move but there was no work in other areas for us.
f.    We have a silence growing war in Germany. There are more and more areas Germans can not live in peace. We will get more refugees in the next month and years. German women are very affect. My sister and my mother suffered a lot about the daily fright.
g.   We were seeking for help in 2005, 2006 and 2007. The Police in Germany cannot protect us because we have now 1.1 million refugees and 400,000 have no identity. They said to us stay in Australia and your problem is solved.
h.   We can read and hear everyday about crimes in Germany against women and my mother and sister are not safe there. We called the police in Germany and they said its not safe.
The 1^st applicant additionally stated that he was unable to find work because all [businesses in his industry] are closed now.
The 2^nd applicant provided the following details:
a.   We suffered several attacks from different sites. This started in 2000 and continued until we left Germany. Someone reported as at the police and the youth welfare department.
b.   Luckily we could explain the situation and the police and youth welfare department believed us. I got phone calls and someone threatened me. I informed the [agency 1] where I worked voluntarily and the police but there was no way to help me and my family. The [Town 1] changed in 2004 dramatic. We got more and more people from other countries. They had sat in front of shopping centre and it was full of fear there for me. So I went shopping only with my husband, [named]. I had to go to the schools sometimes alone and it was full of fear.
c.   If we return to Germany, I believe it will be more worse and it will start again. We can hear and see this every day at Facebook, the news. We can read it in the news paper. Germany has a terrible refugee crisis and almost every German are concerned.
d.   All [businesses in his industry] are now closed in Germany. My husband [named] and my son [named] cannot find work in Germany.
e.   [My husband] is now 30 years [as an occupation 1] in [his industry]. [My husband] became his Australian [occupation 1] in 2016.
f.    [My son] is now 6 years working in the [same industry] here in Australia. He started with 17 years after he finished his [education] at [a named] School in [Town 2].
g.   Our daughter [named] will stay in Australia. She is now over 5 years together with her [partner]. She applied in 2016 for a partner visa. She is in her 4 year [apprenticeship]. We have a very close relationship. It would be terrible to see her only once a year.
h.   I did not feel safe and I was in fear I had to deal with this almost every day. So I got thick. I became headache and diarrhoea. I went to the doctor.
i.    We went to the police (police station [Town 1]). They could not help us. We asked a lawyer for help, [Lawyer A] but he said it is not possible to protect us.
j.    We tried to move to other areas in Germany but there was no work for my husband, [named]. He is an [occupation 1] in [his industry].
k.   We have a silence growing war in Germany. There are more and more areas Germans cannot live in peace. We will get more refugees in the next month and years. German women are very affect. My sister and my mother suffered a lot about the daily fright.
l.    We were seeking for help in 2005, 2006 and 2007. The Police in Germany cannot protect us because we have now 1.1 million refugees and 400,000 have no identity. They said to us stay in Australia and your problem is solved.
m. The police in Germany cannot handle the situation. They have too much to do with refugees and people with no identity.
REASONS AND FINDINGS
The applicants’ identities have been accepted by the Department in their visa applications. On the basis of their German passports, I accept that the applicants are nationals of Germany. I accept that they do not have a right to enter and reside in any country other than Germany. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Germany is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
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.
The applicants were put on notice that the department did not accept their claims. The applicants did not attend the Tribunal hearing and I was unable to explore the applicants’ claims with them.
Without further information from the applicants, I am unable to accept that they were attacked from different sites continuously from 2000 or that in 2004 the applicants became fearful or were reported to the police and welfare Department, or that the 2^nd applicant was threatened and received phone calls. I also do not accept, without further information that the applicants went to the police and a lawyer and could not obtain help or that the applicants were attacked by Muslims or refugees.
Therefore, I am not satisfied that the applicants suffered serious harm for reasons of their race, religion, nationality, membership or a particular social group or political opinion in Germany.
I am required to assess whether the applicants will suffer serious or significant harm on their return to Germany.
The independent evidence[1] before me indicates that Germany is a constitutional democracy. Citizens choose their representatives periodically in free and fair multiparty elections. The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements. The constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right. The government took steps to investigate, prosecute, and punish officials in the security services and elsewhere in government who committed human rights abuses or were accused of corruption. The federal government, the states, and NGOs supported numerous projects to prevent and respond to cases of gender-based violence. Sexual harassment of women was a recognized problem and prohibited by law. Penalties include fines and prison sentences of up to five years.
[1] US State Department 2021 Country Reports on Human Rights Practices: Germany
The independent evidence before me does not suggest that German citizens do not receive the protection of the police if and when attacked and harmed, by Muslims, refugees or any other non-state actors. I am of the view that were it the situation it would be known to independent sources such as the US State Department, UK Home Office and Amnesty International.
The 2^nd applicant claims that if they return to Germany “it will start again” or that women are not safe but as she does not provide any details, without further information I am unable to be satisfied that the applicants are not safe in Germany.
I accept that [in] 2007[2] [Town 1’s] [specified business closed]. Without further information from the applicants regarding retraining programs and efforts they made to obtain employment in Germany, I do not accept that the 1^st and 3^rd applicants cannot find work in Germany.
[2] [Source deleted.]
I have considered the applicants’ claims singularly and cumulatively. In light of the independent information, I do not accept that there is a real chance the applicants will suffer serious harm, within a reasonably foreseeable future, on their return to Germany for reasons of their race, religion, nationality, membership of a particular social group or political opinion.
I am required to assess whether the applicants will suffer significant harm on their return to Germany within a reasonably foreseeable future.
As stated above, I reject the applicants’ claim they suffered persecution or any harm in Germany. Therefore, I do not accept that the applicant will suffer significant harm on return to Germany.
Therefore, I do not accept that the applicant will suffer significant harm on return to Germany, or there is a real risk that the applicants will suffer significant harm ie that there is a real risk that they will be arbitrarily deprived of their life, that the death penalty will be carried out on them, that he will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.
There is no suggestion that the applicants satisfy 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.
Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 5136

16 December 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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