1800569 (Refugee)

1800569 (Refugee) [2024] AATA 824 (11 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1800569

COUNTRY OF REFERENCE: Greece
MEMBER:Lilly Mojsin
DATE:11 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 January 2024 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Greece – particular social group – threats from loan sharks – economic conditions – sexual assault – return visits to Greece – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 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 Home Affairs on 20 December 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 Greece, are the mother, father and their children, a son and two daughters. They applied for the visas on 22 August 2016. The delegate refused to grant the visas as the delegate found that, due to the applicants failing to avail themselves of the right to enter another country aside from Australia, particularly as EU citizens, they are not applicants to whom Australia has protection obligations.
The applicants appealed that decision to this Tribunal. They have provided a copy of the Department decision to the Tribunal.
The applicants appeared before the Tribunal on 20 November 2023, by video, to give evidence and present arguments. The applicants were assisted by a Greek interpreter.
I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments in the format which was utilised. The first applicant [applicant] confirmed that she could hear and see the Tribunal Member and interpreter. I was able to interact with the applicant and the interpreter and I was able to maintain line of sight and appropriate communication throughout the proceedings.
I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In their PV applications, the first applicant [applicant] made claims on behalf of herself, her husband and children. She stated:
§They left their home country to visit Australia after the collapse of the Greek economy
§In Greece, her husband had been [an occupation 1], who lost his job and there was no way that they could provide for their children. Getting out of Greece to escape unemployment and the economic situation was a matter of survival.
§Taxes imposed by the state could not be paid for, leading to an unaffordable debt. She and her husband did not want to leave their children with the debt. They sold many of their assets in Greece, including vehicles, jewellery and her husband’s tools. They have their own house there, however all the relatives who they live with, are below the poverty line so familial assistance was not possible.
§Her children will face problems should they return to Greece, as life is difficult and they now have friends and lifestyle in Australia.
§They looked at other countries they could escape to and settled on Australia. Moving internally was not an option as their economic situation did not allow them to go elsewhere.
§Returning to Greece would be a ‘disaster’ for the applicant and her family, stating that the state is unable to help them and there are many other families looking to escape Greece too. There are no jobs, and the few that exist are for only a few hours at a minimum wage that is unaffordable for a family of five.
§Their children have learned the English language well and have begun to forget the Greek language. The children would face ‘racism’ from other children, should they return to Greece, as they do not know how to read and write well in Greek which would mean they also would be required to lose a year of school.
§The situation in Greece, which is worsening year by year, has led to the Government being unable to do anything about the economic and humanitarian crisis.
§Relocation to Greece, and to other parts of Greece, was impossible as they would feel like strangers in their own country with no homes, money or work. Because they cannot take care of their children, applicant fears that the State would take them away from her and her husband and send them to an institution providing shelter and food.
In a pre-hearing statement to the Tribunal, dated 10 November 2023, the applicant stated:
§ The second applicant was [an occupation 1] in Greece.
§ In 2003, her husband worked for [a named employer] and lost €30,000. Having been unable to renew the initial contract, he did not have enough evidence to get his money back and did not want to take a legal avenue as he believed this would harm the image of his company.
§ In 2005, his company undertook a major job for [a named organisation], but the result of a flood in the region led to the loss of his tools at a cost of €50,000. These losses led to his company struggling to stay solvent and pay workers, so he took out a loan from the bank.
§ By 2008, the company was doing better but, as profits were being invested back into growing the business, the family’s savings had not grown.
§ In the same year, his [company] would take up a large job which would pay off the company’s debts, however this deal fell through and the business’ financial status once again became strained.
§ Towards the end of 2008, the second applicant had become nervous and distant and the applicant had lost a significant amount of weight.
§ Suddenly, their debts began to clear despite the company continuing to not provide enough income to meet their expenses. Her husband would not tell her where the money has been coming from but told her to trust him.
§ In 2012 police officers and a Court Clerk went to their home and seized their machines and a [property]. The second applicant said he had borrowed money from an individual hoping that his work would get better and that he would be able to pay them back.
§ The assets that were seized were of higher value than the money he had borrowed from this individual.
§ The seizure destroyed their lifestyle and her husband became withdrawn and wouldn’t speak to anyone. The applicant decided that she would make a new start as the seizures occurred for assets only in her husband’s name so she could step up and provide for the family.
§ The applicant’s mother ran a shop in their village with [a business 1] and offered her the opportunity to work there provided the applicant paid for the ‘flow of the home’.
§ The applicant and her husband opened the shop in 2013, and the applicants husband took on a job also as [a occupation 2] [at a business 2] owned by [Mr A].
§ Supplemented by her husband’s income from his job, they bought [goats] and began to have hope that they could change their fortunes.
§ The second applicant sold the baby goats, broke his phone, and was constantly nervous. He told her he had visited the [named] Health Centre several times on the grounds that he fell on the mountain or that the goats had knocked him over.
§ The applicant noticed that these injuries did not match what her husband had been telling her but she did not ask further.
§ One day the applicant’s mother came to her shop and said that she would tend the store while the applicant took her children to the local playground.
§ At the playground, her [Son A] fell off his bike and the applicant went to tend to his injuries with her daughter [and] left her [Daughter A] on the swing.
§ When she turned back to check on [Daughter A], she saw an unknown man with her daughter committing a sexual act of touching. Her daughter yelled and tried to escape before the applicant went over to protect her.
§ After surrounding onlookers immobilised the assailant and had him arrested, she received a call stating that she would not be there to protect the child next time this happened. As a result of this, the applicant did not place charges against the man.
§ She continued to receive threatening phone calls telling her they should leave their area, they would not be able to take their children.
§ The applicant took her daughter to see a paediatrician who found no physical injuries but advised her to watch [Daughter A's] psychological condition and consult a child psychologist if she noticed odd behaviour.
§ Within their local village, negative claims would be made about her daughter. Her daughter began to be bullied by the other children.
§ These events prompted the applicant and her husband to seek to move elsewhere.
§ They sold their jewellery and leftover tools, gave the money to the applicant’s mother who would take care of the children. The applicant’s sister informed her that they would be moving to Athens and were concerned that the applicant’s mother would not be able to take care of the children by herself.
§ The applicant and her husband moved to Australia and were joined later by the children and the applicant’s mother.
§ The applicant tried to go back to Greece for Easter but was told that the remaining tools owned by her husband had been stolen from her father in law. The father in law stated that this was because they were not expected to return to Greece, and the thieves were both caught.
§ The Applicant finalised her new statement of claims by stating that they cannot return to Greece and their lives are threatened. She states that her children have now begun tertiary education in Australia and are progressing with their lives.
Pre-hearing, on 10 November 2023, the applicant provided the following documents to the Tribunal:
·   A copy of the Delegate Decision Record dated 20 December 2017 with handwritten annotations.
·   Letter of support from [name] (applicant's employer) dated 24 March 2022
·   Original and English translation of news article dated [in] April 2013 referring to [an age] year old mother who reported to [Police Station 1] the indecent behaviour on her underage daughter, and the nature of indecent action by [an age] year old [Nationality 1 man] had not been established by the child’s mother. It was further stated that valid sources reported that the daughter was playing with children and was found near the man and they decided to report the incident to police. This resulted in a law suit against the man for sexual abuse.
·   Original and English translation of record of offence lodged with [Police Station 1] dated [in] April 2013 stated the applicant reported a complaint that [Mr B], a [Nationality 1 man], violated article 337PC for an act against the fifth applicant.
·   Original and English translation of Offences of Sexual Abuse - Greek Law Penal Code Article 337
·   Original and English translation of record of offence lodged with [Police Station 1] dated [a day in] September 2017 stating that on [that day] [Relative A] lodged a complaint he was insulted and threatened outside cemetery by [Mr C]. The police summoned the respondent who stated the complaint was false and unsubstantiated
·   Original and English translation of record of offence lodged with [Police Station 1] dated [in] March 2017 by [Relative A] that on [a day in February] 2017 an unknown perpetrator broke into building and removed various [tools]. It also stated that the respondent’s home was searched and the complainant recognised some of the removed [tools].
On 13 November 2023 the applicant submitted a number of duplicated documents provided on 10 November 2023, as detailed above, and the following documents:
·Letter of support from [Mr D] of [named business] on behalf of second applicant dated 19 October 2023
At the Tribunal hearing the applicant told the Tribunal that she was born in [specified year], and she has always lived in Greece. She has not travelled to any other countries. The applicant has an uncle, her father’s brother, and his [children], who live in Australia. She works in Australia as [an occupation 3]. Her husband works in [industry 1]. The third applicant is [age] years of age and the fourth applicant is [age] years of age. The third applicant goes to university and is studying [course 1]. The fourth applicant is [studying] and has been accepted to study [course 2].
When asked why they have not gone to other EU countries if they did not want to live in Greece, the applicant said that they were obliged to leave their own country. She and her husband came to Australia in 2013 on a visitor visa, and then returned back to Greece after about 2-3 months. The applicant then returned on a student visa. She was studying English initially and then she studied [Course 3] in order to give herself time but she was not keen on studying. She finished her [Course 3] course after 5 years.
Her children arrived in Australia in 2014. They have not been back. They remained on their own in Greece for 8 months with her mother and sister in [Town 1] and then they went to Athens when they moved in with her sister.
The applicant gave evidence that in Greece, they did not have particular problems, they did not particularly want to leave. She explained that her husband had a [company] and he lost a lot of money and he was obliged to borrow money from loan sharks. They worked to pay them back but the loan sharks never stopped asking for more money. Then they attacked her youngest daughter sexually. She reported it to the police and they would not let them take if further as they were threatening all the time.
The applicant said that initially they did not seek a PV as they did not have any intention to stay. Every time they tried to return to Greece these people threatened their relatives if they were to return they would suffer great harm. I put to the applicant that she did not tell the Department they continued to threaten their relatives, nor did she tell the Department they were threatened by loan sharks. I explained s.423A. She said she sent paperwork and police reports to the Tribunal. She said that the police investigated it.
I put to her that it appeared there was no evidence that the [Nationality 1] man did anything to her daughter. She referred to a newspaper article. I indicated that in regard to the [Nationality 1] male, it stated the child was found near the man. There has been no reports or evidence that anything happened to the child. She said she did not go to the court. She stopped the proceeding. I put that the incident did not occur for a refugee reason. She agreed.
I asked how the loan sharks were threatening them. She said they have a [business 1] and those people came and demanded money. I put to her that she could report the incidents to the police but did not do so. She said she was scared that in the intervening time when the court proceedings would take place they could be harmed.
The applicant said that she and her husband were running the [business 1]. Her husband was working [and] they had livestock - goats they looked after. I put that they could have moved somewhere else in Greece, or an EU country. She responded that the system in Greece is not correct. She responded that while they were in panic they left. I put that they came to Australia in 2013 without children and were not concerned about them as they left them in Greece. She said that she left to go overseas and work. They did not know anyone here and came to Australia. I put she has an uncle. She said she does not contact him and he lives a long way away. I put that she came on tourist visa to check out how to stay in Australia and then returned with a student visa.
I suggested to the applicant that her return to Greece in 2013 indicated they had no fear of harm. She said they were scared. I put to the applicant that they returned and did not report them to the police. She said they were sending some money to the loan sharks. She said “we paid them out” but they continued to demand money. I put she can utilise Greek civil law and also the criminal law for their protection.
She said that in Greece she and her husband place all his tools in a special place, in order to have them when they returned. When it became known they would be going back to Lesbos, half the tools were stolen. They reported it to the police and the matter went to court. Those people paid a nominal amount, about ½ value of tools but they continued to threaten them, nevertheless. Her father-in-law reported they had threatened them and the police told them to make an official complaint for the matter to go to court. They were scared. It was 3 or 4 years ago, in 2019. The accused did not appear in court and judgement was given in absentia. I put to the applicant that she was in Australia then. She said the court case was actioned by her father-in-law. I suggested it had nothing to do with her. She said they threatened her father-in-law and mother.
I put to her that they were being threatened not for a refugee reason but for a debt. She agreed. She said she fears for her life.
I put to the applicant she had waited 3 years before applying for a PV and she said after 3 years she realised she was in danger so she applied for PV and had a student visa at the same time.
Asked what she now fears about returning to Greece, she said that she is not too concerned about returning, she scared for her children to go back. She and her husband have to work to support their children studying. There is still an issue with payment to loan sharks but they have paid everything back. She regards Australia as her home country. If this country does not accept her then she will not go back to Greece. She has been here for 10 years and the children do not speak Greek properly. Her son won’t leave and will stay here. Her daughter will stay here as she is starting university in February and she will have to start up in another country and leave her children here. She has her own business here and her friends. She does not have another home country. Things were better in Greece 10 years ago, if loan sharks were able to do what they did to her daughter. She does not imagine what they can do now.
I put she is able to take the matter up under the Greek legal system. She agreed but said that until the court hearing is held she does not know what will happen. I put she can lodge a complaint with the police who would take action. She responded that the police are disinterested.
I put that she and her husband are able to obtain work in Greece. I put that 2 documents referring to [Relative A] were for incidents when they were in Australia. She said it was at the time they were going to return to Greece.
The second applicant, who was present when the applicant gave evidence, said that they received threats. I put the threats were for money owing. He said “we paid everything we owed”. I put that he has to take this up in the Greek legal system. He asked who is going to insure his family, to give him that assurance. I put to him that he is able to get a job in Greece. He responded that he has lost so much being in Australia. I asked what he feared on his return other than the issue of the debt and he said nothing.
The third applicant said he does not remember much about Greece. All he knows it is not safe. He does not feel safe as it is not a trustworthy country. I put that he can study in any other EU country.
The fourth applicant said that she was [age] years old when she left Greece. She does not trust the system. She feels that if she goes back to Greece, she will get raped and murdered. I put to her that she has no basis for such a fear. There are few reports of rapes and/or murders. She said she does not read Greek newspapers. I put to her that she watches television and uses the internet and there is no such coverage. She said she does see a future in Greece. She no longer speaks or reads Greek. I put relearning Greek may be difficult but it does not amount to serious harm.

I asked the applicant about two people she had indicated on her hearing attendance form who were to give evidence. She said that they had offered to give a character reference if she needed it. I said that she did not need a character reference. The witnesses were not called.
REASONS AND FINDINGS
On the basis of copies of Greek passports provided to the Department, I accept that the applicants are nationals of Greece and not nationals or citizens of any other country. As I accept that their country of nationality is Greece they have a legally enforceable right to enter and reside there, and that is the country against which their protection and complementary protection claims are to be assessed. I find that Greece is the applicant's “receiving country” for the purposes of s.36(2)(aa).
In assessing where the applicant is not excluded from Australia's protection by subsection 36(3) of the Act I note that:
Section 36(3) of the Act states:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

33. European Union (EU), is an economic and political union of 28 countries which allows free movement of goods, capital, services and people between member States. Those states include Austria, Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and (presently) the UK.

The Schengen Agreement abolished internal borders, enabling passport free movement between a large number of European countries. These include (but is not limited to) Belgium, France, Germany, and Luxembourg, the Netherlands, Portugal and Spain. The Treaty of Maastricht made nationals of all EU Member States citizens of the EU. The rights attached to this citizenship were confirmed by the EU Charter of Fundamental Rights signed and proclaimed in Nice in 2000, and the Council Directive 2004/38/BC on the right of citizens of the Union and their family members to move and reside freely (this entered into force in April 2006). With the Treaty of Maastricht, the right of free movement was recognised for all EU citizens, irrespective of whether they are economically active or not. This was recognised as one of the fundamental freedoms conferred on them by EU law (Article 21 of the Treaty on the Functioning of the European Union).
There are some restrictions on EU citizen movement. Every EU citizen has the right to reside in the territory of another EU country for up to 3 months without any conditions or formalities. After the first three months, the EU citizens right to reside in another EU country is subject to certain conditions depending on their status in the host EU country:
•workers and the self-employed, and their direct family members, have the result to reside without any conditions;
•jobseekers have the right to reside without any conditions for a period of six months and even longer, if they continue to seek employment in the host EU country and have a “genuine chance” of getting work. Jobseekers connects bought unemployment benefits from their home Member State for a minimum of three months while seeking work in another Member State, if they have first been registered as unemployed in their home Member State
•students and other economically non-active persons (e.g. unemployed, retired, etc), have the right to reside for longer than three months if they have for themselves and their families … financial means so as not become a burden on the host EU countries social assistance system as well as health insurance.
Additionally, after five years of continuous legal residence, EU citizens and their family members earn the right to reside on a permanent basis in the host EU country. Once acquired this right is no longer subject to the conditions applicable in the previous five years. Further, no EU Member State has the right to deny an EU citizen access to its labour market on the grounds of nationality. Community laws also ensure that EU citizens must receive equal treatment when they apply for a job in another Member State. Cross-border workers must also be treated in the same way as national employees. People moving to another EU country for work should know that family members have the same rights to education and social security as citizens in the host country.
When put to the applicant that she is able to move to an EU country to work and live and she did not do so, she agreed. I am satisfied that the applicant has not taken all possible steps to avail herself of a right to enter and reside in another EU country. I am satisfied the applicant has ‘statutory effective protection’ in the European Union and that the applicants are excluded from Australia's protection pursuant to subs. 36(3) of the Act.
The Department’s PAM3 Refugee Law Guidelines state that there are policy reasons for decision makers to undertake an assessment of an applicant’s claims against s.36(2)(a) and (aa) even where s.36(3) of the Act is applicable. I proceed to do so.
I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of RRT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
By way of background according to US State Department Report Human Rights Practices, Greece 2022,
Greece is a constitutional republic and multiparty parliamentary democracy. Legislative authority is vested in a unicameral parliament, which approves a government headed by a prime minister. In 2019 the country held parliamentary elections that observers considered free and fair. A government formed by the New Democracy Party headed by Prime Minister Kyriakos Mitsotakis leads the country. Police are responsible for law enforcement, border security, and the maintenance of order. They are under the authority of the Ministry of Citizen Protection, which is also responsible for prison facilities.
The government regularly took steps to investigate, prosecute, and punish officials who committed human rights abuses or engaged in corruption, whether in the security forces or elsewhere in the government. There were, however, reports and complaints from nongovernmental organizations and international organizations regarding government failures to effectively investigate allegations of abusive police practices and forced returns of asylum seekers and to hold those found responsible to account.
The constitution and law provide for an independent judiciary, and the government generally respected judicial independence and impartiality. Authorities respected court orders. Greece has an independent media, and a functioning democratic political system.
The Greek economic crisis[1] started in late 2009, triggered by the turmoil of the world-wide Great Recession, structural weaknesses in the Greek economy, and lack of monetary policy flexibility as a member of the Eurozone. The crisis included revelations that previous data on government debt levels and deficits had been underreported by the Greek government the official forecast for the 2009 budget deficit was less than half the final value as calculated in 2010, while after revisions according to Eurostat methodology, the 2009 government debt was finally raised from $269.3bn to $299.7bn, i.e. about 11% higher than previously reported. The crisis led to a loss of confidence in the Greek economy, indicated by a widening of bond yield spreads and rising cost of risk insurance on credit default swaps compared to the other Eurozone countries, particularly Germany. The government enacted 12 rounds of tax increases, spending cuts, and reforms from 2010 to 2016, which at times triggered local riots and nationwide protests. Despite these efforts, the country required bailout loans in 2010, 2012, and 2015 from the International Monetary Fund, Eurogroup, and the European Central Bank, and negotiated a 50% "haircut" on debt owed to private banks in 2011, which amounted to a €100bn debt relief.
[1] Greek government-debt crisis - Wikipedia
The OECD reports on Greece’s economy[2] as follows:
Greece has rebounded well from the COVID-19 crisis, generating strong employment growth. Increasing investments and exports, government support measures, implementation of the Greece 2.0 Recovery and Resilience Package and the reforms of the past decade have been supporting the economy. However, headwinds from surging energy prices and uncertainty following Russia’s war of aggression against Ukraine have slowed the recovery. Achieving and maintaining modest primary budget surpluses, better targeting energy support measures and maintaining public revenues while further broadening the tax base and improving its efficiency will further enhance Greece’s prospects of achieving an investment-grade sovereign debt rating. Maintaining the reform momentum, completing the restoration of banks’ health and continuing efforts to improve the business climate can ensure that a sustainable recovery continues over the longer term. This would also support Greece in further raising living standards as it adjusts to a changing climate and achieves net zero emissions. As elsewhere, the changing climate is already disrupting livelihoods and well-being in Greece. A well-chosen mix of carbon pricing, public infrastructure investments, raising buildings’ energy efficiency and moving transport onto low-emission modes can achieve emission cuts cost-effectively, while making people better off with improved housing quality and mobility. Engaging all stakeholders, maintaining a consensus and supporting vulnerable households affected by the green economy transition will help ensure progress continues into the longer term.
[2] Greece Economic Snapshot - OECD
The applicants lived in [Town 1], Island of Lesbos. The applicants are mother, father, one son and two daughters. The applicant and second applicant arrived in Australia in 2013, as holders of visitor visas and returned to Greece after a 3 month stay. Some few weeks later the applicant and second applicant both returned to Australia in January 2014, leaving their children with family in [Town 1] and the children later moved to Athens with their grandmother and other relatives. The children arrived in Australia in August 2014.
In her PV application the applicant claimed to have fled Greece because the Greek economy had collapsed, they were escaping unemployment, the economic situation was a matter of survival, taxes imposed by the state could not be paid for and their children will have no future in Greece. They came to Australia to secure their children’s future.
I accept that the second applicant worked in [industry 1] and the applicant and second applicant left Greece, during the then economic crisis in Greece, in order to work in Australia.
In regard to the theft of the second applicant’s tools, in her PV application the applicant stated that they had sold their assets, including her husband’s tools, when they came to Australia. In a pre-hearing submission to the Tribunal the applicant stated that they sold left over tools when they came to Australia.
At the Tribunal hearing the applicant stated that she and her husband placed all his tools in a special place, in order to have them when they returned. When it became known they would be going back to Lesbos, half the tools were stolen. They reported it to the police and the matter went to court. Those people paid a nominal amount, about ½ value of tools but they continued to threaten them, nevertheless. Her father-in-law reported they had threatened them and the police told them to make an official complaint for the matter to go to court. The accused did not appear in court and judgement was given in absentia. I put to the applicant that she was in Australia then. She said the court case was actioned by her father-in-law. I put that the court action nothing to do with her. She said they threatened her father-in-law and mother. I am satisfied that any threats made to the father-in-law, by the thieves of the tools, were not made for a refugee reason but for what the father in law had done, report the thieves to the police.
I have considered a record of offence lodged with [Police Station 1] dated [in] September 2017 stating that on [the day in September] 2017 [Relative A] lodged a complaint he was insulted and threatened outside the cemetery by [Mr C]. The applicant and her family in 2017 were in Australia. The document is about her father-in-law and makes no mention of the applicants, I place no weight on this document. It is of no probative value.
As for another record of offence lodged with [Police Station 1] dated [in] March 2017 by [Relative A] that on [a day in February] 2017 an unknown perpetrator broke into a building and removed various [tools], this document also is a complaint lodged by [Relative A] the applicant’s father-in-law and refers to an incident that occurred when the applicants were already in Australia. The document is about her father-in-law and makes no mention of the applicants, I place no weight on this document. It is of no probative value.
Therefore, I find that any threats made to the applicant’s in-laws were not made to the applicants or about the applicants and are not relevant to the applicant’s claims.
I do not accept that the applicant is a witness of truth.
Firstly, in her PV application, the applicant claimed that her husband had been [an occupation 1], who lost his job and there was no way that they could provide for their children so they sold their jewellery, vehicles and tools and came to Australia. I accept that the second applicant lost his job in Greece and at that time when the Greek economy had collapsed.
In a pre-hearing submission to the Tribunal the applicant claimed that the second applicant worked as [an occupation 1]. He lost money on a job. He took a loan from the bank. The business failed, he then borrowed money from an individual but in 2012 his assets were seized by the police/court. His assets were of higher value than the money he had borrowed. The couple opened a shop and the second applicant got a job and bought some goats that he sold. After an incident involving the fifth applicant they received threatening phone calls so they sold their jewellery and leftover tools, and came to Australia.
At Tribunal hearing, the applicant stated that her husband had a [company] and he lost a lot of money and was obliged to borrow money from loan sharks. They worked to pay the loans back but the loan sharks never stopped asking for more money. The fifth applicant was attacked by loan sharks. Even in Australia the loan sharks continued to threaten their relatives if they returned they would suffer harm.
When put to the applicant that she had not made this claim about continuously being threatened by loan sharks to the Department or even threatened by loan sharks, she responded that she sent paperwork and police reports to the Tribunal. I do not accept as plausible that a person who was threatened by loan sharks in Greece, who continuously came to her [business 1] and the threats continued when in Australia would not have mentioned this claim in her PV application.
Further, the applicant claimed they were sending some money to the loan sharks. She said “we paid them out” but they continued to demand money. When put to the applicant that they returned and did not report the loan sharks to the police, she did not comment.
I am of the view this claim of loan sharks pursuing the applicants for debts has been created in order to obtain the visa sought.
Secondly, in a pre-hearing submission to the Tribunal, the applicant claimed that the fifth applicant was sexually assaulted by a [Nationality 1] man in a playground. After the applicant took her child away, the applicant received threatening telephone calls so she did not report the incident to the police. The calls continued, telling her they should leave the area. Her daughter was then bullied by other children.
At the Tribunal hearing the applicant said that the loan sharks attacked the fifth applicant sexually. She reported it to the police and they did not take it further as the loan sharks were threatening them all the time. The applicant’s explanation for her omission of this claim of harm by the loan sharks, in her 2013 PV application, was not explained, when put to her. Instead the applicant provided a newspaper report in support of this claim.
A newspaper report, dated [in] April 2013, referred to [an age] year old mother reporting at [Police Station 1] indecent behaviour on her underage daughter. The article makes no mention of the name of the mother or the child. I place no weight on the newspaper report as identifying the applicant and the fifth applicant as the victim.
Notwithstanding the lack of reference to the mother’s name, the article then states that the nature of indecent action by [an age] year old [Nationality 1] man has not been established by the child’s mother and that valid sources reported that the child was playing with children and she was found near the man. The sources decided to report the incident to police. The applicant, in a submission to the Tribunal, stated that she did not lodge charges against the [Nationality 1] man because she was threatened. It is also contrary to the record of offence lodged with [Police Station 1] dated [in] April 2013 stating the applicant reported a complaint that [Mr B], a [Nationality 1 man], violated article 337PC for an act against the fifth applicant.
At the hearing when put to the applicant there were no reports or evidence that anything happened to the child, she said she did not go to the court. She stopped the proceedings. This is contrary to the newspaper article that stated that there was a lawsuit against the man for sexual abuse.
The applicant was unable to explain the inconsistencies. I place no weight on the newspaper report or the police record of offence as these documents are inconsistent with the applicant’s evidence. I do not accept that the fifth applicant was sexually abused by a [Nationality 1 man] in a park in 2013 or by loan sharks or that the applicant continued to receive threatening phone calls telling her they should leave their area, or that they would not be able to take their children.
Thirdly, the applicant and second applicant did not apply for a PV when they first arrived in Australia but did so 3 years later. Her explanation for the delay in applying for a PV was that initially they did not have any intention to stay. She also said that they had waited 3 years before applying for a PV because after 3 years she realised she was in danger. As no threats of harm were made against the applicants after they returned to Australia in 2014 and the claimed threats were in 2013, their delay in applying for a PV indicates a lack of a subjective fear of harm.

Fourthly, the applicants whilst claiming to have been threatened by loan sharks who attacked their youngest child in [Town 1 variant], first came to Australia at the end of 2013, returned to [Town 1 variant] and then came back to Australia.
The applicant claims their youngest daughter, the fifth applicant, was abused by those who threatened them, the loan sharks, but they left the children with family in [Town 1 variant] and travelled to Australia. When they returned from Greece to Australia they left their children in [Town 1 variant] and later Athens, before the children came to Australia some nine months later.
When put to the applicant that she was not concerned about the children being harmed as she left them in Greece, she said that she left to go overseas and work. They did not know anyone here and came to Australia. I accept that the applicant and the second applicant left Greece and came to Australia to work.
I satisfied that the applicant is not a witness of truth who has created her claims in order to obtain the visa sought.
I find therefore that:
- The second applicant lost his job/business, had debts and borrowed money in order to meet his liabilities. The money was repaid
- Loan sharks did not pursue the applicant and second applicant for monies owing for a debt
·The applicant and second applicant left Greece, after selling most of their assets, because they were unable to support their family
·The second applicant had his remaining tools stolen when in Australia and the Greek authorities found the persons responsible
- The fifth applicant was not attacked or harmed in Greece. No negative claims were made about the fifth applicant and she was not bullied by other children.
I have considered the applicants claims singularly and cumulatively. I am satisfied that the applicants did not suffer serious harm for reasons of their race, religion, nationality, membership of a particular social group or political opinion in Greece. I find that the applicant and the second applicant left Greece and came to Australia to work.
I am required to consider if the applicants will suffer serious harm on their return to Greece within a reasonably foreseeable future.
As I do not accept that the applicants were harmed by loan sharks in Greece I do not accept that there is a real chance the applicant’s will be harmed by loan sharks on their return to Greece within a reasonably foreseeable future.
The applicant believes that her children will remain in Australia if she and her husband return. I do not accept that were this situation to occur, that separation of the applicant and second applicant from their children amounts to serious harm as outlined in s.5J(5).
The applicant also fears for her children if they were to return to Greece. She has been in Australia for 10 years and the children do not speak Greek properly. The fourth applicant claims she does not speak Greek at all. I accept the children will lose a year of school if they were required to return. Losing a year of schooling does not amount to serious harm. I have no evidence before me to suggest that children who do not speak Greek properly or do not speak it at all suffer serious harm in Greece. I find that there is not a real chance the third, fourth and fifth applicants will suffer serious harm on their return to Greece within a reasonably foreseeable future for their lack of Greek language or losing a year of their schooling.
As for the third applicant not feeling safe in Greece as it is not a trustworthy country and the fourth applicant not trusting the system, this is mere speculation.
I have considered the applicants’ claims singularly and cumulatively. I am not satisfied that the applicants will suffer serious harm in Greece within a reasonably foreseeable future.
Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
I am required to consider if the applicants will suffer significant harm on their return to Greece within a reasonably foreseeable future.
The applicants are ethnic Greeks from [Town 1 variant]. The applicant and the second applicant left Greece in order to work in Australia. The applicant has started a business and the second applicant has been working in Australia. They do not claim to be unable to work in Greece now.
I accept that the children are studying in Australia and are progressing with their lives. I accept that they do not wish to leave Australia and do not see a future in Greece. I accept that they may well struggle with the Greek language and will lose a year of schooling but I do not accept that lack of fluent Greek or the loss of a year of schooling amounts to significant harm. I am satisfied there is not a real risk they will suffer significant harm, for their lack of Greek language skills or losing a year of schooling, within a reasonably foreseeable future on their return to Greece.
As for the fourth applicant’s belief that she will be raped and murdered in Greece, she was unable to explain the reason for such a belief. I find these claims mere speculation. I do not accept there is a real risk that the fourth applicant will be raped or murdered on her return to Greece within a reasonably foreseeable future.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, I am not satisfied that any of the applicants will be arbitrarily deprived of life, the death penalty will be carried out on any of them, any of them will be subjected to torture or cruel or inhuman treatment or punishment or any of them will be subjected to degrading treatment or punishment if they return to Greece now or in the reasonably foreseeable future.
Therefore, the applicants do not satisfy the criterion set out in s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
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. Accordingly, the applicants do not satisfy the criterion in s.36(2).
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.
…

[2024] AATA 824

11 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction