1805385 (Refugee) - [2023] AATA 4754

1805385 (Refugee) [2023] AATA 4754 (8 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805385
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:James Silva
DATE:8 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 November 2023 at 4:57pm

CATCHWORDS
REFUGEE – protection visa – United Kingdom – no protection claims – psychological harm due to separation from daughter – compassionate grounds to maintain relationship with daughter – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 417, 438, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZRSN v MIAC [2013] FCA 751
GLD18 v MHA [2020] FCAFC 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a United Kingdom citizen, a man aged [age].
He most recently entered Australia as the holder of a [temporary visa]. On 5 June 2017, he applied for a protection (class XA) visa. On 9 February 2018[1], a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa, under s.65 of the Migration Act 1958 (Cth) (the Act).
[1] The Department decision record gives the date as ‘2017’, an apparent clerical error.
This is an application for review of that decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1805385 (Refugee)

Details

AGLC: 1805385 (Refugee) [2023] AATA 4754
Case: [2023] AATA 4754
Decision Date: 8 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, who is unrepresented, did not present express claims for refugee status or complementary protection. The dispute centred on whether the applicant met the criteria for protection obligations under Australian law, specifically concerning fears of persecution in the United Kingdom and significant harm if removed from Australia.

The Tribunal was required to determine if the applicant met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth), which involves a fear of persecution for specific reasons. Additionally, the Tribunal had to consider the alternative criterion of complementary protection under s 36(2)(aa), which requires a fear of significant harm. The applicant also requested that his case be referred to the Minister for consideration under s 417 of the Act on compassionate grounds, primarily due to his relationship with his Australian citizen daughter.

In its reasoning, the Tribunal found that the applicant had made no claims of fearing persecution in the United Kingdom, nor was there any material to suggest such a fear. Consequently, the Tribunal was not satisfied that the applicant met the refugee criterion. Regarding complementary protection, the Tribunal determined that the applicant's stated concern about psychological harm due to separation from his daughter upon removal from Australia did not constitute "significant harm" as defined by the Act, referencing Federal Court decisions. The Tribunal also noted that the daughter's interests, while relevant to Ministerial intervention, were not the focus of the protection visa assessment.

The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa under either s 36(2)(a) or s 36(2)(aa). While acknowledging the relevance of the applicant's parental relationship with his Australian citizen daughter and the potential for Ministerial intervention under s 417, the Tribunal found that the provided information was limited. The Tribunal affirmed the decision that the applicant did not meet the criteria for protection obligations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal is satisfied that the information was provided by a third party in the expectation that it would be treated as confidential, and that the s.438 certificate is valid. As noted above, the information is not relevant to this decision.CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS The applicant has presented no express claims that address the refugee criterion or his eligibility for complementary protection. However, he is unrepresented and does not appear familiar with migration law. The Tribunal has therefore considered whether there are any implied claims with respect to these criteria.REFUGEE CRITERION The applicant has made no claims to fear persecution in the UK, for any of the reasons set out in s.5J(1)(a), or indeed for any reason at all. There is none apparent on the material before the Tribunal. The Tribunal finds that he does not fear, and that there is no real chance, of the applicant suffering serious harm for one or more of the reasons in s.5J(1)(a). The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).COMPLEMENTARY PROTECTION Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The applicant did not present any claims to fear significant harm in the UK. His reference to ‘complimentary’ protection on Form 866C was, in context, a request for humanitarian consideration of his case, rather than ‘complementary protection’ within the meaning of s.36(2)(aa). During the course of the hearing, the applicant commented that he would suffer psychologically if he was removed from Australia to the UK, and as a result, separated from his daughter. As discussed at hearing, the applicant’s separation from his daughter following his removal from Australia, and any associated psychological harm, do not amount to ‘significant harm’ within the meaning of s.36(2)(aa). Having regard to the Federal Court’s reasoning in SZRSN v MIAC[2] and GLD18 v MHA[3], separation from a person’s family members in Australia, where the claimed harm arises from the act of removal itself, does not meet the definitions of ‘significant harm’ in s.36(2A), as it does not involve ‘acts or omissions’ that inflict the harm.[2] SZRSN v MIAC [2013] FCA 751 at [47]–[49][3] GLD18 v MHA [2020] FCAFC 2 at [36]–[50], [94] The applicant also commented that his daughter will suffer if he is required to depart Australia. However, as the Tribunal explained at hearing, the focus of this review is on whether Australia has protection obligations in respect of him, for harm to which he may be subjected. The interests of his daughter, including any psychological impact on her as a result of his removal from Australia, do not fall within the scope of this review (though they may be relevant humanitarian considerations relevant to Ministerial Intervention. Furthermore, for the reasons stated above, harm suffered by the applicant (or his family members) due to their separation, as a consequence of his removal from Australia, is not ‘significant harm’ within the meaning of s.36(2)(aa).

Decision

Reasons for decision

The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).Conclusion For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).Ministerial Intervention The applicant requested the Tribunal to refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The main basis for the request is the applicant’s relationship with his daughter [Miss A], born in Sydney in [year] (currently [age] years old). The applicant provided to the Department a copy of his marriage certificate, dated 2 May 2012 and [Miss A]’s birth certificate. He submitted to the Tribunal a copy of a Family Court of Western Australia order dated [in] June 2020, regulating parenting responsibilities; 13 photographs showing him and [Miss A] (undated, but evidently taken over a period of time); and a letter of support dated 2 November 2023 from [Ms B], Senior Domestic and Family Violence Support Worker, [Organisation 1]. [Ms B] gave a general character reference for the applicant and attested to his ‘positive and meaningful’ relationship with his daughter. She stated that the daughter’s ‘emotional and psychological well-being is closely tied to her father’s presence in her life’. The letter also refers to the applicant’s integration into the local community, without details. At hearing, the applicant said that his ex-partner has remarried and moved, together with the daughter, from Western Australia to [NSW]. They are seeking a variation of the court order to accommodate this new situation and enable him to have more frequent contact with his daughter. He expressed frustration that his current visa status (which does not have work permission) and the prospect of his removal from Australia, could jeopardise his efforts to develop this relationship, and could be detrimental to his daughter. In the Tribunal’s view, a non-citizen’s parental relationship with an Australian citizen child and that child’s best interests are highly relevant considerations. The applicant’s oral evidence, the December 2020 court order, the photographs and [Ms B]’s letter provide useful but limited insights into the circumstances in this case. As the Tribunal noted at hearing, other information – such as how the relationship has evolved over time (including when the parties have lived in different States), assessments of [Miss A]’s wellbeing and interests, and future plans – would also be important. Also, the applicant’s past conduct and migration history may be relevant context for considering such a request.

Ratio Decidendi

Legal Principle Established

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