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

1. The applicant is a United Kingdom citizen, a man aged [age].

2. 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.

3. This is an application for review of that decision.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Background

12. The applicant is a [age] year old man from London, UK. He arrived in Australia on [date] March 2005, as the holder of a [temporary] visa. According to the decision record, a copy of which the applicant provided to the Tribunal, he lived in Australia unlawfully from 6 July 2011 to 3        January 2012. The applicant told the Tribunal that he has since held bridging visas, mostly without permission to work.

    Protection claims

13. The applicant wrote on Form 866C that he is not seeking protection as a refugee, but rather that he is ‘seeking complimentary [sic] protection so that I can apply for a Ministerial intervention on compassionate grounds to maintain my relationship with my daughter who is Australian […].

14. At hearing, and after the Tribunal explained the scope of the review, the applicant confirmed that he was seeking Ministerial intervention, and that he did not fear persecution or significant harm in the United Kingdom. However, he later expressed concern that he would suffer psychologically if he was removed to the UK and separated from his daughter.

    Evidence

15. The evidence before the Tribunal includes the following relevant material: -

    §The applicant’s protection visa application form received on 9 February 2017, with brief handwritten comments.

    §Identity documents: A copy of his birth certificate; a UK passport issued [in] 2013, valid for ten year; and a NSW driver licence.

    §Supporting documents:

    -Marriage certificate between the applicant and [Ms A], on 2 May 2012.

    -Birth certificate for the applicant’s daughter ]Miss A] ([DOB]).

    -Family Court of Western Australia minute of consent orders, dated [May] 2020; and court order dated [June] 2020.

    -13 photographs of the applicant and his [daughter].

    -Letter of 2 November 2023 from [Ms B], Senior Domestic & Family Violence Support Worker, [Organisation 1]

16. The applicant appeared before the Tribunal on 7 November 2023, to give evidence and present arguments. The hearing was conducted in English. The applicant is unrepresented in this matter. He did not provide any further materials or request the Tribunal to take evidence from any witness.

    Non-disclosure certificate

17. The Department file includes a certificate and notification under s.438(1)(b) of the Act, stating that the Tribunal must not disclose to the applicant information contained in certain folios of the Department file, as it was given in confidence. The Tribunal wrote to the applicant on 31 October 2023, inviting his comment on the validity of the document. It advised him that the materials concerned various family- and work-related matters which were not relevant to his eligibility for a protection visa. The applicant did not reply substantively, but asked for a summary of the information, which the Tribunal declined.

18. 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

19. 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

20. 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).

21. 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

22. 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).

23. 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).

24. 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]

25. 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).

26. In sum, the Tribunal is not satisfied that the applicant’s removal from Australia to the UK gives rise to a real risk that he will be subjected to significant harm in the reasonably foreseeable future – that is, any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

27. In other words, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to UK, there would be a real risk that he will suffer significant harm.

28. 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

29. 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).

30. 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).

31. 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

32. 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.

33. 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.

34. 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.

35. 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.

36. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s.417 and s.501J)’ and will refer the matter to the Department, on the basis that there are circumstances warranting further investigation by the Department before any referral to the Minister.[4]

    [4] President’s Direction of 1 August 2018, paragraph 16.2

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    
    
    

    ATTACHMENT – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Subsection 36(2) is qualified by subsection 36(3), which states: ‘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.’ However, his does not apply if the person faces a relevant risk of harm in the third country, or a risk of being refouled to a country where there is a relevant risk of harm: 36(4), (5) or (5A).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.