1807182 (Refugee) [2022] AATA 600 (25 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1807182
COUNTRY OF REFERENCE: Hungary
MEMBER:Michael Hawkins AM
DATE:25 January 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal has no jurisdiction in respect of the first-named applicant.
The Tribunal affirms the decision not to grant the second and third-named applicants a protection visa.
Statement made on 25 January 2022 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Hungary – race – Gypsy/Roma – member of the family unit – societal exclusion and segregation – statutory effective protection in a European Union country – right to enter or reside – fear of return to Hungary by another European Union country – decision under review affirmed
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 6 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Hungary, applied for the visas on 6 January 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The first-named applicant passed away [in] August 2019, that is, after she lodged the application for review of the decision of the delegate. Accordingly, the Tribunal has no jurisdiction to review the application by the late [applicant’s name], because the review right is personal to the review applicant.
The second-named applicant, the husband of the first-named applicant, departed Australia [in] March 2021 and has not returned to Australia. Section 36(2) of the Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia. As Department of Home Affairs records which are available…
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.
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1807182 (Refugee) [2022] AATA 600
Case
[2022] AATA 600
Decision Date
CaseChat Overview and Summary
The case involved two applicants, a son and his step-father, who sought protection visas in Australia. They applied as members of the same family unit as the first-named applicant, who was the son's mother and the step-father's wife. The initial application was refused by a delegate of the Minister for Home Affairs, who found that the first-named applicant had access to statutory effective protection in another European Union country. The applicants sought merits review of this decision. Tragically, the first-named applicant passed away during the review process. The Tribunal was required to determine whether the remaining applicants met the refugee criterion or were entitled to complementary protection.
The legal issues before the Tribunal were whether the applicants qualified as refugees under the Migration Act 1958, and if not, whether they met the criteria for complementary protection. Specifically, the Tribunal had to consider if there was a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if effective protection measures were available in a receiving country. For complementary protection, the Tribunal needed to assess if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to a receiving country, the applicants faced a real risk of suffering significant harm.
The Tribunal found that it had no jurisdiction concerning the first-named applicant due to her passing. For the second and third-named applicants, the Tribunal affirmed the delegate's decision to refuse the protection visas. The Tribunal reasoned that as Hungarian nationals and European Union citizens, the applicants had the right to enter and reside in another EU country, which provided them with statutory effective protection. The Tribunal concluded that there was not a well-founded fear that another EU country would return them to Hungary, nor were there substantial grounds to believe they would suffer significant harm as a necessary and foreseeable consequence of relocating within the EU. Therefore, Australia did not have protection obligations towards them under section 36(3) of the Act. The Tribunal noted that while EU citizens could be expelled on grounds of public policy or security, this would only occur in cases of very serious threats, which were not considered applicable to the applicants. The Tribunal expressed sympathy for the applicants' situation and suggested exploring other visa options or applying for Ministerial Intervention.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the first-named applicant and in respect of the second and third-named applicants, the decision under review should be affirmed.Background: The second-named applicant (“[named]”) is [an age]-year-old Hungarian national and the husband of the first-named applicant, who was a Hungarian national. The applicant (“[named]”) is [an age]-year-old Hungarian national and the son of the first-named applicant. The second-named applicant is the step-father of the applicant. The applicant’s father continues to live in Hungary. The applicants first arrived in Australia [in] May 2015 as holders of [Visitor] visas. The applicant has remained onshore since, whereas the second-named applicant departed Australia [in] March 2021 and does not hold a visa which enables him to return. On 6 January 2016, the applicants applied for protection visas on the basis of being members of the same family unit as the first-named applicant. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 6 March 2018. The delegate was not satisfied that the first-named applicant had taken all possible steps to avail herself of her right, as a Hungarian national, to enter and reside in another EU country. Therefore, the delegate found that the first-named applicant has access to statutory effective protection in a third country as set out in subsection 36(3) of the Act. On 16 March 2018, the applicants applied for merits review of the delegate’s decision to refuse to grant their application for protection visas. The first-named applicant passed away [in] August 2019.Claims: The second-named applicant and the applicant did not make their own claims for protection in their protection visa application forms. The applicant made separate claims for protection to the Tribunal during the hearing. The first-named applicant’s claims are set out in the protection visa application forms, written claims and the delegate’s decision. The first-named applicant claimed she had been subjected to discrimination, harassment and humiliation almost everyday because of her Gypsy/Roma background. She claimed to have experienced verbal abuse and pulled by her arms from Hungarian citizens and the authorities due to her Roma background. The first-named applicant claimed there is deep rooted hatred against Gypsies in Hungary, including in government departments. She claimed the authorities do not protect Gypsies and instead they take part in the abuse, thereby making the harassment acceptable. The first-named applicant claimed to have fled to Australia, because she cannot protect herself and her family anymore and she feared for their lives. Evidence: The Tribunal has before it a range of material, including, relevantly: (a)the applicants’ protection visa application forms, which were received by the Department on 6 January 2016; (b)the applicants’ identity documents being copies of their Hungarian passports, a marriage certificate, the first-named applicant’s EU driver licence and passport photographs; (c)the protection visa decision record dated 6 March 2018 (delegate’s decision), a copy of which has been provided to the Tribunal by the applicant; (d)the application for review form dated 16 March 2018;(e)Department file [number] concerning the applicants’ protection visa application, which includes all documents submitted by the applicants in support of their protection visa application, including untranslated documents written in the Hungarian language;(f)all documents submitted to the Tribunal in support of the applicants’ review application, including a statement from [the] applicants’ representative’ dated 24 March 2018 and the death certificate of the first-named applicant; and (g)country information on Hungary, as set out below. Country of reference:
Evidence
Evidence Before The Court
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 The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the first-named applicant and in respect of the second and third-named applicants, the decision under review should be affirmed.Background: The second-named applicant (“[named]”) is [an age]-year-old Hungarian national and the husband of the first-named applicant, who was a Hungarian national. The applicant (“[named]”) is [an age]-year-old Hungarian national and the son of the first-named applicant. The second-named applicant is the step-father of the applicant. The applicant’s father continues to live in Hungary. The applicants first arrived in Australia [in] May 2015 as holders of [Visitor] visas. The applicant has remained onshore since, whereas the second-named applicant departed Australia [in] March 2021 and does not hold a visa which enables him to return. On 6 January 2016, the applicants applied for protection visas on the basis of being members of the same family unit as the first-named applicant. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 6 March 2018. The delegate was not satisfied that the first-named applicant had taken all possible steps to avail herself of her right, as a Hungarian national, to enter and reside in another EU country. Therefore, the delegate found that the first-named applicant has access to statutory effective protection in a third country as set out in subsection 36(3) of the Act. On 16 March 2018, the applicants applied for merits review of the delegate’s decision to refuse to grant their application for protection visas. The first-named applicant passed away [in] August 2019.Claims: The second-named applicant and the applicant did not make their own claims for protection in their protection visa application forms. The applicant made separate claims for protection to the Tribunal during the hearing. The first-named applicant’s claims are set out in the protection visa application forms, written claims and the delegate’s decision. The first-named applicant claimed she had been subjected to discrimination, harassment and humiliation almost everyday because of her Gypsy/Roma background. She claimed to have experienced verbal abuse and pulled by her arms from Hungarian citizens and the authorities due to her Roma background. The first-named applicant claimed there is deep rooted hatred against Gypsies in Hungary, including in government departments. She claimed the authorities do not protect Gypsies and instead they take part in the abuse, thereby making the harassment acceptable.
Decision
Reasons for decision
The Tribunal finds there is not a well-founded fear that a third country would return the applicant to Hungary, given his right to enter and reside as a European citizen. The Tribunal acknowledges European Union citizens may be expelled by their new country on grounds of public policy or public security, but only in cases of very serious threat.[18] The Tribunal does not consider this would apply to the applicant and finds the chance of him being returned to Hungary as too remote to amount to a well-founded fear.[18] >The Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in another European Union country there would be a real risk of him suffering significant harm. Having considered the country information referenced above in relation to the operation of the European Union, the Tribunal also finds there is not a well-founded fear that another European Union country would return him to Hungary or another country where there are substantial grounds for believing there is a real risk of significant harm. Therefore, as found above, the Tribunal finds s.36(3) applies such that Australia does not have protection obligations in respect of the applicant.The Tribunal was sympathetic to the applicant’s plight, especially having regard to him having come to Australia with his mother who is now deceased and to the fact of him having so many of his family in Australia. The Tribunal discussed with the applicant and the representative that they might consider whether there are other visa options available to the applicant, to be applied for either onshore or offshore, to regularise his residence or to consider an application for Ministerial Intervention.Overall 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. DECISIONThe Tribunal has no jurisdiction in respect of the first-named applicant.The Tribunal affirms the decision not to grant the second and third-named applicants a protection visa.Michael Hawkins AMMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the first-named applicant and in respect of the second and third-named applicants, the decision under review should be affirmed.Background: The second-named applicant (“[named]”) is [an age]-year-old Hungarian national and the husband of the first-named applicant, who was a Hungarian national. The applicant (“[named]”) is [an age]-year-old Hungarian national and the son of the first-named applicant. The second-named applicant is the step-father of the applicant. The applicant’s father continues to live in Hungary. The applicants first arrived in Australia [in] May 2015 as holders of [Visitor] visas. The applicant has remained onshore since, whereas the second-named applicant departed Australia [in] March 2021 and does not hold a visa which enables him to return. On 6 January 2016, the applicants applied for protection visas on the basis of being members of the same family unit as the first-named applicant. The application was refused by a delegate of the Minister for Home Affairs in a decision made on 6 March 2018. The delegate was not satisfied that the first-named applicant had taken all possible steps to avail herself of her right, as a Hungarian national, to enter and reside in another EU country. Therefore, the delegate found that the first-named applicant has access to statutory effective protection in a third country as set out in subsection 36(3) of the Act. On 16 March 2018, the applicants applied for merits review of the delegate’s decision to refuse to grant their application for protection visas.