1807182 (Refugee)

[2022] AATA 600

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

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 866.211

CASES

Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
V856/00A v MIMA (2001) 114 FCR 408
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423

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

1. 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).

2. 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”).

3. 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.

4. 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 to the Tribunal indicate that the second-named applicant is not in Australia, and the third-named applicant has confirmed that the second-named applicant departed Australia,  the Tribunal is satisfied that the second-named applicant is not in Australia and therefore does not satisfy the requirements of s.36(2) and can not be granted a protection visa and the Tribunal consequently affirms the decision not to grant the second-named applicant a protection visa.

5. The third-named applicant (“the applicant”) appeared before the Tribunal on 24 January 2022 by videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hungarian and English languages.

6. The applicant was very ably represented in relation to the review by his uncle who also attended the Tribunal hearing with the applicant by videoconference.

7. The applicant had applied for the protection visa on the basis that he was a member of the family unit of the first-named applicant (being her son).

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. 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:

15. 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.

16. The applicant (“[named]”) is [an age]-year-old Hungarian national and the son of the first-named applicant.

17. The second-named applicant is the step-father of the applicant.

18. The applicant’s father continues to live in Hungary.

19. 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.

20. 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.

21. On 16 March 2018, the applicants applied for merits review of the delegate’s decision to refuse to grant their application for protection visas.

22. The first-named applicant passed away [in] August 2019.

    Claims:

23. 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.

24. The first-named applicant’s claims are set out in the protection visa application forms, written claims and the delegate’s decision.

25. 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.

26. 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.

27. 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:

28. 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:

29. The applicants claim to be citizens of Hungary. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Hungary is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

30. The Tribunal considered whether the applicants are excluded from Australia’s protection obligations under s.36(3) of the Act and made a determination set out below.

    Hearing:

31. The applicant appeared before the Tribunal on 24 January 2022 by videoconference to give evidence and present arguments.

32. He attended in the company of his uncle who also acted as his representative.

33. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as refugees or be a person entitled to Complementary Protection.

34. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Hungary. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Hungary. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

35. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Hungary.

36. The Tribunal discussed with the applicant his mother’s claims as summarised in the protection visa application, written claims and the delegate’s decision. He confirmed that those claims as so summarised were not in dispute – that they were his mother’s claims. The Tribunal confirmed that at the time of making the application, the applicant had no claims of his own and was relying on his membership of his mother’s family unit.

37. The representative summarised the applicant’s new claims. He stated that the applicant had been in Australia now for some time. He stated that the applicant has no family in Hungary. He stated that the applicant has Romany ethnicity and will suffer discrimination and harassment as his mother did.

38. The applicant offered that he had a job in Australia and that he worked as [an occupation 1]. He lived on his own in rented accommodation. He paid his taxes and had never been in trouble. He said that he had a circle of friends in Australia.

39. The applicant stated that he had family in Australia, being all of his mother’s side, including a [specified relatives].

40. His only family in Hungary was his natural father whom he only had contact with once a year by FaceTime. He knew he had cousins in Hungary but had no contact with them.

41. The applicant stated that he had no friends in Hungary when he lived there because he was a gypsy. He said that he was picked on at school and that his mother would attend the school to inquire as to why he was being discriminated against.

42. The representative stated that the applicant had come to Australia as a boy. The Tribunal commented that the applicant was [age] years of age when he arrived in Australia. The representative stated that he lived a large part of his life in Australia. The Tribunal noted that the applicant was now [age] years of age, and whilst he spoke excellent English, he had requested a Hungarian interpreter which the Tribunal took to understand that the applicant still spoke Hungarian.

43. The representative spoke of his concerns for his nephew, worried that if he had to return to Hungary or another part of Europe, that he would be alone and that that may impact his mental health and he could become depressed. He reiterated that he had family here in Australia.

44. The Tribunal spoke of its concerns that Hungary was a part of Europe, and that as such, the applicant was also a citizen of the European Union, and having free movement between the member states of that Union. If it could be established that the applicant had a right to enter and reside within another country within Europe, then it may be that he is not a person to whom Australia has protection obligations.

    Assessment of claims and evidence, and findings:

45. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

46. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

47. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

48. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

49. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

50. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

51. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

52. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

1. The Tribunal noted that whilst the applicant and his mother and stepfather arrived in Australia in May 2015, they had not applied for protection until December 2015.

2. The Tribunal noted that the applicant’s mother had made the application and that he was a dependent upon it. Accordingly, the Tribunal made no adverse findings in relation to the applicant as a consequence of that delay.

3. The Tribunal has had regard to the following country information on Hungary relevant to the applicants’ claims.

4. According to Freedom House, Roma are the largest ethnic minority in Hungary.[3] Minority Rights Group International reports that unofficial estimates of the Roma population range from 250,000 to 800,000.[4]

   [3] Freedom House, ‘Freedom in the World 2021: Hungary’ (3 March 2021).

   [4] Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples – Hungary: Roma’ (January 2018).

5. Multiple sources indicate that Roma face widespread discrimination, societal exclusion and segregation.[5] According to reports by Minority Rights Group Europe and the Idetartozunk Association, based on focus group interviews, “everyday prejudices [are] widespread, regardless of residence, segregation, education or social status” and the media in Hungary has “serious responsibility for the discriminatory attitudes of the majority”.[6]

   [5] Human Rights Watch, ‘World Report 2021: Events of 2020: Hungary’ (13 January 2021); Freedom House, ‘Freedom in the World 2021: Hungary’ (3 March 2021); Hungarian Civil Liberties Union and Civic Roma Women of Bodva-volgy, ‘Joint Submission to the 3rd Cycle of the Universal Periodic Review by Civil Society Organisations Containing Follow-Up Information on the Previous Reports of the Working Group on the Universal Periodic Review of Hungary’ (19 July 2021) p. 4.

   [6] Minority Rights Group Europe and Idetartozunk Association, ‘Roma in Hungary: The Challenges of Discrimination’ (1 March 2021) p. 2.

6. Roma are also reported to be subject to violence, threats of violence or hate crimes, including from far-right extremist groups.[7]

   [7] Freedom House, ‘Freedom in the World 2021: Hungary’ (3 March 2021); United States Department of State, ‘Country Reports on Human Rights Practices for 2020: Hungary’ (30 March 2021) p. 2; Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples – Hungary: Roma’ (January 2018); Jacobin, ‘The Decline of Democracy in Hungary is a Troubling Vision of the Future’ (June 2020).

7. Minority Rights Group International reports that racist violence and hate speech against Roma in Hungary “have been sustained by the continued hostility Roma face from police forces and officials, reflected in persistent discriminatory practices, including ethnic profiling and fines for even the most minor infractions”.[8]

   [8] Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples – Hungary: Roma’ (January 2018).

8. Reports note there is a lack of trust between the police and Roma communities because of the persecution by “[m]any” Roma that the police are unreliable when the victim of the crime is of Roma descent and because of the “over-polic[ing]” of administrative offences when the perpetrator is of Roma descent.[9] Roma individuals have reportedly been fearful of coming forward to police when a violent act was committed against them as “not only [would the police] neglect the report,” but the assailant would “take revenge and the police would still not defend them”.[10]

   [9] Hungarian Civil Liberties Union and Civic Roma Women of Bodva-volgy, ‘Joint Submission to the 3rd Cycle of the Universal Periodic Review by Civil Society Organisations Containing Follow-Up Information on the Previous Reports of the Working Group on the Universal Periodic Review of Hungary’ (19 July 2021) p. 11.

   [10] Hungarian Helsinki Committee, ‘Addendum to the Submission by the Hungarian Helsinki Committee Regarding the Eighteenth to Twenty-Fifth Periodic Reports of Hungary’ (2019) p. 13.

9. The applicant spoke of discrimination he had suffered at school and that he had few friends because of him being considered a gypsy. He was concerned about suffering the same way his mother had when she was in Hungary.

10. His mother’s claims referenced discrimination and humiliation on a daily basis and that she had been grabbed by the shoulders once.

11. Her claims stated that fearing for their lives, she fled to Australia. It is noted that she came to Australia given her mother and brother had been here since 2012.

12. The representative spoke of discrimination and harassment. He said that the applicant will be identified as a gypsy by virtue of his surname.

13. The country information supports the contention that Hungarians of Romany ethnicity may face discrimination and harassment, but apart from one instance of being grabbed by the shoulders, the applicant cannot state that he or his mother have suffered serious harm. Discrimination as described falls short of any definition of serious or significant harm.

14. The representative said the applicant will be all alone if he was required to move back to Hungary or another part of Europe. This was of concern to the applicant. The Tribunal noted that his father was in Hungary and whilst there was clearly no close relationship, there was a relationship nonetheless and one would expect that a father would offer support to his son, at least sufficient for him to get on his feet. The applicant also enjoyed strong emotional support from his family in Australia and that support and connection would not cease if he was required to resettle elsewhere.

15. The Tribunal discussed the need to consider whether the provisions of s.36(3) were enlivened.

    Do the applicants have the right to enter and reside in another EU country?

16. The Tribunal explained to the applicant that it had to consider whether or not they have a presently existing right to enter and reside in a third country, being another EU country, within the meaning of s.36(3), and that if they did, then they may be excluded from Australia’s protection obligations, unless the Tribunal was satisfied that they have a well-founded fear of persecution in another EU country or that there are substantial grounds to believe there is a real risk they would suffer significant harm in that country, or that they have a well-founded fear of being removed from that country to Hungary.

17. There is no requirement under s.36(3) that moving to the third country for protection be reasonable or practicable, only that they have a present right to enter and reside and have taken all possible steps to avail themselves of a right to enter or reside in that country. In considering ‘all possible steps’, that should not be read down and should not be construed as all ‘reasonably practicable’ steps. The Tribunal must be satisfied there is at least one possible step the applicant could have taken. The right referred to must be a presently existing right that is available at the time of decision, not a right that could be acquired at that time.

18. Subsection 36(3) of the Act provides that:

    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.

19. Section 36(3) requires a right to enter and reside in another country; that right may be temporary or permanent, and there is no restriction on the manner in which the right arises or is expressed. The section does not refer to, or presuppose, a legally enforceable right under domestic law. The issue was considered by the Full Federal Court in MIAC v SZRHU, where the Court held that it is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[11] The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant “and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.”[12] The right referred to in s.36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy.

    [11] MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).

    [12] V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.

20. According to the European Commission, the border-free Schengen Area guarantees, pursuant to the Schengen Agreement, free movement within a territory of 26 countries to more than 400 million EU citizens. Free movement of persons enables every EU citizen to travel, work and live in an EU country without special formalities. Schengen underpins this freedom by enabling citizens to move around the Schengen Area without being subject to border checks. Today, the Schengen Area encompasses most EU countries, including Hungary, as well as non-EU States Iceland, Norway, Switzerland and Liechtenstein.[13]

    [13] European Commission, ‘Schengan Area’ < European Commission, ‘Europe Without Borders: The Schengen Area’ (September 2020) <

21. The Tribunal noted, as had the delegate, that in 2014, more than 14 million EU citizens lived in member states not of their origin.

22. EU nationals staying in another EU country for less than three months require a valid identity card or passport. Beyond three months, depending on the country, may require registration with a relevant authority and to be issued with a residence document.[14] Countries such as Sweden and France do not require registration.[15]

    [14] Europa, ‘Residence Rights’ (17 May 2021) < Europa, ‘Reporting presence fort short stays under 3 months’ (25 May 2021) < Reporting presence for short stays (<3 months) - Your Europe (europa.eu)>.

23. The Tribunal also noted that there are exceptions to the right to free movement and that each country might consider limitations based on considerations of public security, public health and public policy and that temporary restrictions might be placed on the residents of certain member states from time to time. The Tribunal was not aware of any such restrictions being applicable to nationals of Hungary.

24. The Tribunal asked the applicant whether he had a current passport. The applicant confirmed that he did have a current Hungarian passport.

25. The Tribunal invited the applicant and representative to comment on that country information.

26. The representative provided a considered response, firstly advising that Germany and Spain consider all Hungarians to be gypsies. The residents of those two countries treat Hungarians differently as a consequence.

27. The representative spoke of the treatment of refugees in those countries. The Tribunal noted and explained that the applicant would not be considered a refugee as such as he is a citizen of the EU with a right to enter and reside there. The representative agreed that it is not a case of the applicant facing harm in the other European countries, but being treated differently.

28. The representative also spoke of his worry about uncertainty. Asked to explain, he said that any given country could change its mind about Hungary at any time and expel its Hungarian citizens. He said that Hungary could be considered a rogue state and cited an example of Hungary having legislated to make homosexuality illegal which might cause difficulties with other countries. The Tribunal stated that it could not consider hypothetical situations – that a country can never guarantee protection to returnees forever. The representative accepted that.

29. The Tribunal was satisfied that the applicant has the right to enter and reside in another EU member state, in that he has a liberty, permission or privilege lawfully given’ which has not been withdrawn.[16] The Tribunal is satisfied that there is no presently existing prohibition or law relative to Hungary which might impact the exercise of the applicant’s right to so enter and reside.”[17]

    [16] MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).

    [17] V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.

30. The first-named applicant stated in her claims that she fled Hungary for Australia. It is apparent that she travelled to Australia by reason that her mother, brother and sister were already in Australia. The applicant travelled with her. Accordingly, the Tribunal finds that the applicant has not taken all available steps to avail himself of the right to enter and reside in countries such as Sweden or France or any of the other European Union member states where he has the right to establish residence. To this extent, the Tribunal finds that s.36(3) applies.

31. Subsections (4)(a) and (5) of s.36 respectively provide that subsection (3) does not apply in relation to a country:

    ·if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    ·if the non-citizen has a well-founded fear that:

    othe country will return the non-citizen to another country; and

    othe non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

32. The representative had made impassioned pleas that the applicant will be treated differently as everyone will recognise him as a gypsy. Even if the Tribunal allowed this argument for Germany and Spain, the representative acknowledged that he would not be subjected to real harm but would be treated differently.

33. The Tribunal has no country information to suggest that Hungarians of Romany ethnicity would be treated differently or be discriminated against or be harassed outside of Hungary and the applicant and representative did not produce any country information to corroborate that claim.

34. The representative talked in hypotheticals about the applicant being returned to Hungary in the event that Hungary might be suspended from the EU. There is no country information available to the Tribunal that suggests there is any real risk or likelihood of that happening now or in the reasonably foreseeable future.

35. Subsections (4)(b) and (5A) provide similar qualifications to s.36(3) on complementary protection grounds.  Under these provisions, s.36(3) does not apply if:

    • the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen availing him or herself of the right to enter and reside another country (‘the third country’), there would be a real risk of the non-citizen suffering significant harm; or
    • the non-citizen has a well-founded fear that that the third country will return him or her to another country in respect of which there are substantial grounds for believing that there is a real risk the non-citizen will suffer significant harm (as a necessary and foreseeable consequence of availing him or herself to the right to enter and reside in the third country).

36. 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.

37. 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:

38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

    DECISION

39. The Tribunal has no jurisdiction in respect of the first-named applicant.

40. The Tribunal affirms the decision not to grant the second and third-named applicants a protection visa.

    Michael Hawkins AM
    Member

    
    

    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.

    …