1820805 (Refugee)

[2020] AATA 895

1820805 (Refugee) [2020] AATA 895 (6 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820805

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Shahyar Roushan

DATE: 6 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a protection visa.

The Tribunal does not have jurisdiction with respect to the other applicant on the basis that there is no valid application for review.

Statement made on 06 April 2020 at 10:20am

CATCHWORDS
REFUGEE – protection visa – Iraq – Federal Circuit Court remittal – religion – Christian – particular social group – widowed Christian women in Iraq – moderate risk of official and societal discrimination and violence – right to enter and reside in a third country – Greece – implications of the EU’s temporary restrictions on non-essential travel in response to the COVID-19 pandemic – racially motivated violence against migrants and refugees – fear of Black Shirts and other right-wing extremist groups – access to health care services in light of the COVID-19 pandemic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMAC v SZRHU (2013) 215 FCR 35
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

   Background

2. The first named applicant (the applicant) is a [age]-year-old national of Iraq. She is Christian and of Armenian ethnicity. She departed Iraq with the second named applicant (the applicant’s husband) and their [children] in 1994 and, following a short stay in [Country 1], moved to Greece, where she continued to reside.

3. The applicant’s Iraqi passports contain a number of ‘Family Reunification’ and ‘Residence Permit for Family Reunification’ visas, dated between 2004 and 2008; and a ‘Ten-Year Residence Permit’, valid [from] 2012 [to] 2022.

4. The applicant husband’s Iraqi passports show a number of short term ‘Employment’ visas issued between 2003 and 2008; two ‘Residence Permit for Exceptional Reasons’ visas issued between 2008 and 2010; and a ‘Ten-Year Residence Permit’, valid [from] 2010 [to] 2020.

5. Following their daughter’s move to Australia, the applicant and her husband travelled to Australia in June 2014 on visitor visas. Subsequently, one of their sons migrated to Australia, whilst the other has continued to reside in Greece.

6. On 29 July 2014, the applicant applied for a protection visa. Her husband was included in the application as a member of her family and did not make his own claims. On 9 December 2014, a delegate of the Minister refused the protection visa application.

7. On 22 December 2014, the applicant applied for a review of the delegate’s decision and, on 28 June 2016, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.

8. On 25 July 2016, the applicant applied to the Federal Circuit Court of Australia for a review of the first Tribunal’s decision. On 17 July 2018, the Court remitted the matter to the Tribunal by consent to be reconsidered and determined according to law.

9. On 28 October 2018, the applicant’s husband unfortunately passed away.

10. The matter is now before the presently constituted Administrative Appeals Tribunal (the Tribunal) pursuant to the order of the Court.

    Claims before the Department

    The application

11. In a statement attached to her protection visa application, the applicant made the following claims.

12. She was born in Baghdad, Iraq. She and her husband are Armenian Christians. Her husband was a [Occupation 1] in Baghdad. In the course of an altercation with a customer, her husband was physically beaten, verbally abused, and detained. As a result of the physical torture he endured, her husband’s hearing was affected and, subsequently, his business failed. The applicant also suffered a miscarriage due to extreme fear. They later became aware that the customer was an associate of Saddam Hussein.

13. [In] April 1994, they fled Iraq and stayed in [Country 1] for about two months. [In] June 1994, they moved to Greece. They did not apply for protection because they were afraid that the regime would find out and harm their relatives in Iraq, and that they would be deported back to Iraq.

14. Her husband worked at a [business] in Greece from 1995 to 2007. Following a work related back injury, her husband was unable to walk and they survived on a monthly compensation paid by his employer. The applicant received bad treatment from the Greek authorities and her children were deprived of their right to go to school.

15. During the time she resided in Greece, there was ‘a wave of hatred’ towards immigrants, foreigners and refugees, as the country was going through a bad recession and economic downturn. All immigrants and refugees in Greece lived in fear and insecurity. During this time, the Black Shirts, an organisation affiliated with the extremist Golden Dawn Party, instigated attacks against immigrants, including the destruction of businesses and shops. Her son was attacked in a park by a group of Black Shirts but managed to escape. The situation deteriorated so much that they became afraid of walking in the streets in broad daylight and could not go to public places. The organisation also played an important role in deporting a large number of immigrants, claiming that they were responsible for the increasing unemployment and crime rates.

16. The applicant and her family also encountered bad treatment at the hands of the Greek police. They were abused and physically searched in the streets.

17. The applicant and her husband came to Australia to visit their daughter and were shocked to hear the news about ISIL and the killings in Iraq on a daily basis. Armenians have been a target of these attacks in Iraq and Syria.

18. In support of the application, the applicant submitted a number of news reports and articles relating to the human rights and the security situation in both Iraq and Greece.

    The interview

19. The applicant attended a Departmental interview on 25 November 2014. Where relevant, the applicant’s evidence at the interview is referred to below.

    The delegate’s decision

20. The delegate was satisfied that, on the basis of her Ten-Year Residence Permit, the applicant has an existing right to enter and reside in Greece and that she has not taken all possible steps to exercise that right. The delegate also found that the applicant does not have a well-founded fear of persecution in Greece, nor does she have a well-founded fear that Greece will return her to Iraq.

    Review application

21. On 22 December 2014, the applicant applied for a review of the delegate’s decision.

22. The applicant appeared before the first Tribunal on 30 May 2016. The hearing was conducted with the assistance of an interpreter in the Arabic language. The applicant was represented by her migration agent who was present at the hearing.

23. Following the hearing, the applicant’s representative submitted the following additional evidence to the first Tribunal:

    ·Medical records in relation to the hospitalisation of the applicant’s husband in Australia in 2015.

    ·A report published by the UNHCR titled ‘Greece as a Country of Asylum,’ dated December 2014.

    ·A document titled ‘Directors Decision’ (and translation) dated [in] January 2010, issued by [specified branch], [Organisation 1], Hellenic Republic. The document relates to the granting of non-institutional paraplegia allowance payments to the applicant’s husband, which commenced on 12 October 2009.

    ·A second document titled ‘Directors Decision’ dated 2 April 2014, relating to the applicant’s husband’s non-institutional paraplegia allowance payments.

    ·Extracts from a bank statement (and translation) for an account held at [Bank 1], issued [in] May 2016.

    The first Tribunal’s decision

24. The first Tribunal accepted that the applicant had a well-founded fear of being persecuted in Iraq for the reason of her religion. However, the first Tribunal found that, in accordance with s.36(3), both applicants have the right to enter and reside in Greece but have not taken all possible steps to avail themselves of this right. The Tribunal was not satisfied that there is a real chance or a real risk that the applicants will face serious or significant harm in Greece. In addition, the Tribunal was not satisfied that the applicants will be refouled from Greece to Iraq or any other country, as the Greek authorities had made no attempt to do so in the 20 years they had resided in that country.

25. On 17 July 2018, the Federal Circuit Court remitted the matter to the Tribunal by consent after the Minister conceded that the first Tribunal’s decision is affected by jurisdictional error in that the first Tribunal failed to deal with the applicants’ claim, or an integer of the applicants’ claim, being a fear of harm on the basis of their skin colour and ethnicity in Greece, as immigrants from an Armenian Christian background.

    The present Tribunal

26. The applicant was represented in relation to the review by her registered migration agent.

27. The applicant appeared before the Tribunal on 30 October 2019 and again on 20 March 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

28. At the first hearing, it was explained to the applicant that, if the Tribunal were to accept that she has a well-founded fear of being persecuted in Iraq, she is a person in respect of whom Australia has protection obligations. The Tribunal further explained to the applicant that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia, subject to some exceptions, namely where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

29. The Tribunal referred to the applicant’s Greek Ten-Year Residence Permit, which expires [in] 2022. It was put to her that a key issue in her case is whether she continues to have a right to enter and reside in Greece. The applicant told the Tribunal that she would be unable to return to Greece because her permit was granted on the basis that her husband had been granted a permit. The Tribunal acknowledged that the applicant has not resided in Greece since June 2014. The Tribunal also acknowledged that she had been granted the visa as a dependant of her husband and that it is unclear to the Tribunal if, as a consequence of her husband’s death, any rights or entitlements she has under the permit have been affected.

30. The Tribunal sought the applicant’s consent to approach the Greek authorities and make further enquiries in relation to her Ten-Year Residence Permit. The applicant provided her consent in writing by signing an ‘authority to disclose personal information’ and on the understanding that any information received from the Government authorities of Greece may be relied upon by the Tribunal in making its decision.

31. Subsequently, through the Department of Foreign Affairs and Trade, the Tribunal received information from the Directorate for Justice, Home Affairs, Migration and Schengen, Greek Ministry of Foreign Affairs, in relation to the grant and validity of the applicant’s permit. In essence, this information indicated that the validity of the permit, and the rights and entitlements attached, are not affected by the death of the applicant’s husband or the fact that she has not returned to Greece since 2014. The information also indicated that, as the holder of a Ten-Year Residence Permit, the applicant has full work rights and the same rights to insurance and social protection as Greek nationals. She may also freely move and settle anywhere in Greece.

32. The information obtained by the Tribunal, which suggested that the applicant has a right to enter and reside in Greece until the expiry of the permit in 2022, was put to her in writing and at the second hearing. Both in her written response and in her oral evidence to the Tribunal, she stressed that she continues to fear mistreatment by Black Shirts and other right-wing extremist groups in Greece. The applicant also stated that she has no intention of renewing her permit and even if she intended to do so, she may not be granted another permit with the same rights.

    Post-hearing submissions

33. On 1 April 2020, the applicant’s representative provided a submission, stating that recent development in Syria and the ongoing conflict in Idlib province has resulted in ‘thousands’ of Syrians migrating to Turkey, which has, in turn, opened its border with Greece. It was submitted that there are ongoing problems with asylum seekers in Greece and the authorities are unable to provide them with safety against far-right groups. It was stated that the applicant is ‘unable to seek asylum in current scenario nor she is able to survive.’ Other than a general reference to the Human Rights Watch’s 2019 World Report in relation to Greece, no other country information was provided in support of the claims made regarding the recent developments affecting Greece.

34. It was further submitted that, as a consequence of the COVID-19 pandemic, there are lockdowns and other preventive measures in place in Greece. The health system is struggling to cope with the number of those infected. The applicant falls within a vulnerable group, being over the age of [age], with underlying physiological and mental health issues related to the death of her husband and her uncertain future. She has no support in Greece and she is unable to get the medical help that may otherwise be available to her in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

35. 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.

36. 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).

37. 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.

38. 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’).

39. 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.

40. Sections 36(2)(a) and (aa) are qualified by subsections (3) to (5A) which set out circumstances in which Australia is taken not to have protection obligations. These provisions call for consideration of whether an applicant has access to protection in any country apart from Australia. These provisions provide as follows:

    Protection Obligations

    (3)      Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the
    non-citizen is a national.

    
    

    (4)      However, subsection (3) does not apply in relation to a country in respect of which:
              (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
              (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5)      Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
              (a) the country will return the non-citizen to another country; and
              (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.   
    (5A)    Also, subsection (3) does not apply in relation to a country if:
              (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
              (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

    Analysis, reasons and findings

41. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations and, if so, whether protection is available to her in another country, namely Greece. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Iraq

42. The Tribunal accepts that the applicant is a national of Iraq. The Tribunal accepts that she is Christian and of Armenian ethnicity. The Tribunal accepts that the applicant’s husband passed away in Australia and her [children] reside in Greece and Australia.

43. The country information before the Tribunal indicates that women in Iraq ‘without male relatives, including women-headed households, divorced women and widows are placed in a vulnerable position economically and in terms of exposure to harassment.’[1]

    [1] ‘EASO Country of Origin Information Report – Iraq Key socio-economic indicators’, European Asylum Support Office (EASO), 4 February 2019, 20190205091157.

1. A report by EASO included the following information provided by Dr Geraldine Chatelard in November 2018 which highlighted the dangers for a woman with no male protector and no family support networks:

   women and unaccompanied minors with no family support networks face additional challenges anywhere, especially single women who are looked down upon for not having a male protector and are at risk of physical abuse.[2]

   [2] Ibid.

2. A July 2009 Danish Immigration Service, Danish Refugee Council and Landinfo report, referring to the situation of single women in southern and central Iraq, stated that this group is amongst the most vulnerable in the country. The report noted that ‘a single woman, such as a widow, is also an easy prey for criminals.[3]

   [3] ‘Security and Human Rights Issues in Kurdistan Region of Iraq (KRI), and South/Central Iraq (S/C Iraq)’, Danish Immigration Service, Danish Refugee Council and Landinfo, July 2009, p.58, CIS17665.

3. A November 2018 Danish Immigration Service and Landinfo report provided information indicating that single women would face difficulties on return to Iraq if they did not have a family network available to support them.[4]

   [4] ‘Northern Iraq: Security situation and the situation for internally displaced persons (IDPs) in the disputed areas, incl. possibility to enter and access the Kurdistan Region of Iraq (KRI)’, Danish Immigration Service and Landinfo, 5 November 2018, p.39, CIS7B8394110112.

4. In its most recent Country Information Report in relation to Iraq, DFAT assessed that ‘women in Iraq face a moderate risk of official and a moderate risk of societal discrimination and violence … This risk is exacerbated for women who are members of ethnic or religious minorities.’[5]

   [5] DFAT, DFAT Country Information Report – Iraq, 9 October 2018.

5. On the basis of this information, the Tribunal considers that there is a real chance that the applicant would face serious harm in Iraq. The Tribunal is satisfied that the applicant’s religion and membership of the particular social group of widowed Christian women in Iraq are the essential and significant reasons for her fear of persecution. The Tribunal is satisfied that the applicant does not have adequate and effective state protection available to her and that it would not be reasonable for her to internally relocate to avoid the harm she fears. The Tribunal finds that the applicant has a well-founded fear of persecution in Iraq. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, she satisfies the criterion set out in s.36(2)(a).

   Greece

6. The qualification in s.36(3) provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

7. The fact that the applicant is in possession of a Ten-Year Residence Permit issued by the Greek authorities is not in dispute. As noted above, information provided to the Tribunal by the Greek authorities clearly indicates that, as a holder of the permit, the applicant has a right to enter and reside in Greece until the expiry of the permit [in] 2022. This information also indicates that Ten-Year Residence Permits are renewed in accordance with the requirements of Article 89 of Law 4251/14 concerning the status of long-term residents. If the conditions for inclusion in the status of long-term resident are not met, ‘the residence permit is renewed for three (3) years each time and under the condition, among others, that the applicant presents evidence of continuous residence in Greece and the period of absence does not exceed two (2) consecutive years’.

8. The Tribunal appreciates that the permit expires [in] 2022 and that there is no certainty as to whether the applicant will meet all the relevant conditions for the renewal of the permit should she seek to extend her stay in Greece. However, s.36(3) makes it clear that the right to reside can be permanent or temporary. There is no minimum p eriod specified as being sufficient. While the term ‘right … to reside’ suggests more than a right to a mere transitory presence, the term ‘temporarily’ means that right need not be an enduring one.[6]

   [6] See SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [34] and SZQPS v MIAC [2012] FMCA 108.

9. The Tribunal has considered the implications of the European Union’s temporary restrictions on non-essential travel from third countries in response to the COVID-19 pandemic and whether these restrictions are likely to place on prohibitions on the applicant’s right to enter and reside in Greece.

10. In V856/00A v Minister for Immigration and Multicultural Affairs,[7] Allsop J (as he then was) dealt with the operation of s.36(3) and the proper construction of ‘right’ in that section.

    
    

    Allsop J said:

    … I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain 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, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right.[8] (emphasis added)

    [7] (2001) 114 FCR 408.

    [8] Ibid at [31].

11. In MIMAC v SZRHU,[9] Buchanan J, all other members of the Court agreeing, endorsed the construction by Allsop J in V856/00A that a right to enter and reside in a country refers to a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[10] Allsop J’s construction, as endorsed in SZRHU, makes it clear that the right referred to in s.36(3) must also be an existing right, and not a past or lapsed right, or a potential right or an expectancy. The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant, the lack of any subsequent withdrawal of it and ‘from the lack of any existing prohibition or law contrary to its exercise’.

    [9] (2013) 215 FCR 35.

    [10] Ibid at [89].

12. The Department of Home Affairs, in its Policy: Refugee and Humanitarian – Refugee Law Guidelines state where the laws of the country provide a right to enter and reside, decision-makers should determine that the law is still in effect for the applicant or that the applicant’s circumstances have not changed such that the applicant will no longer be within the ambit of such laws.[11]

    [11] Department of Home Affairs, ‘Refugee Law Guidelines’, s.4.3, as re-issued 1 July 2017. Note that Ministerial Direction No 84, made under s.499, requires the Tribunal to have regard to those Guidelines, where relevant (for further discussion, see Chapter 12 – Merits Review of Protection Visa Decisions).

13. On 17 March 2020, the Greek Government issued an Official Gazette, announcing its decision in relation to ‘enforcement of entry restriction to third-country nationals except for EU and Schengen Agreement citizens for the containment of the COVID-19 spread’.[12] The entry restrictions, which apply to the period between 18 March 2020 and 18 April 2020, are imposed on ‘all third-country nationals from any entry point to the country and by any way or any means, including air, maritime, rail and road connections, for preventive reasons for the protection of public health from the further spread of COVID-19 in the Greek territory.’ The restrictions, however, do not apply to nationals of EU member-states and of Schengen Agreement, long-term residents in EU or Schengen Agreement member-states and third country nationals with a residence permit in EU or Schengen Agreement member-states, as well as other specific categories of persons.

    [12]

14. The Gazette appears to have been issued following, and in response to, a 16 March 2020 Communication from the European Commission to the European Council, recommending ‘rapid adoption’ of ‘a coordinated decision by all the Schengen Member States to apply a temporary restriction of non-essential travel from third countries into the EU’. The Communication states that ‘the temporary travel restriction must exempt nationals of all EU Member States and Schengen Associated States, for the purposes of returning to their homes’ and must apply to:

    – all EU citizens and citizens of the Schengen Associated States, and their family members;

    – third-country nationals who are long-term residents under the Long-term Residence Directive and persons deriving their right to reside from other EU Directives or national law or who hold national long-term visas.[13]

    [13] Ibid.

15. The Tribunal finds that, as a holder of a valid Ten-Year Residence Permit, the applicant is a third country national with a residence permit issued under the national law of Greece. The Tribunal finds that the applicant falls within the exceptions to the travel restrictions and that she is not prohibited by any existing prohibition or law to enter and reside in Greece.

16. The Tribunal finds that the applicant has not taken all possible steps to avail herself of a right to enter and reside in Greece.

17. The Tribunal has considered the applicant’s claims of fear of harm in Greece and whether she has a well-founded fear of being persecuted for a Convention reason in that country. Despite some discrepancies in the applicant’s evidence to the Department and her evidence to the first Tribunal, the Tribunal is prepared to accept that, prior to her departure for Australia, the applicant had witnessed acts of discrimination, abuse and violence being directed at asylum seekers and migrants in Greece. The Tribunal is prepared to accept that, on one occasion, the applicant’s younger son was assaulted by unknown individuals suspected of being affiliated with extremist anti-immigrant groups, and her older son’s business was damaged. The Tribunal is also prepared to accept that the Greek police had physically harassed her son on one occasion and that the applicant, as well as other members of her family, had experienced occasional verbal abuse, as well as being ‘poked’ or pushed. These claims are consistent with the country information before the Tribunal in relation to the situation in Greece at that time.

18. According to the United Nations Human Rights Council (UNHRC):

    Greece has witnessed, during the period 2012-2013, an important surge in the number of attacks against foreigners living in Greece by extremist organizations or individuals attempting to exploit the discontent of some segments of the population severely affected by the economic crisis, against the background of a sharp increase in irregular migration. Laws and policies have been adopted as a response to acts of violence, which are contrary to and undermine the fundamental values underpinning the country’s democratic society (see infra, paras. 39 et seq.). Other stakeholders have also responded to the challenges raised by the increase in racist violence, in particular through the creation by the NCHR and the Office of the UNHCR in Greece, in 2011, of the “Racist Violence Recording Network” (RVRN) in which participate 38 NGOs and other bodies, having as a primary goal the documentation of racist incidents.[14]

    [14] United Nations Human Rights Council (UNHRC), National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, 22 February 2016, page 3.

19. News reports also corroborate the surge of xenophobic attacks perpetrated by the Golden Dawn Party between 2012 and 2013. The Washington Post, for example, reported:

    Since the Golden Dawn’s rise to office this year, immigrant communities across Greece are reporting what they describe as a reign of terror. In the America Square neighbourhood of Athens, for instance, immigrants have begun organizing night watches after shopkeepers had their storefronts vandalized and immigrant men were assaulted. Earlier this month, residents say, a group of Greek men dressed in black stripped and humiliated an Ethiopian woman. Some alleged attacks involve nothing more than insults. Others are more serious.[15]

    [15] ‘Anti-immigrant Golden Dawn rises in Greece’, The Washington Post, 20 October 2012. See also ‘Racist attacks in Greece hit “alarming” levels – UNHCR, Reuters, 23 October 2012.

20. However, there has been an increased crackdown on extremist organisations, including the Golden Dawn Party, in recent years. The United Nations Human Rights Council reported in 2016 that:

    Along with the strengthening of the legislative framework, a number of measures have been taken at the level of law enforcement, criminal legislation and the justice system. In September 2013, the leader and members (including Members of Parliament) of the political party “Golden Dawn” were placed under judicial investigation for membership of a “criminal organization”. In total, almost 70 individuals have been indicted. The trial opened on 20 April 2015 and is closely followed by civil society organizations, with full respect for the right to a fair trial, in particular through the “Golden Dawn Watch” initiative.[16]

    [16] UNHRC, n14, above. See also Amnesty International,

21. The crackdown on Golden Dawn Party was also reported by the US Department of State, confirming that members of the Golden Dawn Party have been prosecuted for racially motivated violence against migrants and refugees.[17]

    [17]

22. In its World Report 2019, Human Rights Watch referred to media reports of attacks on persons perceived to be migrants or Muslims and an increase in hate crimes in 2017.[18] However, in 2018, Freedom House reported a decline in instances of violence perpetrated by the Golden Dawn Party, stating:

    Austerity related protests over the past decade have sometimes grown violent, and extremist groups like Golden Dawn have attempted to attack and intimidate assemblies in support of migrants' rights or other causes they oppose. However, such instances have become less frequent since a crackdown on Golden Dawn's leadership began in 2013, and police have improved their handling of security surrounding demonstrations.[19]

    [18] World Report 2019 – Greece, Human Rights Watch,

    [19] Freedom House, Freedom in the World Report 2018, 1 August 2018, page 4.

23. The UNHRC reported in 2016 that Greece has strengthened its anti-racism legislation. The report stated:

    In September 2014, Parliament adopted Law 4285/2014, amending Law 927/1979, with the aim to strengthening the country’s criminal anti-racism legislation and adjusting the relevant legislative framework with EU Council Framework Decision 2008/913/JHA.

    Law 4285/2014 punishes, inter alia, public incitement to acts or activities which may result to discrimination, hatred or violence against individuals or groups of individuals defined by reference to race, colour, religion, descent, national or ethnic origin, sexual orientation, gender identity, or disability, in a manner which endangers public order or threatens life, liberty or physical integrity of the abovementioned persons; the establishment of or participation in an organization or union of persons of any kind systematically pursuing the commission of the abovementioned acts; under the circumstances prescribed by the law, the act of publicly condoning, trivializing or maliciously denying the commission or seriousness of crimes of genocide, war crimes, crimes against humanity, the Holocaust and Nazi crimes, recognized by decisions of international courts or the Hellenic Parliament. The penalties are stricter if these crimes are committed by a civil servant. In addition, the law introduces the administrative liability of legal persons or unions of persons.

    Penalties for racist crimes have been stiffened. The new article 81A introduced in the Criminal Code raises the minimum penalty and doubles the monetary penalties that may be imposed for racist crimes …[20]

    [20] UNHRC, n14, above.

24. According to the US Department of State, laws are generally enforced by the authorities in Greece.[21]

    [21] COISS, Greece: Country Overview, June 2017 citing US Department of State, Country Report on Human Rights Practices 2016 – Greece, 3 March 2017.

25. The above information was put to the applicant at the hearing. The applicant reiterated her concerns and fears in relation to far-right extremist groups. The information set out above indicates a notable decline in instances of racially motivated violence, strengthening of anti-racism legislation and the authorities’ willingness to enforce these laws as evidenced by a crackdown on extremist organisations, such as the Golden Dawn Party, and the prosecution of affiliated members. The Tribunal appreciates that there are reported instances of Greek police perpetrating acts of discrimination, abuse and degrading treatment against migrants. These reports suggest that these acts were primarily directed at undocumented migrants, asylum seekers and Roma.[22] There are also credible reports, suggesting that the Hellenic Police Directorate for Internal Affairs and the ombudsman have been actively engaged in investigating numerous cases of police abusing their authority.[23]

    [22] US Department of State, 2018 Country Reports on Human Rights Practices: Greece, 13 March 2019. See also Minority Groups International, World Director Minorities and Indigenous Peoples, August 2018.

    [23] US Department of State, ibid.

26. On the basis of the evidence before it, the Tribunal does not accept that there is a real chance that the applicant will face serious harm in Greece at the hands of the Black Shirts, members of the Golden Dawn Party, other groups or individuals, the police or other state officials for the reason of her race, ethnicity, religion, nationality, skin colour, or membership of any particular social group, including foreigners or ‘strangers’ in Greece, immigrants in Greece, female immigrants in Greece, immigrants of Iraqi background in Greece, immigrants of Armenian Christian background in Greece or any other subsets of these groups.

27. It is not clear on what basis the applicant’s representative stated in his most recent submission that the applicant would be unable to ‘seek asylum’ in Greece. In any event, as noted earlier, the applicant holds a Ten-Year Residence Permit, which may be renewed. Whilst the applicant and her husband ceased to receive a Greek pension sometime after they came to Australia, as a holder of a Ten-Year Residence Permit, the applicant has full work rights, and the same rights to insurance and ‘social protection’ as Greek nationals. In addition, the applicant’s older son continues to reside in Greece. The Tribunal appreciates that, whilst he owns a business, he may have limited means to support the applicant financially. Nevertheless, the applicant did not claim, and there was no other evidence before the Tribunal to suggest, that the applicant’s [children] in Australia would be unable to assist their brother in providing support for their mother in Greece.

28. The Tribunal accepts that the applicant is over the age of [age] and may be relatively more vulnerable if she were to get the COVID-19 virus. In this context, in his submission of

    
    

    1 April 2020, the applicant’s representative referred to the applicant’s ‘underlying physiological and mental health’ issues. However, no medical or psychological evidence was submitted to the Tribunal. The Tribunal notes that, according to the Australian Department of Health, people who are, or are more likely to be, at higher risk of serious illness if they get the virus are, amongst others, people 65 years and older with chronic medical conditions and people with a compromised immune system.[24] On the basis of the available evidence, the applicant does not appear to fall within these or other categories of persons at risk.

    [24] Australian Government, Department of Health, Coronavirus (COVID-19) Health Alert, What You Need to Know about Coronavirus (COVID-19), <Accessed on 3 April 2020>.

1. At the time of writing this decision, the reported number of confirmed COVID-19 cases in Greece stood at 1,544.[25] The applicant’s representative did not submit any information from any sources to support his contention that the health system is struggling to cope with the number of those infected. It would be entirely speculative to consider whether the applicant will contract the virus or the level of access to health care she may require. In any event, there was no evidence before the Tribunal to suggest, and the Tribunal does not accept, that the applicant will be denied access to health care and medical services in Greece for a Convention reason or, indeed, any other reason, nor does the Tribunal accept that the deprivation of the applicant’s access to medical treatment in Australia, albeit speculative, would amount to significant harm.

   [25] Center for Systems Science and Engineering (CSSE), Johns Hopkins University, <Accessed on 3 April 2020>.

2. There was no persuasive evidence before the Tribunal, and the Tribunal is not satisfied, that there is a real chance that the applicant will experience significant economic hardship, or will be denied access to basic services or will be denied the capacity to earn a livelihood, where such hardship or denial threatens her capacity to subsist. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted in Greece for reasons of her race, religion, nationality, membership of a particular social group or political opinion.

3. The Tribunal does not accept that there is a real risk that the applicant will face significant harm in Greece at the hands of the Black Shirts, members of the Golden Dawn Party, other groups or individuals, the police or other state officials. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing herself of the right to enter and reside in Greece, there would be a real risk that she will suffer significant harm, as defined in ss.36(2A) and 5(1) of the Act, in relation to the country.

4. The applicant is a holder of a resident permit valid [until] 2022. The applicant did not claim, and there was no evidence before the Tribunal to indicate, that there is any likelihood, let alone a real chance or a real risk, that the Greek authorities will return her to Iraq. The Tribunal has also taken into account the country information before it, suggesting that the Greek Government provides protection against the expulsion of refugees where their lives or freedom would be threatened, and the law provides for the granting of asylum or refugee status.[26]

   [26] US Department of State, 2018 Country Reports on Human Rights Practices: Greece, 13 March 2019, page 13.

5. The Tribunal finds that the applicant does not have a well-founded fear that Greece will return her to Iraq or any other country where she will be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion; or where there are substantial grounds for believing that there would be a real risk that she will suffer significant harm.

6. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first named applicant does not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa.

7. On the basis of a death certificate submitted to the Tribunal, the Tribunal accepts that the second named applicant passed away in Australia [in] October 2018. It follows that the review application in relation to the second named applicant lapses and there is no valid application for review. The Tribunal, therefore, does not have jurisdiction with respect to the second named applicant.

   DECISION

8. The Tribunal affirms the decision not to grant the first named applicant a protection visa.

9. The Tribunal has no jurisdiction with respect to the other applicant.

   Shahyar Roushan
   Senior Member

   
   
   

Official Government Gazette of the Hellenic Republic, ‘Enforcement of entry restriction to
third-country nationals except for EU and Schengen Agreement citizens for the containment of the COVID-19 spread’, Second Issue, No.916, 17 March 2020.

Amnesty International Report 2017/2018
The State of the World’s Human Rights, 2018, page 179.

US Department of State, 2018 Country Reports on Human Rights Practices: Greece, 13 March 2019; and US Department of State, 2019 Country Reports on Human Rights Practices: Greece,
11 March 2020.