1827336 (Refugee)

[2018] AATA 5157

1827336 (Refugee) [2018] AATA 5157 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827336

COUNTRY OF REFERENCE:                  United Kingdom

MEMBER:Sheridan Lee

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2018 at 3:40pm

CATCHWORDS
REFUGEE – protection visa – United Kingdom – harm arising from deteriorating mental health – claim does not amount to persecution – no discriminatory behaviour on part of the receiving country or individual within – relationship breakdown – domestic violence – death of newborn – immigration detention – applicant’s suffering specific to individual circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
CSV15 v MIBP [2018] FCA 699
SZRSN v MIAC [2013] FCA 751

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 on 17 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [age] year old male from Scotland. He applied for the visa on 6 September 2018 and a delegate of the Minister for Immigration refused to grant the visa on 17 September 2018.

3. The Tribunal viewed a copy of the applicant’s United Kingdom passport. I accept that the applicant is a citizen of the United Kingdom and will assess the applicant’s claims against Untied Kingdom as his country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.

4. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

5. 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, 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.

6. 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.

7. 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 themself of the protection of that country: s.5H(1)(a).

8. 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.  

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

11. The applicant first arrived in Australia on 11 September 2007 on a [temporary] visa. He met his future wife when they were both backpacking around Australia. She is [a Country 1] national. The applicant was married [in] November 2011 and together they have a daughter. Their [age] year old daughter was born in [Country 1] and is also [a Country 1] national.

12. The family lived together in [Country 1] and briefly in Scotland, before returning to Australia in 2014. The applicant was listed as a dependant on his wife’s visa and acted as the primary care giver for their daughter while his wife studied and then worked. The applicant’s wife and daughter currently hold temporary Australian visas and reside in [City 1].

13. On [date] the applicant’s wife gave birth to their second child. Unfortunately, he was born with a [medical] condition and passed away on [date]. Following the death of his son, the applicant’s mental health deteriorated and his relationship ultimately broke down.

14. In April 2017, the applicant was involved in an altercation at his daughter’s school, during which it is alleged that he assaulted his wife and another parent. A final intervention order was issued by the Magistrates’ Court prohibiting the applicant from committing family violence.

15. In early September 2017, following the incident at the school, the applicant’s visa was cancelled and he was taken into immigration detention. The applicant sought review of the delegate’s decision to cancel his visa before this Tribunal (differently constituted) and the applicant was released after the delegate’s decision was set aside by the Tribunal on 20 November 2017.

16. At the hearing, the applicant gave evidence that on the anniversary of his son’s death, he and his wife had a fight and she went to stay with a friend for about 3 days. The applicant’s wife also contacted the police and an intervention order was issued. The order stipulated that he was not to visit the house or make contact with his wife, other than in relation to the care of their daughter. Over the next five days, he sent a number of texts and emails that were found to be in breach of the intervention order. The applicant was held to be in breach of his intervention order and in breach of bail conditions.

17. The applicant was detained by police in January and taken back into immigration detention in February 2018. The applicant has been in immigration detention since that time. On 6 September 2018 he applied for a protection visa.

18. The applicant has put forward a claim for complementary protection on the basis that he will suffer significant harm if he is separated from his daughter and the site of his son’s grave in Australia. In particular, the applicant expressed concern for his mental health as a result of losing access to his daughter. Owing to his deep religious faith, he would suffer harm as a result of being unable to visit the site of his son’s grave, which is an important Catholic tradition. He further outlined that he has no financial support in Scotland and would be homeless upon return.

    Refugee criterion

19. The applicant’s claim relates to harm he will suffer as a result of his removal from Australia. He has not claimed that he has or would be harmed by the Government of the United Kingdom or actors within it.  His contention is that he would suffer harm no matter where he was in the world if that location were outside Australia. This does not amount to persecution in the context of the refugee criteria. Persecution must involve systemic and discriminatory conduct. In these circumstances there is no deliberate or discriminatory behaviour on the part of the United Kingdom or any individual within it.

20. Furthermore, I note that the applicant would not suffer the claimed harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. The separation from his daughter, the grave of his son, and his financial position upon return is a situation specific to his individual circumstances.

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

23. The types of harm that will amount to significant harm for the purposes of complementary protection are exhaustively defined by s.36(2A). Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, they will be subjected to torture, or to cruel and inhuman treatment or punishment or to degrading treatment or punishment.

    Mental health

24. The Federal Court has confirmed that the definition in s.36(2A) is framed in terms of harm suffered because of the acts of others. It does not encompass harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to the receiving country. For the same reasons it would not encompass self-harm.[1]

    [1] CSV15 v MIBP [2018] FCA 699

25. Any harm the applicant will suffer as a result of mental illness will not be harm that is suffered as a result of the act on another person. For this reason, I find that the applicant’s mental health does not constitute significant harm for the purposes of complementary protection.

    Harm caused by removing the applicant from Australia

26. In SZRSN v MIAC, the applicant claimed that significant harm would arise from separating him from his Australian children. In that matter, the Federal Court found that harm arising from the act of removal itself will not meet the definitions of significant harm in s.36(2A).

27. The applicant claims harm arising from separation from his daughter and the site of his son’s grave and further claims that he would have difficulty finding somewhere to live. I note that while he may experience financial hardship, access to accommodation would not be withheld from the applicant. In fact, the applicant highlighted several organisations that may be in a position to assist with securing accommodation for people in his situation. I find that the claimed harm would arise from the act of removal itself, which is not a harm faced as a result of an act within the receiving country. I therefore find that this does not fall within the definition in s.36(2A).

28. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

29. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

30. Given that there are no protection obligations arising in this matter, I have not considered the applicant’s right to enter and reside in any country apart from Australia under s.36(3).

    Ministerial intervention

31. On 2 November 2018, the Tribunal received a request from the applicant that his matter be flagged for the possible exercise of the Minister’s discretion under s.417 of the Act. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister.

32. I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Sheridan Lee
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …