1900684 (Refugee) - [2021] AATA 805

1900684 (Refugee) [2021] AATA 805 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1900684

COUNTRY OF REFERENCE: Italy
MEMBER:Alison Murphy
DATE:4 March 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2021 at 11:31am
CATCHWORDS
REFUGEE – protection visa – Italy – Federal Circuit Court remittal – particular social group – persons experiencing mental health conditions – fear of Mafia violence – child sexual assault – debt repayments – employment – Social Security Agreement between Australia and Italy – potential future criminal activities – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 424A, 501
Migration Regulations 1994, Schedule 2
CASES
CSV15 v MIBP [2018] FCA 699
CHB16 v MIBP [2019] FCA 1089
EZC18 v MHA [2019] FCA 2143
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZAAJ v MOI [2015] FCCA 151
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age]-year-old male and a citizen of Italy. He arrived in Australia together with his family [in] July 1990 as the holder of a [specified] visa. He was [a child] at that time and he has not departed Australia since.
On 18 December 2014 his visa was cancelled under s.501(3A) of the Acton the basis that the applicant did not pass the character test. The applicant made representations to the Minister about revocation of that decision but on 18 December 2015 the Minister decided not to revoke the decision to cancel the applicant’s visa. The applicant’s appeals against the cancellation to the Federal Circuit Court and the Federal Court of Australia were dismissed in 2016 and 2017 respectively.
The applicant applied for the protection visa on 27 June 2017. A delegate of the Minister refused to grant the visa on 4 July 2017, considering that as a citizen of the European Union (EU), the applicant has a right to enter and reside in other EU countries where he would not face a real chance of serious harm from perpetrators in Italy. The delegate considered that the applicant’s claims relating to his health conditions did not relate to harm directed at him for one or more of the reasons mentioned in s.5J(1)(a) of the Act and that he would not intentionally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1900684 (Refugee)

Details

AGLC: 1900684 (Refugee) [2021] AATA 805
Case: [2021] AATA 805
Decision Date: 4 March 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an Italian citizen who had resided in Australia since 1990. The applicant claimed he feared persecution in Italy due to his mental health conditions, a history of substance and gambling addictions, and alleged threats of violence from the Mafia related to debt repayments and potential future criminal activities. The Minister had previously cancelled the applicant's visa on character grounds, and he had been in immigration detention since December 2014.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, either under the refugee convention or under complementary protection grounds. This required the Tribunal to assess the genuineness and well-foundedness of the applicant's asserted fears of harm in Italy, considering his personal background, mental health status, and criminal history. The Tribunal also had to determine if Australia owed protection obligations to the applicant as a consequence of his removal from Australia.

The Tribunal affirmed the decision under review, concluding that the applicant had not satisfied the statutory elements for a protection visa. While acknowledging the applicant's significant mental health challenges and his difficulties in providing evidence, the Tribunal found that not all aspects of his claims were accepted. The Tribunal considered the applicant's Italian citizenship and assessed his claims against Italy as his country of nationality. The Tribunal also noted that the applicant had limited memories of Italy and did not speak the language fluently. The Tribunal applied the principles that the onus is on the applicant to provide sufficient detail to establish the relevant facts, and that a decision-maker is not required to uncritically accept all allegations. The Tribunal also considered the provisions relating to complementary protection, which require substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal.

Orders

Orders of the court

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Background

Background to the litigation

The applicant’s identity and Italian citizenship are not in dispute. Although he has lived in Australia since 1990, he does not hold Australian citizenship. The Tribunal finds the applicant is an Italian citizen and has assessed his claims against Italy as his country of nationality and the receiving country.The applicant’s personal background The applicant’s parents were both born in Italy. His mother first came to Australia in 1969 with her family and his father first came to Australia in 1975. The applicant’s parents met and married in Australia and had [number] children before the family returned to Calabria, Italy in or about 1979. Their [eldest] children were born in Australia while their [younger] children, including the applicant, were born in Italy. The family returned to Australia in 1990, sponsored by the applicant’s [relative]. The applicant was aged [age] at the time and has few memories of Italy. His [siblings] were aged between [age range] at the time of the family’s return to Australia. The applicant is of Calabrian ethnicity and Christian religion. He understands Italian although he does not speak it well and is unable to have a conversation in that language. The applicant completed high school in Australia and later enrolled in a course in [Subject 1] which he did not complete. He has worked in [specified businesses and roles]. He last worked in about 2008 or 2009 in a [Business A]. The applicant has been diagnosed with a number of serious mental health conditions including schizophrenia, obsessive compulsive disorder, anxiety and depression. He has a history of substance and gambling addictions. The applicant has been in immigration detention since his visa was cancelled by the Minister on character grounds on 18 December 2014. Both of the applicant’s parents and all of his siblings are Australian citizens.The applicant’s medical conditions A neuropsychological report dated 13 October 2017 by [Doctor A] was submitted to the first Tribunal. That report provided the following background about the applicant:· The author had access to background information from past psychiatric reports and hospital records and interviewed the applicant and his mother and sister;· The applicant has a history of chronic paranoid schizophrenia, characterised by persistent auditory hallucinations and persecutory ideation. He started experiencing mental health issues as a teenager and began receiving psychiatric treatment about 10 years prior to the report;· He had some contact with the Crisis Assessment and Treatment Team (CATT) from [a health service] and began seeing a private psychiatrist in 2008;· In 2013 he was assessed as a gambling and alcohol addict suffering from chronic paranoid schizophrenia;· In 2014 he was diagnosed with chronic paranoid schizophrenia with a likely overlapping diagnosis of obsessive-compulsive disorder, as well as a history of substance abuse including alcohol and cannabis;· In 2016 he was admitted to [a named] Clinic and commenced treatment with clozapine, apparently resulting in a significant improvement to his mental state;· At [a named] Detention Centre, he sees a psychiatrist monthly and has weekly sessions with a psychologist or counsellor. At the time of the assessment he was on clozapine 300mg and lorazepam for his mental health conditions as well as medications for [physical conditions];· He has convictions for robbery, armed robbery, attempted robbery, theft, make threats to kill, criminal damage by fire, assault with a weapon, possess controlled weapon and driving offences and it is the author’s understanding that these offences occurred when he had ceased taking psychotropic medication and/ or was under the influence of alcohol;· He completed high school to a [a specified] level, but required the assistance of an aide for reading, spelling and maths. He completed half a [Subject 1] course at [a college];· He has worked [in specified roles and businesses], and most recently worked for three to four months in a [Business A] in 2007 but was unable to maintain this employment as he had begun drinking and gambling heavily;· When living in the community, he lived mainly with his mother who provided a significant degree of practical support for him with taking medication, attending Centrelink and other appointments and completing tasks for him at home including cooking, cleaning, shopping and laundry.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 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. Rather 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 in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant[1]. [1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70 The Tribunal has been mindful of the particular difficulties that the applicant faces in providing information about his claims, given his lack of capacity to give evidence in support of his claims. However, for the reasons set out below and on the material that has been produced to the Tribunal, the Tribunal does not accept all aspects of the claims made on his behalf.Country of nationality The applicant’s identity and Italian citizenship are not in dispute. Although he has lived in Australia since 1990, he does not hold Australian citizenship. The Tribunal finds the applicant is an Italian citizen and has assessed his claims against Italy as his country of nationality and the receiving country.The applicant’s personal background The applicant’s parents were both born in Italy. His mother first came to Australia in 1969 with her family and his father first came to Australia in 1975. The applicant’s parents met and married in Australia and had [number] children before the family returned to Calabria, Italy in or about 1979. Their [eldest] children were born in Australia while their [younger] children, including the applicant, were born in Italy. The family returned to Australia in 1990, sponsored by the applicant’s [relative]. The applicant was aged [age] at the time and has few memories of Italy. His [siblings] were aged between [age range] at the time of the family’s return to Australia. The applicant is of Calabrian ethnicity and Christian religion. He understands Italian although he does not speak it well and is unable to have a conversation in that language.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT has not prepared such a country information assessment for Italy. PROCEEDINGS BEFORE THIS TRIBUNAL The matter was first listed for a directions hearing on 28 June 2019. At that hearing the Tribunal (differently constituted by a Sydney based member) made directions for the filing of documents and submissions and indicated that the matter would be listed for hearing in either the week commencing 19 or 26 August 2019. Shortly after the hearing the applicant advised the Tribunal that a key witness would be unavailable during that period and asked that the matter be listed on a date after 28 August 2019. As a consequence the matter was subsequently relisted for hearing on 4 September 2019. Following the directions hearing, the Tribunal made a request to the Department for the production of the applicant’s medical records. In response to that request the Department produced clinical and mental health records for the applicant and on 28 August 2019 the Presiding Member released those materials to the applicant in full. On 2 September 2019 the applicant’s representative requested the hearing scheduled for 4 September 2019 be adjourned, advising that it had not be possible to obtain English language translations of witness statements on which the applicant wished to rely nor to take instructions on the medical records released by the Presiding Member. An adjournment of the substantive hearing was granted by the Presiding Member and the matter proceeded as a directions hearing on 4 September 2019. The hearing was resumed on 6 November 2019 and a number of statutory declarations were lodged with the Tribunal. On that date there was discussion of the applicant’s capacity to instruct his representative, participate in the hearing and give evidence and the applicant’s representative indicated that she intended to make an [application] for the appointment of an administrator. For these reasons the substantive hearing did not proceed on that date.