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

1. 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).

2. 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.

3. 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.

4. 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 be denied medical treatment for the purposes of the complementary protection criterion.

5. The applicant sought a review of the delegate’s decision and on 30 October 2017 this Tribunal, differently constituted, affirmed the delegate’s decision.

6. [In] December 2018 the Federal Circuit Court of Australia quashed the Tribunal’s decision and remitted the matter back to the Tribunal to rehear and determine according to law, holding that the Tribunal fell into jurisdictional error by concluding that the applicant was competent to give evidence in the review.

7. The matter is now before the Tribunal pursuant to an order of the Court.

   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 (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 (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

14. 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.

15. 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.

16. 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.

17. 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.

18. On 22 November 2019 the Tribunal wrote to the applicant seeking ongoing updates as to the status and outcome of [that] application. The Tribunal also asked the applicant’s representative to notify the Tribunal if the applicant’s mental health conditions stabilised or improved, such as that he was considered by his treating medical practitioners to have capacity and ability to participate in the hearing. The Tribunal also noted its earlier requests for written submissions on legal issues as set out in the Tribunal’s correspondence dated 2 July 2019, 10 July 2019, 12 July 2019, 29 August 2019 and 2 September 2019. The Tribunal noted that it understood the applicant intended to rely on evidence from certain overseas witnesses and had obtained statements from those witnesses and requested that the applicant provide either a witness statement together with certified translation or an outline of each witness’ evidence prior to the resumed hearing. The Tribunal noted that it did not intend to resume the hearing until [that application] had been determined.

19. On 3 February 2020 the Tribunal sought a status update from the applicant about the [specified] application. On 7 February 2020 the applicant provided a copy of [an] order dated [in] January 2020 appointing [the applicant’s mother] the administrator of his estate. The order of administration was limited to decisions relating to legal matters in respect of the immigration matter before this Tribunal, to be reassessed no later than 31 March 2021.

20. On 24 February 2020 the Tribunal wrote to the applicant advising the hearing would resume on 1 April 2020. While the applicant responded on 4 March 2020 indicating he would attend the resumed hearing, the applicant’s representative wrote to the Tribunal on 11 March 2020 advising that she was no longer acting for the applicant.

21. As of 20 March 2020, all in-person hearings before the Tribunal ceased in response to the global COVID-19 pandemic. The Tribunal wrote to the applicant advising him that due to the current situation with COVID-19, the Tribunal would not be able to conduct the scheduled hearing on 1 April 2020 but that it intended to relist the hearing as soon as practicably possible.

22. In the following months the border between NSW and Victoria closed for a significant period. As a consequence the matter was reconstituted to me due to the unavailability of the Presiding Member to travel to Melbourne and conduct the hearing. As public health directions in Victoria continued to restrict the movement and meeting of persons, I listed the matter for further directions by video on 2 September 2020. The applicant attended by MS Teams video and [the applicant’s mother] attended by telephone.

23. At that hearing I discussed with the applicant the issues in the review and the manner in which the hearing might proceed, given ongoing Stage 4 restrictions in force in Melbourne and the Tribunal’s inability to conduct in-person hearings at that time. [The applicant] told the Tribunal he had been in detention for a very long time and did not wish to wait for in-person hearings to resume, rather he preferred the matter be heard by video as soon as possible. [The applicant’s mother] advised the Tribunal that a family member would assist her and the other witnesses to participate in a hearing using Microsoft Teams video and that some family members may also give evidence from Italy.

24. Following the directions hearing the Tribunal wrote to the applicant and [his mother] confirming the arrangements for the hearing, including that the hearing would be listed on a date to be fixed in October or November 2020 in the afternoon to take account of the time difference between Melbourne and Italy. That letter also advised that the Tribunal would not list the matter while Melbourne Stage 4 restrictions continued in Melbourne, rather the hearing date would be set after the Victorian Government announced an easing of restrictions such as would allow family members to visit each other’s households so that [the applicant’s mother] could be assisted by her family members to join the video hearing from her home and any other family members who might wish to give evidence or participate in the hearing at the same location as their mother could do so.

25. That letter also advised that the member would reschedule the hearing for a later date if Stage 4 restrictions were ongoing in October and November 2020; or if the Tribunal was advised that [the applicant] preferred to wait for an in person hearing; or if the Tribunal was advised that the public health restrictions in force would make it difficult for any witness to participate in the hearing. That letter also attached a summary of the issues in the review and an extract of the legislative provisions the Tribunal was bound to apply.

26. Following the first stage of easing of State 4 restrictions in Victoria, the matter was scheduled for a hearing by video on 13 November 2020. At the beginning of the hearing [the applicant’s mother] sought an adjournment on the basis that [the] applicant’s father and one of the principal witnesses, was unable to participate in the hearing due to a faulty hearing aid. [The applicant] agreed that the hearing should be adjourned and advised that he would prefer to wait for an in-person hearing, which by that stage were scheduled to commence on a trial basis in December 2020.

27. A hearing took place on 15 December 2020 at the Tribunal’s Melbourne registry and the Tribunal heard evidence in person from the applicant, his mother [named], his father [and] his [Sibling A]. The Tribunal also heard telephone evidence from the applicant’s [Sibling B] and [Sibling C]. Given the time difference between Italy and Australia, the hearing was resumed by Microsoft Teams video conference on 7 January 2021 to hear evidence from the witnesses in Italy. At the resumed hearing the Tribunal was unable to contact either of the two witnesses in Italy.

28. On 20 January 2021 the Tribunal wrote to the applicant pursuant to the provisions of s.424A and on the same date [the applicant’s mother] responded to the Tribunal’s letter by email.

29. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

31. 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

32. 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

33. 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

34. 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.

35. 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.

36. 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.

37. 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].

38. 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.

39. 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

40. 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.

1. [Doctor A’s] report indicates she administered a number of psychological tests with the following results:

   ·     His overall intellectual functioning fell in the ‘extremely low’ or ‘intellectually disabled’ range across most domains;

   ·     With regards to learning and memory, he exhibited extremely poor immediate recall of information and showed a tendency to produce ‘intrusion errors’, by providing incorrect information that had not been presented. He was able to remember only a small amount of information after a delay period;

   ·     He was fully oriented to person, time and place but his planning and organisation skills were poor and he self-reported extremely severe levels of depression, anxiety and stress symptoms over the week preceding his assessment;

   ·     Overall, the assessment revealed he has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance to manage the demands of a familiar community (Melbourne, Australia) let alone an unfamiliar foreign country;

   ·     This is in addition to his well-documented history of chronic schizophrenia, for which he would be expected to need regular and ongoing psychiatric treatment and monitoring. Even when receiving regular treatment and medication, he continues to experience some residual psychotic symptoms;

   ·     In new situations he would have difficulty thinking flexibly and generating solutions to problems and would be at significant risk of reverting to previously-used means of coping (ie alcohol use, gambling and criminal behaviour);

   ·     He has required support from others (mainly his mother) to achieve some degree of independent functioning in the community and appears to have functioned best in the supported, structured environment of immigration detention. It would be expected that he would continue to need external support in future to manage tasks such as attending appointments, administering medication and managing complex activities of daily living (eg paying bills);

   ·     He will have difficulty learning and remembering new information as well as trouble planning, monitoring and adapting his behaviour. He may be slow to process information, have a limited capacity to attend to more than a few pieces of information or focus on more than one task at once and may become easily overwhelmed.

2. At the hearing the applicant told me that he continued to take clozapine in detention. When he was living at home, his mother assisted him to take his medication. At the Tribunal hearings he appeared distracted and at times confused. He was visibly concerned for his mother, who became distressed at times during the hearings. He gave evidence he had few memories of Italy, being a young child when he left that country. He told me he preferred to let his mother help him respond to the issues raised by the Tribunal and I note she has been appointed his administrator for the limited purposes of these proceedings.

3. I accept the contents of [Doctor A’s] report. While there is no more recent medical information before me, I accept the applicant’s psychological profile continues to be as described by [Doctor A] in her 2017 report.

4. I accept that separately from his schizophrenia, the applicant’s overall intellectual functioning falls in the ‘extremely low’ or ‘intellectually disabled’ range and that he has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance with his daily activities including attending appointments, administering medication and paying bills. I accept that as a result of his cognitive impairments, he may become easily overwhelmed and is at significant risk of reverting to alcohol abuse, gambling and criminal behaviour.

5. On the basis of the medical evidence before me, and the applicant’s presentation at the Tribunal hearings, I conclude the applicant does not presently have the capacity to meaningfully participate in the hearing. It is apparent the applicant’s mental health conditions are long standing, dating back to his teenage years. The medical evidence indicates that even when the applicant is receiving appropriate psychiatric treatment including medication and counselling such as he is in detention, he continues to experience residual psychotic symptoms of his schizophrenia.

6. Even if the applicant’s mental health conditions were to significantly improve, he also lives with significant cognitive deficits that mean he requires support and assistance for all of his daily activities. For these reasons I consider it unlikely that the applicant will regain the capacity to participate in a Tribunal hearing in the foreseeable future.

7. Where an applicant lacks the capacity to participate in a hearing for the foreseeable future, the Tribunal remains under a statutory obligation to complete the review without delay on the evidence that is before it. In this case that is the written and oral evidence of the applicant’s family members as well as country information discussed with the applicant at the hearings.

8. I accept that any inconsistencies or lack of detail in the applicant’s evidence are explained by his medical conditions and his young age when the claimed events occurred. I accept he has no direct knowledge of many of the events that are stated to have occurred in Italy, rather his knowledge of those events comes from the statements of family members many years after they took place. I make no adverse credibility findings, and draw no adverse inferences, from his evidence.

   The applicant’s claims for protection

9. The applicant’s claims for protection are set out in his protection visa application, in which he states he is afraid to return to Italy for two main reasons.

10. Firstly, his family fled to Australia in 1990 when the applicant was just [age] years old because his paternal grand-father was the subject of a [Group A] retribution. Although the applicant was too young to understand any of this at the time, he found out later that quite a few of his father’s close relatives were killed and he thinks the [Group A] are even threatening his mother’s side of the family. There is no escaping the [Group A] in Italy if they deem someone to be a target and [their] family is a target for them. Because the applicant is his father’s adult son, the retribution of the [Group A] will carry to him if he is forced to return to Italy and he is desperately afraid he will be murdered. The police and government are effectively powerless against the Mafia and he is not rich and influential enough to draw the protection of the police. The Mafia has its fingers all over Italy and will find him so he would have the same problem even if he relocated.

11. Secondly, the applicant has several severe mental illnesses, including schizophrenia, anxiety and depression. He takes clozapine which keeps his symptoms under control with few side effects, but it can cause a fatally low white blood cell count so he requires regular blood tests while on clozapine. He knows there are some services in Italy, but he does not know how to access these services and he does not speak Italian. He feels overwhelmed at finding medical care and stable treatment for his illnesses. He is afraid he might lapse into a schizophrenic episode and that he will be hurt or unable to control himself or die because of his illness.

12. At the Tribunal hearings the applicant and his family members maintained he would be harmed for these reasons. The applicant’s mother and sister also gave evidence the applicant was sexually assaulted by a member of the extended family as a young child in Italy.

    Fear of harm from the Calabrian mafia

    Evidence at the Tribunal hearing on 23 August 2017

13. At the first Tribunal hearing on 23 August 2017, the applicant gave evidence that his father got involved with the mafia after borrowing money off them which he couldn’t pay back. As a result the mafia is after his family and they contacted his [relative] in Australia and fled really quickly to Australia. His grandfather [and specified relatives] were all killed. One [relative] went to a different part of Italy in the north and they still found him and killed him. He is really scared and doesn’t want to go to Italy. He said he was too young to understand these events when he came to Australia and his parents kept it away from him as they didn’t want to worry him. He only found out about his father’s problems with the [Group A] when he was taken into detention.

14. The applicant’s father gave evidence to the first Tribunal that the [Group A] had a grudge against his whole family because his father and brothers borrowed money from them and failed to pay it back. He said his brothers and father had all been killed. He said he didn’t remember much about it because it was quite a number of years ago and he didn’t have much schooling. He still fears the [Group A] in Italy and believes they would try to search for him to find him. He still has relatives back in Italy but he doesn’t remember them and has no communication with them. He is worried that if his son returns to Italy there is no-one to look after him or treat him for his illnesses.

15. The applicant’s mother gave evidence that she came to Australia with her own family in about 1969. Her first [children] were born here and then she and her husband returned to Italy. She said the moment they returned things started to happen because her husband’s grandfather had borrowed money from the mafia to start a business. She stated her [relative] helped them return to Australia. After they arrived back in Australia the [Group A] killed her husband’s father [and specified relatives]. She didn’t know if there was [Group A] in Australia, but in Italy they are very dangerous.

    Evidence at the Tribunal hearing on 15 December 2020

16. At the Tribunal hearing on 15 December 2020, the applicant told the Tribunal that his memory was not good and he didn’t wish to add to his earlier evidence.

17. At the hearing on 15 December 2020, the applicant’s [mother] gave evidence that while the family was in Italy between 1979 and 1990, the family lived only a [short] drive from the middle of town where the mafia were. When her husband lost his job in about 1989 and everything was going downhill, he borrowed about [amount range] lira from the mafia. She said that after a couple of months, people started to come around to their house and knock on the door looking for her husband and scaring the children. She said her husband avoided physical harm because he was never there. She said she reached out to her own mother in Australia, telling her that they were in trouble and people wanted to kill her husband and her children. Her mother sponsored them to return to Australia and paid some of the costs of that.

18. [The applicant’s mother] had previously provided the Tribunal with a statutory declaration dated 11 October 2019 in which she stated (in summary) that her son was everything to her, that he had been traumatised all his life, witnessing the rush of his family moving to Australia after borrowing money from the mafia and not being able to pay it back, as well as being raped by an extended family member when he was [specified ages] years old.

19. At the same hearing the applicant’s [father] gave evidence that he didn’t know exactly who he had borrowed the money from, but when he couldn’t repay the money they kept coming to the house for the money. He said he had so many debts that he left Italy for Australia and doesn’t return to Italy anymore. He said if his son were to return to Italy, those people would harm him because he never paid the money back.

20. The Tribunal also heard evidence on 15 December 2020 from the applicant’s siblings [Sibling A], [Sibling B] and [Sibling C]. [Sibling A] was aged about [age] at the time the family returned to Australia in 1990, [Sibling B] was aged about [age] and [Sibling C] was aged about [age]. Each of them gave evidence that they remembered people coming to the family home in Calabria looking for their father because their father owed them money. They each gave evidence that they were scared by the people coming to their home and the yelling that would occur. [Sibling A] stated that no-one was physically harmed, there was just yelling. They each gave evidence that they believed their brother would be killed or harmed by those persons if he returned to Italy.

21. [Sibling C] had previously provided the Tribunal with a statutory declaration dated 14 October 2019 in which stated [remembering] when [the] family left Italy for Australia in 1990. [Sibling C] stated [their] father made a bad decision with some bad people, with the result there were threats against him, including threats to kill. [Sibling C] stated the family had to leave home to come to Australia to be safe and had never spoken about it until now. [Sibling C] stated if [the applicant] was deported he would be in great danger.

22. [Sibling B] also provided a statutory declaration dated 17 October 2019, in which [it was] stated that it was very dangerous for [the applicant] to go back to Calabria because the mafia wanted to kill him after [their] family borrowed money 12 years ago and could not pay it back. [They] stated that in 1990 [the] family had to leave Italy and when they got to Australia they found out [the applicant] had been raped by an extended family member.

23. The Tribunal was also provided with written statements from two of [the applicant’s father’s] brothers in Italy, [Uncle A] and [Uncle B]. As the applicant’s former representative had previously advised the Tribunal that the family were unable to afford the cost of having those statements translated by an accredited translator, I allowed [the applicant’s mother] to provide the Tribunal with unofficial translations at the hearing on 15 December 2020.

24. The written statement of [Uncle A] was translated by [the applicant’s mother] as follows:

    My name is [Uncle A] and I live in Calabria with my wife and [children]. My brother [the applicant’s father] left for Australia in 1990 with his [kids]. I live next to [Town 1] where the mafia is and the people are very troubled people. I think if you send [the applicant] to Italy he will be in danger. We can’t take care of him, he has mental problems. He should be looked after by his mum and dad.

25. The applicant’s mother advised the Tribunal that the author of the second statement was her husband’s brother [Uncle B], who had died some months earlier aged [age]. The written statement of [Uncle B] was translated by [the applicant’s mother] as follows:

    My nephew is [the applicant]. They used to live in [a named town], Calabria. I was born in [year]. My brother [named] lives in Australia with his family. He left Italy with his [wife]. They did tell me about the situation about [the applicant], problems with the law. I’m very sick and I personally can’t look after [the applicant]. My brother [named] owes money to the mafia. My brother couldn’t pay it back. They are still after my brother. It’s good he is in Australia so they can’t get him. I’m worried about [the applicant], if he gets deported to Italy its dangerous for him or my brother. I’m [age] years old. He should be looked after by his family in Australia, don’t come to Italy. He is schizophrenic and has OCD and a mental problem. We don’t know how to take care of him. He doesn’t speak Italian or have any money or houses.

26. The Tribunal was asked to take oral evidence from [Uncle A] and the applicant’s [Relative B] in Calabria, Italy. Because the time difference between Australia and Italy meant the in-person Tribunal hearing occurred during the middle of the night in Calabria, the Tribunal did not take their evidence at this hearing. As the Italian witnesses would not be giving their evidence in person in any event, a video hearing was scheduled to hear their evidence at a time that sought to minimise the impact of the time difference.

    Evidence at the Tribunal hearing on 7 January 2021

27. On 7 January 2021 the hearing resumed by video to hear the evidence of the Italian witnesses, [Uncle A] and the applicant’s [Relative B]. The applicant and [his mother] participated in the hearing by video conference and provided telephone numbers on which to contact the witnesses in Italy.

28. Despite multiple attempts to contact those witnesses on the telephone numbers provided, the Tribunal was unable to make contact with the witnesses. While a person answered [Uncle A’s] phone when the Tribunal first called, that call was immediately terminated and subsequent calls rang out. [The applicant’s mother] told the Tribunal it was [Uncle A’s] wife who had answered the phone and as it was early in the morning [Uncle A] must also be home. Attempts to contact [Relative B’s] phone number diverted to voicemail.

29. Given the Tribunal was unable to contact the Italian witnesses, I considered adjourning the hearing to allow them a further opportunity to give evidence at a later date. For the following reasons I decided not to do so:

    ·[The applicant’s mother] advised the Tribunal that she had not informed the witnesses of the date of the hearing, nor that the Tribunal would call them during the hearing;

    ·She stated that she had last spoken to [Uncle A] last year when he wrote his letter and she thought he might be too afraid of the mafia to give evidence;

    ·She stated that she rang up [Relative B] a few months ago and told him the Tribunal was going to ring him but he freaked out, he was too scared of the mafia and that might be the reason he wasn’t answering the phone;

    ·She stated that her husband had not told either of the witnesses about his problems with the mafia, rather he had told only his [age]-year-old brother [Uncle B] who was now deceased;

    ·She said the witnesses [Relative B] or [Uncle A] could confirm the information in their letters and that the mafia were trouble-makers and active in their area but could not talk about her husband’s problems with the mafia in Italy. She said she wished her other brother-in-law [Uncle B] was still alive because he was the only one her husband spoke to about these events.

30. In these circumstances I considered it unlikely that the witnesses would participate in any future hearing. I also considered that even if they did participate, they would not be able to give relevant evidence about [the applicant’s father’s] experiences with the mafia in Calabria. I have taken into account the written statements of [Uncle A] and the applicant’s deceased [Uncle B] in assessing the applicant’s claims.

31. At the hearing on 7 January 2021, [the applicant’s mother] also gave evidence that her family had a lot of enemies that might hurt her son. She said that one of her cousins was shot and killed aged [age] by the mafia about 10-15 years ago, she thought it was because he owed the mafia money after using drugs but not paying for them. She said another cousin was also from [Town 1] and he was now scared of the mafia and a nephew was killed. She said her brother [named] was also doing drugs. She said another brother-in-law was also doing drugs and that he was dead, she thought he had died from something else.

    Analysis of claims

32. I note the applicant was a young child aged approximately [age range] at the time and has no independent memory of the claimed events. As well he suffers from a serious mental health condition and cognitive impairments as set out above. I accept his fear of the mafia in Italy is based on what he has been told by others and is genuinely held and I draw no adverse inference as to the credibility of his claims from any lack of detail or inconsistencies in his evidence.

33. I accept that the Calabrian mafia or [Group A] is an organised crime group based in the applicant’s home area of Calabria, Italy. I accept Calabrian mafia remains active throughout the area and that they use threats, violence and corruption to extort businesses and divert public funds[2]. However for the following reasons, I do not accept the applicant’s fear of the Calabrian mafia in Italy to be well-founded.

    [2]Threat Assessment: Italian Organised Crime , Europol, June 2013, p.7, 2020080712564 United Services Institute, December 2017, p.4, 20200807113206; On Tap Europe Organised Crime and Illicit Trade in Italy: Country Report Ganz A and Haenlein C, Royal United Services Institute, December 2017, p 3

1. Firstly, the evidence of his parents as to the events that are claimed to have taken place in Italy has changed significantly over the course of these proceedings:

   ·At the first Tribunal hearing on 23 August 2017, the applicant’s [father] gave evidence that his father and brothers borrowed money from the Calabrian mafia and failed to pay it back. He said that as a consequence, his brothers and father had all been killed. Similarly his mother [named] gave evidence that her husband’s father had borrowed money from the mafia to start a business and the Calabrian mafia killed her husband’s father [and specified relatives];

   ·However at the hearing on 15 December 2020, both the applicant’s parents told the Tribunal that it was the applicant’s father who had borrowed money from the Calabrian mafia. They each said that while the Calabrian mafia had made threats of harm against the family, no-one from the family had been killed or suffered physical harm at the hands of the mafia. They each gave evidence that while a number of [the applicant’s father’s] siblings had passed away in Italy, they all died from natural causes and no harm had been done to anyone in his family by the mafia;

   ·At hearing I discussed with the applicant’s parents that their evidence appeared very different to that which they had given the first Tribunal in 2017, noting that they had each said in 2017 that it was the applicant’s paternal grandfather and brothers who had borrowed the money and that those people had been killed by the mafia. The applicant’s father stated that it wasn’t the case that his relatives had been killed and perhaps he had misunderstood the question at the earlier hearing. The applicant’s mother said her husband didn’t understand proper Italian and had difficulty hearing and she didn’t know why his statements were different;

   ·These matters were also raised with the applicant pursuant to the provisions of s.424A in a letter dated 20 January 2021. While [the applicant’s mother] responded to that letter, she did not address these matters in her response.

2. Further I am concerned that the claims of harm from the Italian mafia were not raised in the representations made on behalf of the applicant seeking revocation of the Minister’s decision to cancel the applicant’s permanent visa during 2014 and 2015. The judgment of the Full Federal Court of Australia records that the applicant was represented by a solicitor in his communications with the Department about the cancellation of his visa and that representations were made to the Department on his behalf about a range of issues including the hardship he would suffer in Italy and the potential deterioration of his mental health in Italy[3]. At hearing on 15 December 2020 [the applicant’s mother] gave evidence that the issues relating to the family’s involvement with and fear of harm from the Calabrian mafia were not raised in these representations, saying that was her mistake and she was confused by all the court hearings.

   [3] [Details deleted.]

3. While I accept that [the applicant’s mother] may be confused about the multiple court proceedings that have occurred in the context of the cancellation of the applicant’s permanent visa and the subsequent lodgement of the protection visa, all of these court proceedings post-dated the Minister’s decision not to revoke the mandatory cancellation of the applicant’s permanent visa on 14 September 2015. I consider that if the applicant’s parents genuinely believed him at risk of harm from the Calabrian mafia on return to Italy, representations to that effect would have been made to the Minister when the Minister was considering the revocation of the cancellation of the applicant’s visa in 2014 and 2015.

4. In response to the Tribunal’s s.424A letter dated 20 January 2021 about this issue, [the applicant’s mother] stated that the family did not raise these matters with the Minister because they weren’t 100% sure if was still dangerous for the applicant to be returned to Italy and the problems they might have with the mafia. She stated that it was only when she rang Italy that she was made aware by her husband’s brother [Uncle A] that the risk and danger was still there and the mafia would still go after her family and son. She stated that even though it had been many years since they had left Italy [Uncle A] had informed her that it was still very dangerous for any member of her family to go to Italy. I note that explanation to be completely inconsistent with [the applicant’s mother’s] evidence at hearing that [Uncle A] was not aware of [the applicant’s father’s] problems with the mafia and I do not accept it to be true.

5. I have considered the oral and documentary evidence of the applicant’s siblings that if accepted, would tend to corroborate the applicant’s claims that the mafia were looking for the family before they returned to Australia in 1990. However all of the siblings were children at the time and the events described took place more than 30 years ago. While I accept their concerns for their brother are genuinely held, I am not satisfied they have any independent recollection of the claimed events and their evidence does not persuade me that the mafia or any other person or group were looking for the applicant’s father or any other member of the family before the family returned to Australia in 1990.

6. I have also considered the written statement from the applicant’s deceased uncle [Uncle B] to the effect that the applicant’s [father] owed money to the mafia which he could not repay and the mafia are still after him. However in circumstances where the evidence of the applicant’s mother and father has changed so significantly over the course of these proceedings, and they are the persons most closely connected with the claimed events, I do not accept that statement in relation to his [brother] to be true. I note that the written statement of the applicant’s uncle [Uncle A], as translated by [the applicant’s mother] at the hearing on 15 December 2020, makes no reference to any member of the family borrowing money from the mafia or being threatened with harm on this basis.

7. I do, however, accept other aspects of the statements of [Uncle A] and the applicant’s deceased uncle [Uncle B]. In particular I accept their statements about their relationship to the applicant and the presence of the mafia in Calabria. I accept they are concerned for the applicant should he be returned to Italy because of his mental health conditions and cognitive impairment and believe that he should be cared for by his family in Australia. I accept that they will not be able to provide care for the applicant if he is returned to Italy.

8. For all of the above reasons I do not accept the applicant’s [father] or any other member of his extended family borrowed money from the Calabrian mafia in or about 1989, nor that they were unable to repay that money. I do not accept that the Calabrian mafia went looking for [the applicant’s father] at his home in Calabria before the family left for Australia, nor that they threatened to harm him or his family. I do not accept that the Calabrian mafia would have any adverse interest in the applicant if he returns to Calabria, Italy.

9. I have considered [the applicant’s mother’s] evidence that her family has other enemies in Italy that might hurt her son. Her evidence about these matters was that her cousin was shot and killed aged [age] by the mafia 10-15 years ago; she thought this was because he owed them money after using drugs but not paying for them. She said another cousin was also from [Town 1] and he was now scared of the mafia and a nephew was killed. She said her [brother] was also doing drugs. She said another brother-in-law was also doing drugs and that he was dead, she thought he had died from something else. She acknowledged that these events had nothing to do with her son or her husband and I do not accept there to be a real chance the mafia would target the applicant for these reasons.

10. I have also considered [the applicant’s mother’s] assertion that the applicant will be killed by the mafia or other criminals because of his criminal acts in Australia. While I accept that the applicant has been convicted of some criminal acts in Australia, I consider the assertion that he will be harmed or killed by the mafia or other criminal groups in Italy for this reason to be merely speculative. There is no evidence before the Tribunal that would indicate the mafia or other criminal groups target individuals because of their criminal acts committed in other countries and I do not accept there to be a real chance the mafia would target the applicant for this reason.

11. It follows that I do not accept there to be a real chance that the Calabrian mafia would seek to harm the applicant if he were returned to Italy, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4]  For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm by the mafia as a necessary and foreseeable consequence of being removed from Australia to Italy.

    [4] MIAC v SZQRB [2013] FCAFC 33.

    Mental health and cognitive impairment

12. For the reasons set out above, I have accepted the medical evidence before me to the effect that that the applicant has lived with schizophrenia for many years, with  overlapping diagnoses of anxiety, depression, obsessive-compulsive disorder and a history of substance abuse including alcohol and cannabis.

13. I have accepted that separately from his diagnosed mental health conditions, his overall intellectual functioning falls in the ‘extremely low’ or ‘intellectually disabled’ range and that he has significant cognitive impairments of the degree that he would be expected to need ongoing support and assistance with his daily activities including attending appointments, administering medication and paying bills. I have accepted that as a result of his cognitive impairments, he may become easily overwhelmed and is at significant risk of reverting to alcohol abuse, gambling and criminal behaviour.

14. In his visa application the applicant stated that he was afraid he might relapse into a schizophrenic episode and be hurt or unable to control himself or die because of his illness. At the first hearing the applicant gave evidence that if he does not receive treatment for his schizophrenia, he has schizophrenic episodes where he becomes paranoid, seeing things and hearing voices. He was not aware of whether he could receive benefits in Italy, but he would require money to see a psychiatrist or psychologist and he would need to find an English-speaking doctor. He does not know if they have clozapine in Italy. He fears he will not able to get a job and he would be in hiding from the Calabrian mafia.

15. At the hearing before me the applicant and his mother gave evidence that he was receiving treatment for his mental health conditions while in immigration detention, including the anti-psychotic medication clozapine. He does not speak Italian and will not be able to communicate with the doctors in Italy. He does not have anywhere to live in Italy and needs his family to look after him. His family members in Italy are all elderly and cannot care for him.

16. I accept the applicant will need ongoing psychiatric care including regular appointments with a psychiatrist, the prescription of medication and tests to monitor the efficacy and side effects of that medication. I accept that even with such ongoing treatment, he may still experience a relapse of his schizophrenia and require more acute emergency treatment, including hospitalisation. I accept the applicant’s medical conditions mean that he may be unable to find employment in Italy.

17. I accept the applicant understands Italian but speaks only a little of that language and that this will make communications with medical professionals more difficult. I accept his remaining relatives in Italy are extremely limited in the care they can give him and that he may need housing assistance or even residential care in the foreseeable future.

18. At hearing I discussed with the applicant and [his mother] country information about the public health and welfare systems in Italy and the treatment potentially available to the applicant if he is returned to Italy:

    ·The World Health Organisation reports that public health care in Italy is guaranteed by the National Health Service, Servizio Sanitario Nazionale and has undergone a transition from a hospital-based system of care to a model of community mental health care[5]. Italian mental health services are grounded on a community-based model of care, which is organised according to districts serving a defined geographical area. Multidisciplinary teams of psychiatrists, psychologists, nurses, social workers, occupational therapists, rehabilitation counsellors, and auxiliary staff are distributed across inpatient and outpatient services. These services are coordinated by the department of mental health, which provides a full range of psychiatric care, from acute emergency treatment to long-term rehabilitation[6]. Patients with schizophrenia have been treated with clozapine in Italy since the 1990s[7];

    ·Social security for the unemployed is based on contributions made by employees through their wages and also requires a person to be capable of and available for work. Disability pensions (pensione di inabilità) and partial disability allowance (assegno ordinario di invalidità) also require a person to have at least five years contributions to the Italian social security system[8];

    ·Italy also has a disability social pension (pensione di invalidita civile) and a partial disability social allowance (assegno sociale di invalidità) for people who have a partial or full loss of work capacity. Those payments are income tested but otherwise available to people younger than retirement age who are assessed as having partial or total loss of work capacity without reference to their past contributions[9]. These benefits may include cash benefits in the form of pensions as well as benefits in kind such as home assistance and care, stays in care facilities or residential facilities and support for education and training[10];

    ·Australia and Italy also have a Social Security Agreement, the purpose of which is to help people who move between Australia and Italy to get a pension in each country. The agreement provides for the grant of a pension by one country even though a person is living in another, allows for the transfer of pensions between countries and allows people to add together periods of working life residence in Australia and Italy to meet the qualifying periods to obtain a pension in one or both countries. It covers both the Disability Support Pension and the Age Pension[11].

    [5] World Health Organisation Corrado Barbui, Davide Papola & Benedetto Saraceno The Italian mental health-care reform: public health lessons

    [6] Armando D'agostino Benedetta Demartini Simone Cavallotti And Orsola Gambini ‘Mental Health Services In Italy During The Covid-19 Outbreak’ The Lancet Psychiatry, 2020-05-01, Volume 7, Issue 5, Pages 385-387

    [7] Deliliers, Giorgio (2000). Blood dyscrasias in clozapine-treated patients in Italy. Haematologica. 85. 233-7; Galderisi, S., & Bucci, P. (1998). The Italian Clozapine System (ICLOS) for treatment monitoring: More than 2 years of experience. European Psychiatry, 13(1), 52-52. doi:10.1016/S0924-9338(97)86752-1

    [8] 'Social Security Programs Throughout the World; Europe 2018 - Italy', United States Social Security Administration, 01 September 2019, 20200807134240

    [9] ''Social Security Programs Throughout the World; Europe 2018 - Italy', United States Social Security Administration, 01 September 2019, 20200807134240

    [10] Italy - Employment, Social Affairs & Inclusion - European Commission (europa.eu)

    [11] >

    The applicant stated he did not think he would be eligible for social security benefits in Italy as he had not been employed in that country and therefore had made no contributions to their social security system. He said that he had started to apply for a disability pension in Australia in the past but he was jailed before his application was finalised.

19. [The applicant’s mother] said that her son has no money, no house and nowhere to get his medication in Italy. He was previously on medication that didn’t work but has been much better with the new medication. He needs regular blood tests and heart tests to monitor the effects of the clozapine. [The applicant’s mother] said that while her son may be eligible for a disability pension in Italy, he should not have to live in a psychiatric institution in Italy for his whole life when he has family who can care for him in Australia.

    Refugee assessment

20. Section 5J(1)(a) provides that a person has a well-founded fear of persecution if, among other things, the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I accept that ‘persons experiencing mental health conditions and cognitive impairment’ and similarly constituted groups may comprise a particular social group for the purposes of s.5L, considering that group is identifiable by the common characteristic of its members’ mental illness and cognitive impairment and that it is a cognisable group within Italian society.

21. Not all kinds of harm constitute ‘persecution’ for the purposes of the refugee assessment. Persecution must involve ‘serious harm’ as set out in s.5J(4)(b) and must also involve ‘systematic and discriminatory conduct’ as set out in s.5J(4)(c).

22. I have accepted the applicant’s medical conditions mean that he may be unable to find employment in Italy. I accept his lack of employment history in Italy means that he may not be eligible to receive unemployment benefits or a disability pension or partial disability allowance on return to Italy. However Italy also provides a disability social pension for people younger than retirement age who are assessed as having partial or total loss of work capacity, without reference to their past contributions. As set out above, these benefits may include pensions as well as home assistance and care, stays in care facilities or residential facilities and support for education and training. Further the Social Security Agreement between Australia and Italy assists people who move between Australia and Italy to get a pension in each country and covers both the Disability Support Pension and the Age Pension. For these reasons I do not accept he will face significant economic hardship such as would threaten his capacity to subsist.

23. I am satisfied that as an Italian citizen, the applicant will be eligible for public health care in Italy. The information before me indicates that public health care in Italy is guaranteed by the National Health Service and is administered by multidisciplinary teams of medical professionals and auxiliary staff across inpatient and outpatient services, coordinated by the department of mental health. The National Health Service provides a full range of psychiatric care, from acute emergency treatment to long-term rehabilitation and available anti-psychotic medication includes clozapine, with which the applicant is currently being treated in Australia.

24. I accept [the applicant’s mother’s] submission that the language difference and the applicant’s need for assistance with day to day tasks may make it difficult for him to access the available medical services, at least in the initial period after his arrival. Not all kinds of harm will constitute persecution for the purposes of the refugee assessment, rather persecution must involve ‘systematic and discriminatory conduct’ (s.5J(4)(c)).

1. There is no information before me that would suggest that persons with mental health conditions and/or or cognitive impairments are systematically and discriminatorily denied services by the Italian authorities or members of the Italian community. On the contrary, the country information cited above indicates the National Health Service provides a full range of mental health services and psychiatric care. In these circumstances I do not accept the applicant will be systematically or discriminatorily denied health care and the criterion set out in s.5J(4)(c) is not met.

100.   I have accepted the medical evidence to the effect that without intensive support, there is a significant risk of the applicant reverting to alcohol abuse, gambling and criminal behaviour noting that the material before me indicates all those events occurred in Australia prior to the applicant’s detention.

101.   In considering whether such events are capable of constituting ‘persecution’ for the purposes of the Act, I note the Federal Court of Australia has held that harm which arises as the natural consequence of an applicant’s illness or is self-inflicted will not on its own satisfy the requirements of s.36(2)(a). This is because the concepts of ‘serious harm’ and ‘persecution’ are concerned with acts perpetrated by others which cause the non-citizen to suffer harm.

102.   In CSV15 v MIBP, the court held that:

… the concepts of “persecution” and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes “serious harm”, s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.

Section 36(2)(a) is thus concerned with persecution of the non-citizen by other persons for Convention reasons, and it is not directed to whether a person suffers from an illness[12].

[12] CSV15 v MIBP [2018] FCA 699; see also CHB16 v MIBP [2019] FCA 1089 and EZC18 v MHA [2019] FCA 2143

103.   While the court’s decision in that case concerns an older version of the legislative provisions concerning the definition of a refugee, the requirement that persecution involves systematic and discriminatory conduct is reproduced in the current legislation in s.5J(4)(c). While I accept the applicant may suffer harm if he reverts back to alcohol abuse and gambling, I consider that harm would arise as a natural consequence of his illness or from his own actions. While it is not impossible that others would seek to harm him if he reverts to alcohol abuse and gambling, I consider that possibility to be merely speculative. For these reasons I do not accept there to be a real risk the applicant will face harm in Italy as a result of his reversion to gambling or alcohol abuse as the result of systematic and discriminatory conduct by others.

104.   I accept that if the applicant reverts in criminal offending after being returned to Italy, there is a real chance he will come to the adverse attention of Italian law enforcement authorities and he may face arrest, prosecution and penalties. Prosecution and/ or punishment for criminal offences under laws that apply to the population as a whole will not generally constitute persecution unless those laws are themselves discriminatory or are applied in a selective or discriminatory way for one of the reasons set out in s.5J(1)(a).

105.   There is nothing in the material before me that would suggest that Italy’s criminal laws are discriminatory, nor that they would be applied to the applicant in discriminatory manner for reason of his membership of the particular social group ‘persons experiencing mental health conditions and cognitive impairment’. Nor do I accept that Italy’s criminal laws would be applied to the applicant for the ‘essential and significant reason’ of his membership of that particular social group. Rather I consider the essential and significant reason for the future application of any criminal laws to the applicant would be his criminal offending. For these reasons I find that any arrest, detention, prosecution or penalty to which the applicant may become subject as a result if he reverts to criminal offending in Italy would not have a discriminatory intent or impact. Rather I find it would arise under a law of general application and does not give rise to persecution.

106.   For the above reasons I do not accept the applicant has a well-founded fear of persecution for the essential and significant reasons of his membership of the particular social group, ‘persons experiencing mental health conditions and cognitive impairment’ if he is returned to Italy, now or in the reasonably foreseeable future.

Complementary protection

107.   I have accepted the applicant will need ongoing psychiatric care and that even with such ongoing treatment, he may still experience a relapse of his schizophrenia and require more acute emergency treatment, including hospitalisation. I have accepted the medical evidence before me to the effect that he would be expected to need ongoing support and assistance with his daily activities including attending appointments and administering medication. I have accepted that he may be unable to obtain employment in Italy and his remaining relatives there are extremely limited in the care they can give him. I have accepted that he may need housing assistance or even residential care in the foreseeable future.

108.   In considering whether there is a real risk the applicant will be subjected to ‘significant harm’ for reason of his mental health conditions and cognitive impairment under the complementary protection criterion, s.36(2A) provides that 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.

109.   As set out above, the information before me indicates that public health care in Italy is guaranteed by the National Health Service and is administered by multidisciplinary teams of medical professionals and auxiliary staff across inpatient and outpatient services, coordinated by the department of mental health. The National Health Service provides a full range of psychiatric care, from acute emergency treatment to long-term rehabilitation and available anti-psychotic medication includes clozapine, with which the applicant is currently being treated in Australia. The Italian authorities also provide public welfare measures including pensions as well as home assistance and care, stays in care facilities or residential facilities and support for education and training.

110.   In relation to a person being ‘arbitrarily deprived of their life’, the Australian courts have held that s.36(2A)(a) is restricted to the risk of being deprived of life by the intentional or deliberate act or omission of a third person or persons.[13] The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ contained in s.5(1) of the Act each concern harm resulting from an act or omission where that harm is intentionally inflicted by other persons.

[13] EZC18 v MHA [2019] FCA 2143 at [47]; MZAAJ v MOI [2015] FCCA 151

111.   It is not suggested that the Italian authorities would intentionally deprive the applicant of his life for any reason and I do not accept there to be a real risk this would occur. Nor do I accept there to be a real risk that the Italian authorities or any other person or group will intentionally harm the applicant for reasons of his mental health conditions and cognitive impairment, such as might constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment for the purposes of s.36(2A). For the reasons set out above, I have not accepted there to be a real risk the applicant will be harmed or killed by the mafia or other criminal groups for reasons of his father’s experiences with the mafia or the applicant’s own criminal activities.

112.   I accept the applicant’s return to Italy will be both difficult and distressing for him given that he has lived in Australia since he was a young child, he experiences serious mental health conditions and a cognitive impairment, he does not speak Italian and he will be separated from his immediate family. I have accepted that as a result of his mental health conditions and cognitive impairments, he may become easily overwhelmed and is at significant risk of reverting to alcohol abuse, gambling and criminal behaviour.

113.   The Australian courts have held that the definition of ‘significant harm’ is directed towards harm suffered because of the acts of other persons. In CSV v MIBP, the court held that:

Like s 36(2)(a), s 36(2A) does not encompass the harm the appellant claims she will suffer from depression if she returned to India, just as it does not cover the harm that a person would suffer as the result of any other illness arising on the return to the receiving country[14].

[14]CSV15 v MIBP [2018] FCA 699

114.   In CHB16 v MIBP, the court agreed with the court’s conclusions in CSV v MIBP, stating:

66. In my view, these conclusions, with which I respectfully agree, apply with even more force to the conduct and harm described in s 36(2A) of the Act.

67. First, the language used in s 36(2A) of “depriv[ing]” or “subject[ing]” points to the involvement of others. Secondly, depriving a person of life, carrying out the death penalty, subjecting a person to torture or subjecting a person to treatment or punishment that is cruel or inhuman or degrading, are all acts that quintessentially require the involvement of another person or persons, usually an arm of government, or somebody with sufficient power or authority to perpetrate such acts. Thirdly, the protective purpose of the complementary protection provisions in s 36(2)(aa) suggests the involvement of persons against whose conduct such protection is necessary. . .

115.   For the reasons set out above I have found that harm from alcohol abuse and/or gambling would arise as a natural consequence of the applicant’s illness or from his own actions. I have not accepted there to be a real chance that the applicant would be subjected to harm by others as a result of any future reversion to gambling or alcohol abuse. As the ‘real risk’ test is the same as the ‘real chance’ test, I do not accept there to be a real risk that the applicant would be subjected to harm by others as a result of any future reversion to gambling or alcohol abuse. For these reasons I do not accept that any harm the applicant would experience if he were to revert to gambling or alcohol abuse on return to Italy falls within the definition of significant harm contained in s.36(2A).

116.   I have accepted that if the applicant engages in criminal conduct after being returned to Italy, there is a real chance he will come to the adverse attention of Italian law enforcement authorities and he may face arrest, prosecution and/ or imprisonment.

117.   In considering whether any future arrest, prosecution and/ or imprisonment could constitute ‘torture’, ‘cruel and inhuman treatment or punishment’ or ‘degrading treatment or punishment’, I note the definitions of those terms contained in s.5(1) exclude any act or omission arising from lawful sanctions that are not inconsistent with Article 7 of the International Convention on Civil and Political Rights (ICCPR). Article 7 provides that no one shall be subjected to torture or to cruel or inhuman treatment or punishment. It states that in particular, no one shall be subjected without his free consent to medical or scientific experimentation.

118.   At hearing I discussed with the applicant and [his mother] country information to the effect that Italy would appear to have an appropriate criminal law, a sophisticated law enforcement system and a well-trained and visible police force[15]. There is nothing in the material before me that would suggest that Italy’s criminal laws are inconsistent with the ICCPR and I find that they are not.

[15] OSAC Italy 2020 Crime & Safety Report: Milan at Italy 2020 Crime & Safety Report: Milan (osac.gov)

119.   I do not accept there to be a real risk that as a result of the applicant’s potential future criminal activities, the applicant will be arbitrarily deprived of his life by the Italian authorities or any other person or group, rather I consider that to be merely speculative. It is not suggested that the death penalty will be carried out on the applicant by the Italian authorities for any reason if he is returned to Italy. For these reasons I do not accept there to be a real risk the applicant will be subjected to ‘significant harm’, as that term is exclusively defined in s.36(2A) of the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to Italy.

Other matters

120.   The applicant’s [mother] and [Sibling B] have given evidence that the applicant was sexually assaulted by a member of the extended family in Italy as a young child. I accept their evidence in that regard and I further accept [the applicant’s mother’s] evidence that this was deeply distressing for the applicant and his family.

121.   It is not suggested by anyone in the review proceeding that there is any future risk of harm to the applicant from the perpetrator, rather [the applicant’s mother’s] evidence is that the perpetrator of that assault died some years ago. For these reasons I find there is no real chance that the applicant will face serious harm from the perpetrator if he returns to Italy, now or in the reasonably foreseeable future. For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm from the perpetrator as a necessary and foreseeable consequence of being removed from Australia to Italy.

CONCLUSIONS

122.   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).

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

124.   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 criteria in s.36(2).

DECISION

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

Alison Murphy
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.

…