1912318 (Refugee)

1912318 (Refugee) [2024] AATA 4199 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Penny Dimopoulos (MARN: 0636233)
CASE NUMBER: 1912318

COUNTRY OF REFERENCE: Iraq
MEMBER:Jennifer Ermert
DATE:12 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Migration Act.

Statement made on 12 September 2024 at 4:37pm
CATCHWORDS

REFUGEE – protection visa – Iraq – religion – Chaldean Christian – member of the family unit – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 1.12
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2019 to refuse to grant the applicant a Class XA Subclass 866 protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 4 March 2016 together with her late husband, [named]. The delegate refused to grant the applicant and her late husband the visas on the basis that they are not persons in respect of whom Australia has protection obligations.
The applicant and her late husband applied for review of the delegate’s decision on 17 May 2019.
On 19 July 2022, the applicant’s representative wrote to the Tribunal advising that her late husband has passed away and provided a copy of the death certificate as evidence.
The applicant was invited to attend a hearing with the Tribunal on 29 July 2024. On 16 July 2024 the applicant’s representative wrote to the Tribunal advising that the applicant was unable to participate in the hearing due to dementia, and requested that a decision on the review be made on the papers.
A copy of a letter from the applicant’s consultant physician in geriatric medicine provided to the Tribunal confirmed that the applicant suffers from gradual cognitive decline which has become more evident since the death of her late husband, and that the decline has become faster and more severe in the preceding 6 months. The doctor opined that the applicant has no capacity to participate in the hearing and that any evidence she gave would be impaired and unreliable.
Accordingly, the hearing on 29 July 2024 was cancelled and the Tribunal now makes a decision on the papers on the basis of material available.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
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.
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 because she is either a refugee (s 36(2)(a)) or a person who satisfies the complementary protection criterion (s 36(2)(aa)).
Alternatively, given the applicant’s dementia which makes her wholly dependent on the care provided by her adopted son, [Son A] with whom she lives together, the issue is whether the applicant is able to meet s 36(2)(b)(i) by being a member of the same family unit as [Son A] who the Tribunal has found satisfies s 36(2)(a) in a separate review decision in relation to him.[1]
[1] Tribunal case number 1912319.
Identity and country of nationality
The applicant claims to be a citizen of Iraq. She provided an uncertified copy of the biodata page of her Iraqi passport bearing her claimed name and date of birth to the Department in connection with her protection visa application. In the absence of evidence that the passport in relation to which the copy of the biodata page was provided to the Department is a bogus document as defined in s 5(1) of the Act, and given checks of relevant departmental systems have not raised any concern that the applicant has provided false identities, the delegate has accepted the applicant’s claimed identity and citizenship of Iraq.
The Tribunal has considered the aforementioned identity documents on the applicant’s departmental file. In the absence of evidence that the applicant is not the person she claims to be, the Tribunal also accepts the applicant’s claimed identity and citizenship.
The Tribunal finds the applicant’s country of nationality is Iraq.
Personal background and protection claims
The applicant’s personal background and protection claims (based in part on her late husband’s claims) can be summarised as follows:
·She is a Chaldean Christian woman from northern Iraq.
·She has an adopted son, [Son A], as she and her late husband could not have children of their own.
·[Son A] used to own and run a wholesale [business 1] in Iraq.
·When [Son A] came to work in Australia on a Class UC Subclass 457 business visa, he leased the business to his employee, [Mr A], who is allegedly from an influential and powerful tribe in Erbil.
·In October 2015, her late husband was approached by [Mr A] who threatened her late husband with death if he went near the [business 1], as [Mr A] wanted to take over the shop as his own without paying for it.
·[Son A] returned to Iraq but [Mr A] also threatened to kill him if he tried to stop him from taking over the shop.
·Fearing for [Son A’s] life, her late husband urged [Son A] to return to Australia.
·Worried also about their own safety, her late husband applied for visitors visas for them both so that they could travel to Australia with [Son A].
·Although she and her late husband missed their life in Iraq after arriving in Australia [in] December 2015, they were afraid to go back because the situation in Iraq for Christians was getting worse due to religious extremism and ISIS.
Although the delegate who interviewed her late husband accepted that she and her late husband are Chaldean Christians, as well as the claims in relation to the lease of [Son A’s] [business 1] shop to [Mr A], the delegate refused their protection visa application because the delegate was not satisfied that they face a real chance of serious harm in the reasonably foreseeable future in Iraq for reasons of their Christian faith, nor was the delegate satisfied that [Mr A] poses on ongoing threat of harm to her and her late husband.
REASONS FOR THE DECISION
Given the current circumstances of the applicant, and for convenience, the Tribunal has considered first whether she meets s 36(2)(b)(i) of the Act by being a member of the same family unit as her adopted son [Son A] who the Tribunal has found satisfies s 36(2)(a) in a separate review decision in relation to him.
For the reasons discussed below, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration, with the direction that the applicant meets s 36(2)(b)(i) of the Act.
Member of the same family unit
One of the criteria for the grant of a protection visa in s 36(2) is that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen who satisfies s 36(2)(a) and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b).
Section 5(1) of the Act provides that a person is a member of the same family unit as another person if either is a member of the family unit of the other or each is a member of the family unit of a third person. ‘Member of the family unit’ has meaning set out in reg 1.12 of the Regulations, which provides the following in relation to protection visas at reg 1.12(4):
(4)A person is a member of the family unit of another person (the family head) if the person is:
(a)    a spouse or de facto partner of the family head; or
(b)    a dependent child of:
(i)the family head; or
(ii)a spouse or de facto partner of the family head; or
(c)    a dependent child of a dependent child of:
(i)the family head; or
(ii)a spouse or de facto partner of the family head; or
(d)    a relative of the family head or of a spouse or de facto partner of the family head, who:
(i)does not have a spouse or de facto partner; and
(ii)is usually resident in the family head’s household; and
(iii)is dependent on the family head.
The Tribunal has had regard to the letter from the applicant’s consultant physician in geriatric medicine confirming that the applicant suffers from dementia with significantly declined cognitive ability. The Tribunal has also had regard to the testimony of the applicant’s adopted son [Son A] during his hearing before the Tribunal in relation to his review application, in which [Son A] confirmed that the applicant (and her late husband) have been living with him and his family since arriving in Australia, and that he and his family are providing the applicant with round-the-clock care and supervision because of her dementia. The Tribunal is satisfied in the circumstances that the applicant meets reg 1.12(4)(d) of the Regulations and that she is therefore a member of the same family unit as [Son A].
Accordingly, the Tribunal finds that the applicant satisfies s 36(2)(b)(i) of the Act, and having so found, it is not necessary for the Tribunal to assess in detail whether the applicant also meets s 36(2)(a) or s 36(2)(aa) of the Act in her own right, although for reasons similar to those which the Tribunal discussed in its review decision in relation to [Son A], the Tribunal considers it is likely that the applicant, as a Chaldean Christian from Iraq, would also meet the definition of ‘refugee’ for the purpose of s 36(2)(a) of the Act.
Finally, the Tribunal finds that the applicant does not have a right to enter and reside in any country apart from Australia and Iraq, and as such s 36(3) of the Act does not apply in her circumstances.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(b)(i) of the Act, on the basis of being a member of the same family unit as her adopted son [Son A] who the Tribunal has found satisfies s 36(2)(a) of the Act in a separate review decision.
Jennifer Ermert
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.
…

[2024] AATA 4199

12 September 2024

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