1914404 (Refugee)

[2019] AATA 6486

1914404 (Refugee) [2019] AATA 6486 (24 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914404

COUNTRY OF REFERENCE:                   Canada

MEMBER:Paul Windsor

DATE:24 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2019 at 10:12am

CATCHWORDS
REFUGEE – protection visa – Canada – Ministerial intervention sought – fear of harm not for convention reason – no well-founded fear of persecution – unique or exceptional circumstances – compassionate or compelling circumstances – medical conditions – mental health issues – age – serious, ongoing and irreversible harm and continuing hardship to applicant and husband – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2




Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 June 2019 to refuse to grant the applicant, Mrs [A], a Class XA (subclass 866) Protection visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs [A], who claims to be a citizen of Canada, applied for the visa on 26 April 2019.

3. In her Protection visa application Mrs [A] states she was born in [Ontario] Canada on [date].  She indicates she was married in Canada [in] October 2014 to Mr [B].  In the application Ms [A] claims that she came to Australia to be with her husband, who is an Australian, and they spent all their money coming to Australia and doing a ‘spousal visa’.  It is claimed that if she had to return to Canada Mrs [A] would experience trauma due to severe isolation, would have no place to go to, would miss the care provided by her husband, who is her carer, and would not be able to survive alone.

4. The delegate refused to grant the visa on the basis that Mrs [A]’s claimed fear of harm in Canada is not for one of the five reasons set out in s.5J(1) of the Act.  That is, her claims do not relate to her race, religion, nationality, political opinion or membership of a particular social group.  In relation to the complementary protection criterion the delegate, noting that Mrs [A] receives a Canadian disability pension and country information indicating that Canada has a ‘robust social security system’ and a universal health care system, found that Ms [A] would have access to money, accommodation and medical treatment as required and would not face a real risk of suffering treatment amounting to significant harm as a necessary and foreseeable consequence of being removed from Australia to Canada.

5. Ms [A] applied to the Tribunal for review of this decision on 6 June 2019.

6. Mrs [A] appeared before the Tribunal on 16 July 2019 and 20 September 2019 to give evidence and present arguments.  The Tribunal hearing was conducted in the English language.  Mrs [A]’s husband, Mr [B], also attended the hearing as a witness.  At Mrs [A]’s request her service dog [was] also present during the hearing.

7. Mrs [A] was represented in relation to the review by her registered migration agent.  The representative attended the hearing.

   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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The claims from Ms [A]’s Protection visa application are summarised as follows:[1]

    ·She did not experience harm in Canada.

    ·She left Canada to be with her husband [Mr B] who is an Australian.  They spent all their money coming to Australia ‘doing spousal visa’.

    ·She has a [family] in Canada but they cannot take care of her.  She has no friends in Canada.  Her husband of over 30 years is her carer.  She is frail and sick.  She has no place to go in Canada.  She would not be able to survive alone.  She would be isolated and may not be able to return to Canada with her service dog.  She would experience trauma due to severe isolation and miss the care given by her husband.  He would be depressed without her.

    ·She has a Canadian pension which is now about [amount] a month and would not need Australian money.

    ·It may not be about protection but may be about separation of a wife from her loving husband who has been there for her and will always be there for her.

    [1] See Departmental file [specified].

15. Ms [A] provided supporting documents to the Department indicating that she suffers from [medical condition 1] which affects her [capacity] to undertake daily activities; was diagnosed in Canada as having had a history of [mental health issues] but appears more likely to have a [different mental health issue]; has [medical condition 2]; and could become [details deleted] when flying if a flight is too long without stopovers.

16. On 20 September 2019 Mrs [A]’s representative forwarded to the Tribunal a submission of the same date and supporting documents in support of the review application.[2]  Relevant additional matters raised in the submission of 20 September 2019 are summarised as follows:

    [2] See folios 105-117 of the Tribunal file.

    ·They accept that the review applicant does not meet the criteria for the grant of a Subclass 866 Protection visa.

    ·They submit, however, that it is in the public interest for the review applicant to receive an Australian visa and respectfully request the matter be referred to the Minister for Immigration, Citizenship and Multicultural Affairs for consideration of the exercise of his powers in accordance with section 417 of the Act.

    ·It is submitted that the case meets the requirements of the relevant Ministerial Guidelines regarding the referral of cases for the Minister’s consideration because the case has unique or exceptional circumstances.  In this case it is submitted that:

    ­There are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen;

    ­There are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person; and

    ­The Department may determine that the person cannot be returned to their country of citizenship due to circumstances outside their control.

    ·While the review applicant could return to Canada to lodge a subclass 309/100 visa application, this would separate her from her husband of more than thirty years, would exacerbate the symptoms of her health concerns (she has complex mental and physical health [issues], and place the couple under significant financial strain.  A medical opinion may indicate that she is not physically capable of travelling outside of Australia.

    ·The review applicant previously made a subclass 820/801 application which was refused on health grounds, based on the estimated [total] cost to the Australian community.  The delegate noted that no evidence was put forward to indicate any ability to mitigate the estimated costs, nor was any evidence put forward to indicate compassionate or compelling circumstances.  This could have been amended if the review applicant had successfully made a valid review application, noting that she is cared for by her husband in their private residence and they are supported by their Canadian pension income.

    ·She was unlawful for a short period of time because her subclass 010 bridging visa expired due to an error which affected the payment of the fee for review by the Tribunal of the subclass 820/801 refusal decision.  She subsequently sought and was granted a subclass 050 Bridging visa.

    ·The applicant poses no risk to Australian society or security or to Australia’s international relations.  She has no criminal record.

    ·While the review applicant previously indicated the answer of ‘no’ to the question of whether she has or ever had any serious disease (including mental illness), condition or disability, this answer must be viewed in the context of her suffering from mental illness, specifically [specified] disorder, and that the application was completed without professional advice or assistance.

    ·Section 48 of the Act and relevant Schedule 1 requirements for the Class BS (subclass 801) visa prevent the review applicant from making a further subclass 820/801 application whilst in Australia.  The review applicant and her husband currently support themselves using Canadian pensions and the cost of another visa application is highly prohibitive.

    ·If not for a simple error with payment of the previous Tribunal review application fee, the review applicant would have exercised her review rights in relation to the subclass 820/801 refusal decision.

    Findings and reasons

    Identity

17. On the basis of the copies of her Canadian passport provided to the Department, the Tribunal accepts that Mrs [A] is a citizen of Canada and that her identity is as claimed.  The Tribunal accepts that Canada is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.[3]

    [3] See the Departmental file.

18. The issue in this case is whether Mrs [A] has a well-founded fear of being persecuted for one or more of the reasons of her race, religion, nationality, membership of a particular social group, or political opinion if she was returned to Canada; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Canada, there is a real risk she will suffer significant harm.

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

    Assessment of claims

20. In her Protection visa application Mrs [A] indicates that she did not experience harm in Canada. 

21. In the submission of 20 September 2019 the representative indicates that Mrs [A] and her husband accept that she does not meet the criteria for the grant of a Subclass 866 Protection visa.  At the hearing the Tribunal asked Mrs [A] to confirm this is the case, which she did.

22. Accordingly, the Tribunal finds that Mrs [A] does not have a well-founded fear of persecution within the meaning set out in s.5J(1) of the Act.  The Tribunal finds, therefore, that Mrs [A] is not a person in respect of whom Australia has protection obligations under the refugee criterion in s.36(2)(a).

    The complementary protection criterion

23. Having concluded that Mrs [A] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).  The Tribunal also is not satisfied that Mrs [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Member of the same family unit

24. There is no suggestion that Mrs [A] 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, Mrs [A] does not satisfy the criterion in s.36(2).

    DECISION

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

    SECTION 417 - REFERRAL TO THE MINISTER

    Applicant request for referral – Tribunal referring

26. Mrs [A]’s representative has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

27. Mrs [A]’s circumstances relevant to the exercise of the discretion, identifying the particular reason for which referral has been requested, are set out in the representative’s submission of 20 September 2019, as summarised at paragraph 16 above. 

28. The Tribunal has considered Mrs [A]’s case and the ministerial guidelines relating to the discretionary power set out in Departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.

29. The Tribunal supports the representative’s contention that there are unique or exceptional circumstances in this case.  In particular, the Tribunal considers that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, in this case Mrs [A]’s husband, Mr [B], who is [a certain age].  Mr [B] and Mr [A] have been in a spousal relationship for thirty years.  Mr [B] returned to Australia in 2014 after living and working (as [in] Canada for many years, where he met and married Mrs [A].  Mr [B] is retired [now] but provides care for Mrs [A].  The Tribunal has observed his interactions with Mrs [A] and finds that he cares for her deeply and is committed to her welfare.  The Tribunal considers that it would cause him great and ongoing emotional distress and extreme hardship if Mrs [A] had to return to Canada. 

30. The Tribunal also considers it is clear that there are compassionate circumstances regarding Mrs [A]’s age, health and psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her.  She is [a certain age].  The Commonwealth Medical Officer found she suffers moderate functional impairment secondary to [medical condition 1], and also shows [evidence] of [medical condition 3], resulting in her [being] largely dependent in Activities of Daily Living.  She also has a background of [mental health issues] and has previously spent [a number of] months admitted as an inpatient at a psychiatric facility (where there was positive progress with her care including demonstrated reliability with her medication compliance).  The Tribunal considers that return to Canada, potentially away from the love and support provided by Mr [B] and the environment she has become familiar with (including in relation to her service dog) would result in serious, ongoing and irreversible harm and continuing hardship to her.

31. Accordingly, the Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.417 of the Act, in relation to the Minister’s discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, should the Minister consider it is in the public interest to do so.

    Paul Windsor
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …