1929548 (Refugee)

[2020] AATA 1133

1929548 (Refugee) [2020] AATA 1133 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929548

COUNTRY OF REFERENCE:                   New Zealand

MEMBER:L. Symons

DATE:6 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 January 2020 at 2:10pm

CATCHWORDS

REFUGEE – protection visa – New Zealand – fear of harm from father and gang associates – credibility – voluntary return with no harm – no contact with father, paternal relatives or gang – long delay before applying for protection – new claim raised at tribunal hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2)(a), 65

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 Home Affairs on 10 October 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of New Zealand, arrived in Australia [in] October 1986 and departed [in] October 1999. He returned to Australia [in] November 1999 as the holder of a [temporary] visa. This visa was cancelled on 17 October 2017. He sought review of that decision and on 8 February 2019 the Tribunal (differently constituted) affirmed the decision not to revoke the visa cancellation. He sought judicial review of that decision and [in] August 2019 the Federal Court dismissed his application. On 13 September 2019, he was issued with a Notice to Remove and was scheduled for removal from Australia on 19 September 2019.

3. The applicant applied for a Protection visa on 17 September 2019. The delegate refused to grant the visa on 9 October 2019. He applied to the Tribunal on 18 October 2019 for a review of that decision.

4. The applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments.

5. The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in his application for a Protection visa lodged on 17 September 2019 are summarised as follows:

    ·He fears returning to New Zealand as his biological father will harm him.

    ·His mother left New Zealand in 1986 because of violence at the hands of his father.

    ·He and his [sibling] were rescued from almost being drowned by their father who wants to “wipe out anything to do with him losing his first family”.

    ·On the last occasion his mother had contact with his father, she was told he would get her son (the applicant) for “losing his family”.

13. The applicant did not provide any documentary evidence in support of his application to the Department.

14. The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 9 October 2019.

    Receiving country

15. The applicant claims to be a citizen of New Zealand and confirmed this in his evidence to the Tribunal. The evidence before the Tribunal indicates that he has not held a passport since [2004] and that he was issued with a travel document by the New Zealand government [in] 2019 ([number]). In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of New Zealand and that he is outside his country of nationality. The Tribunal finds that New Zealand is his receiving country for the purpose of assessing his claims for protection.

    Third country protection

16. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

17. The Tribunal discussed his written claims with the applicant. He gave evidence that his father was in an extramarital relationship with his mother and he and his [sibling] were a result of that relationship. He stated that when his father’s wife found out about them he “lost” his wife and their children. He stated that his father blames his mother for this. He stated that his father beat his mother and wanted to get rid of them for losing his family. He stated that his father is a scary man and tried to drown him and his [sibling]. He stated that his mother was too scared to go to the Police as it would have made things worse. He stated that she “kept it under wraps” and tried to leave as soon as possible.

18. The applicant gave evidence that he came to Australia with his mother and [sibling] [in] October 1986 to escape from his father. He stated that he was under [a certain age] at that time. He stated that he has had no contact with his father since he left New Zealand in 1986. He stated that he returned to New Zealand with his mother in 1999 to attend his maternal grandmother’s funeral. He stated that he stayed in [Suburb] with members of his maternal family for a week. He stated that he had no contact with his father during that visit.

19. The applicant gave evidence that about 10 years ago his father contacted his mother’s cousin who lives in Australia. He stated that he did not know if his father was in Australia at the time or what he was trying to do. He stated that his father has not attempted to contact him and he is not aware of whether he has attempted to contact his [sibling]. He stated that he has no contact with members of his father’s family. He stated that he does not know how old his father is now or even whether he is still alive.

20. The Tribunal noted that the applicant is a grown man now and asked him why he now fears his father. He responded that his father is part of a gang called [Gang name] and it is not only his father that he fears. These are new claims that were not made in his visa application. When asked why he had not made these claims previously, he responded that he did not know. When asked what he thought would happen if he returned to New Zealand, he responded that he is guessing that if they see his name they will come after him. When asked how they would see his name, he responded that he did not know but there was a chance that they would. He stated that New Zealand is a small country and everyone knows everyone. He stated that it would be difficult for him to get on his feet as he does not know anyone there. He stated that sooner or later he would “bump into someone.”

21. The applicant gave evidence that he was in a de facto relationship with an Australian woman and has a [age] year old [child] from that relationship. He stated that his relationship has broken down and his [child] lives with his mother. He stated that there are Family Court orders giving his mother custody of his [child] and he and his former partner have access to their [child].  

22. The applicant gave evidence that he is [an Occupation]. He stated that he last worked about 4 years ago and prior to that worked on and off. He stated that he has been in custody since 2017 for breaching an Intensive Corrective Order in relation to [offences].

23. The Tribunal raised as an issue with the applicant his delay in applying for protection and its concerns in relation to the credibility of his claimed fears. The Tribunal noted that he has been in Australia since 1986 but no application for protection was made on his behalf whilst he was a minor. The Tribunal noted that he turned 18 years in [Year] but did not apply for protection on his own behalf once he became an adult. The Tribunal noted that if he genuinely feared harm from his father it would expect him to have done so at that time. He responded that he never thought he would need to return to New Zealand. He stated that all these things happened and it “hit him at once”.

24. The Tribunal raised as an issue with the applicant his failure to mention that his father was a member of a gang and that he feared harm from gang members in his visa application and its concerns in relation to the credibility of these claims. He responded that he thought he put it in. He stated that he was rushing and only had “two days to go”. The Tribunal does not accept this explanation. His evidence is that he prepared his visa application. Question 81 of the visa application states ‘do you think you will be harmed or mistreated if you return to that country/those countries?’ It provides an option to answer yes or no.

25. Question 81 of the visa application indicates that if the answer is ‘yes’, ‘give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)’. In his response to question 81, the applicant made no mention that his father was a member of a gang or that he feared harm from the members of that gang. The Tribunal would expect that he would have wanted to put his best case forward in his visa application and that he would have mentioned the gang even if he did not provide detailed information about these claims. His failure to do so raises doubts about the veracity of these claims.  

26. The Tribunal raised as an issue with the applicant its concerns in relation to his immigration history and his motivation for applying for a Protection visa. He has filed with the Tribunal a copy of the Department’s Decision Record dated 9 October 2019 which indicated that he has been living in Australia since 1986 and departed Australia for a week in 1999. His evidence is that he returned to New Zealand during that period. On 13 September 1986, he was issued with a Notice to Remove and he was scheduled to be removed from Australia on 19 September 2019. He then applied for a Protection visa on 17 September 2019. The Tribunal noted that it may find that he only applied for a Protection visa to extend his stay in Australia and not because he is in need of protection.

27. The applicant responded that he never thought he would need to return to New Zealand. He stated that he thought he is already here in Australia.

28. The Tribunal raised as an issue with the applicant its concerns as to whether he has a well-founded fear of persecution. The Tribunal noted that he has had no contact with his father since he was less than a year old. The Tribunal noted that he returned to New Zealand in 1999 and nothing happened to him then. The Tribunal noted that he is now an adult and his father is likely to be an old man. The Tribunal noted that he was not even aware of whether his father is still alive. The Tribunal noted that his father could have come to Australia in the last 30 years and harmed him if that was what he intended doing. The Tribunal noted that it may come to the conclusion that it is highly unlikely that his father would have any interest in him now.

29. The applicant declined to respond.

30. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard country information from DFAT and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

31. Having considered all the evidence, the Tribunal finds that the applicant has not been entirely truthful in his evidence to the Tribunal. The Tribunal is of the view that he fabricated some of his claims to enhance his prospects of obtaining a Protection visa.

32. The Tribunal accepts that the applicant was born in [Country] on [Date]. The Tribunal accepts that he has [a sibling]. The Tribunal accepts that his mother was subject to domestic violence at the hands of his father. The Tribunal accepts that his mother left his father and took him and his [sibling] with her. The Tribunal accepts that he, his mother and [sibling] came to Australia [in] October 1986 and that they have lived here since then. The Tribunal accepts that they returned to New Zealand in 1999 to attend his maternal grandmother’s funeral and stayed with family members in [Suburb] for a week before returning to Australia.  

33. The Tribunal accepts that the applicant has had no contact with his father since 1986. The Tribunal accepts that he is not in contact with his paternal family and is not aware of where his father lives or whether he is still alive. The Tribunal is not satisfied, on the evidence before it, that his father attempted to contact his mother about 10 years ago. The Tribunal is not satisfied, on the evidence before it, that his father has any interest in contacting him or harming him.

34. The Tribunal does not accept that the applicant’s father is a member of a gang called [Gang name] or any other gang. It follows that the Tribunal does not accept that he is at risk of harm from members of the [Gang name] or any other gang.

35. The Tribunal accepts that the applicant was in a de facto relationship with an Australian woman and has a [age] year old [child] from that relationship. The Tribunal accepts that that relationship has broken down and that his [child] lives with his mother pursuant to an order from the Family Court. The Tribunal accepts that he and his former partner are able to have contact with their [child].

36. The Tribunal accepts that the applicant does not wish to return to New Zealand. The Tribunal accepts that it will be difficult for him to establish himself if he returns to New Zealand now or in the reasonably foreseeable. The Tribunal accepts that he has maternal aunts, uncles and their families who live in New Zealand as well as half siblings and paternal relatives. The Tribunal notes that he has previously stayed with members of his maternal family in New Zealand. The Tribunal is of the view that his formal qualifications and work experience as [an Occupation] would stand him in good stead to obtain employment in New Zealand. He has family members in Australia who may be able to support him until he establishes himself. The Tribunal is not satisfied, on the evidence before it, that he will not be able to subsist if he returns to New Zealand. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

37. In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to New Zealand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Does Australia have protection obligations to the applicant under the complementary      protection criterion?

38. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

39. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to New Zealand now or in the reasonably foreseeable future.

40. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

41. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

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

    DECISION

43. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons

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.

…