2002022 (Refugee)

2002022 (Refugee) [2024] AATA 3813 (13 August 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

CASE NUMBER:

2002022

COUNTRY OF REFERENCE:

Austria

MEMBER:

Fraser Robertson

DATE:

13 August 2024

PLACE OF DECISION:

Perth

DECISION:

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

Statement made on 13 August 2024 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – Austria – religion – Muslim – race – man of African origin – xenophobia and racism – subject of attacks by right-wing and neo-Nazi groups – credibility concerns – strong, compassionate circumstances – relationship with an Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
GLD18 v Minister for Home Affairs [2020] FCFCA 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

The applicant is an Austrian national of African descent who arrived in Australia in April 2011 as the holder of a visitor visa. He made a valid application for a protection visa in July 2017, claiming that he would be imputed to be a refugee in Austria and faced a risk of attack from neo-Nazi groups in that country.
A delegate of the Minister for Home Affairs refused to grant the applicant a protection visa in February 2020. The delegate concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm. The delegate also concluded that there were effective protection measures available to the applicant in Austria and that, additionally, even if there were such a risk, the applicant could obtain protection from the Austrian authorities, so there would not be a real risk of significant harm.
The applicant seeks a review of that decision. He provided a copy of the delegate's decision to the Tribunal. He appeared before the Tribunal to give evidence and present arguments on 1 August 2024 and provided post-hearing submissions on 5 August 2024, all of which I have considered in making this decision.
I have determined that the applicant does not satisfy the criteria for granting a protection visa, and the decision under review should be affirmed. These are my reasons.
CLAIMS AND EVIDENCE
The applicant is a [age]-year-old man born in Dakar, Senegal, to parents who were both Senegalese citizens.[1] In November 1999, the applicant acquired Austrian citizenship. He can speak, read and write in English, French and German.[2] He can also speak Wolof and Toucouleur. The applicant denies holding Senegalese citizenship,[3] explaining that he had to renounce his Senegalese citizenship to obtain Austrian citizenship. That is consistent with country information about Austrian citizenship laws. I accept that he does not have Senegalese citizenship or nationality as claimed.
[1]        Protection visa application, p 18.
[2]        Protection visa application, p 20.
[3]        Protection visa application, p 18.
Before his travel to Australia, the applicant has lived in the United States of America, Germany, Norway and Austria.[4] He has also travelled to Gambia, Scotland, Italy, Spain, Norway, Germany, Dubai and Senegal.[5]
[4] Protection visa application, pp 30-31.
[5] Protection visa application, p 30.
The applicant travelled to Australia in May 2011,[6] on an Austrian passport issued to him in Germany, as the holder of a visitor visa.[7] At the hearing, his evidence initially stated that he came to Australia because he was in a relationship with an Australian. They married around August 2011, and the applicant applied for a partner visa that month.[8] The applicant's son was born in Australia on [date].
[6]        Delegate's decision, p 1.
[7]        Protection visa application, p 25.
[8]        Delegate's decision, p 1.
The applicant separated from his partner. He thought this occurred before the partner visa application was determined but was unsure. In any event, that application was refused in June 2012. On 31 July 2012, the applicant became an unlawful non-citizen.[9] In August 2012 he was granted two successive bridging visas on departure grounds.[10]
[9] Delegate's decision, p 1.
[10] Delegate's decision, p 1.
The applicant initially attempted to apply for a protection visa in August 2012, but that application was deemed invalid. The applicant could not say why it was deemed invalid. The applicant attempted to apply for a protection visa in 2014, but that application was also deemed invalid.
The applicant validly lodged a protection visa application on 7 July 2017.[11] At the hearing, when asked to explain what prompted the application in July 2017, the applicant claimed that he applied for this protection visa because he considered that if he had to return to Austria, he faced a "little bit of risk."
[11] Delegate's decision, p 1.
The applicant's protection visa application claimed that he was Christian and of Wolof ethnicity.[12] He claimed that "[he] left as a tourist but the situation has gotten worse in Austria since the refugee crisis".[13] He claimed that if he returns to Austria, he would be perceived as a newly arrived refugee because he is an African man and would be the subject of attacks by right-wing and neo-Nazi groups.[14] He claimed that the Austrian government had recently shown anti-refugee sentiment and could not protect him, the situation being the same in all other countries of the European Union.[15] He also claimed that he has an Australian son from whom he would be separated if he had to leave Australia.
[12]       Protection visa application, p 20.
[13]       Protection visa application, p 36.
[14]       Protection visa application, pp 36-38.
[15]       Protection visa application, pp 36-38.
Significantly, in response to the question in the protection visa application "did you experience harm in [Austria]?", the applicant responded "no".[16]
[16] Protection visa application, p 91.
In support of his protection visa application, the applicant also provided the following country information to the Department:
(a)one article was from the World Socialist website entitled 'Austrian Social Democrats open to coalition with right-wing extremist Freedom Party'. That article, dated June 2017, referred to the Freedom Party as being xenophobic and anti-Muslim. It quoted in-country sources as suggesting that the Freedom Party worked closely with right-wing extremists;
(b)the other was an article from the Evening Express entitled 'Austria ready to protect borders against migrants' which referred to comments by the then Austrian Foreign Minister that Austria was prepared to defend its border with Italy in the context of what were reported as growing concerns of an influx of migrants to Italy could spill over into Austria. The article reported Austria as being prepared to deploy armoured vehicles to border areas.
I have considered the country information relied on by the applicant in making this decision.
Hearing
At the hearing, the applicant claimed that he was Muslim, not Christian and that the reference to him being Christian in his protection visa application was a mistake adding that he was born a Muslim and prays five times a day, adding that he also goes to Church, lives side by side with Christians and "loves Jesus too". He could not otherwise explain how the mistake occurred.
At the hearing, the applicant raised a claim not included in his protection visa application. He claimed that when he lived in Austria, shortly before he left, white supremacist neo-Nazis attacked him and a group of his friends. He claims that his friend, who he described as a "Kenyan boy" named [Mr A] was killed. The applicant claimed that he was present whilst white supremacists were marching in Vienna and that he and some friends were laughing at them and were attacked in response. He also added that the attackers likely identified them as Muslims because they were near Muslim females who were identifiably Muslim because they were wearing a hijab. He claimed that he was involved in a fight with the group and was punched, kicked and hit with a baseball bat. Whilst this was a new claim in the context of his protection visa application, I do note that the claim was made in support of the applicant's subsequent application for a Bridging Visa E.[17]
[17] See undated BVE decision record.
The applicant claimed that he could not include this information in his protection visa application because he did not have evidence to prove that it happened. I do not accept that explanation. The application asked whether he had ever been harmed, not whether he had evidence that he had ever been harmed. The applicant did not tick yes and provide no further detail. He ticked no. Moreover, the applicant did not have any evidence to support other aspects of his claims but was able to make those claims.
Witness
[Ms B], the applicant's partner, gave evidence on behalf of the applicant. She said the applicant was a "good bloke" who had provided her with a lot of assistance in her life. She claimed that he would work hard if he got a job and that he had a son. She has never been to any EU country. [Ms B] agreed that she could not provide relevant evidence about the applicant's protection claims. While I have considered [Ms B]'s evidence, it is not directly relevant to the questions that I must determine.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (the 'Act') and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
Refugee criterion
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 decision‑maker 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.[18]
[18] Migration Act 1958 (Cth), s 5H(1)(a).
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.[19] Persecution must involve serious harm[20] and systematic and discriminatory conduct.[21]
[19]       Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[20]       Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[21]       Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[22] A "real chance" is a prospect that is not "remote" or "far‑fetched", but does not require a likelihood of persecution on the balance of probabilities.[23] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[22] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[23] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the ‘complementary protection criterion’ under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[24]
[24] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act.[25] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[25] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Qualifications
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country.[26] The circumstances in which effective protection measures are available to the person in a receiving country are set out in s 5LA of the Act.
[26] Migration Act 1958 (Cth), s 5J(2).
Credibility
In determining this application, it is necessary to make findings of fact. This will involve an assessment of an applicant’s credibility. I recognise that assessing credibility is an inherently difficult task,[27] which should be conducted carefully, fairly and reasonably.[28] Inconsistencies in an applicant’s account may or may not be significant.[29] I should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.[30]
[27]       See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[28]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ); see also, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[29]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[30]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
Mandatory considerations
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs.[31] There is no country information report prepared by the Department of Foreign Affairs and Trade in respect of Austria.
[31] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
The questions arising
In those circumstances, the resolution of this review application turns on:
(a)whether I am satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm if he is returned to Austria; and
(b)if I am so satisfied, whether s 36(3) of the Act applies to the applicant such that Australia is taken not to have protection obligations to the applicant.
DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?
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 is for the reason claimed.[32]
[32] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
The applicant claims to face a real chance of serious harm from right-wing white supremacist neo-Nazi groups in Austria. Among other things, the applicant relies on his claimed past experience in Austria, where he claims to have been attacked by such a group and a friend of his, [Mr A], was killed. Other than this attack, the applicant did not provide any evidence of any other instances of harm that would have, in isolation or on a cumulative consideration, risen to the level of serious harm.
Past events are not a certain guide to the future but may provide a reliable basis for determining the probability of their recurrence.[33] This requires me to consider whether the applicant's claims to have been attacked and the murder of [Mr A] are credible or not.
[33] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.
A combination of the delay in raising the claims about [Mr A] and the inconsistent information about the applicant having been harmed caused me to doubt the credibility of this claim. The applicant could have raised the claims about [Mr A] when applying for his protection visa. He did not, which creates significant doubt in my mind about whether the incident occurred. Additionally, the applicant claimed to have not experienced any harm in Austria, which was inconsistent with his claims at the hearing that he was attacked at the same time as [Mr A].
I do not accept that the applicant was unable to make his claims of having been attacked in Austria and [Mr A] having been killed because of a lack of evidence. In his visa application form the applicant claimed that if he were returned to Austria, he would be "the subject of attacks by right-wing and neo-Nazi groups". In the context of raising that claim, I do not consider it plausible that the applicant would have claimed to fear such an attack but not claimed to have direct experience of such attacks.
I do not accept that the applicant was attacked by right-wing, white supremacist or neo-Nazi groups in Austria. I do not accept that the applicant was with a person who was killed in such an attack, that a person called [Mr A] was killed or that the applicant knew him. I do not accept that the applicant's claims to have been attacked by a white supremacist group or that that group killed his friend [Mr A] during or following the attack are credible or that they occurred.
The discrepancy between his stated religion in the protection visa application and during the hearing undermine the reliability of his evidence. The applicant's religion was an aspect of his case for protection and the discrepancy is not insignificant for that reason. I doubt whether the applicant is a Muslim, as he claims. I also have difficulty accepting that a positive assertion of being Christian in his protection visa application occurred by mistake. However, notwithstanding my concerns about the applicant's credibility and reliability, I will proceed on the basis that the applicant is Muslim as he claims.
Country information
The applicant provided country information that, among other things, black people in Austria felt the most discriminated against when looking for work out of 13 countries.

In making their decision, the delegate observed:
According to country information there are reports of an initial rise in the number incidents involving attacks on refugees in Austria since 2015. Most incidents involved vandalism such as smashing windows and spraying Nazi graffiti such as swastikas and the phrase “Heil Hitler”. Other attacks involved fireworks, paintball guns, homemade Molotov cocktails, stones and other projectiles launched at windows.
In 2017 Austria’s Ministry of Interior published statistics indicating there had been a 19 percent decrease in neo-Nazi extremist, racist, Islamophobic or anti-Semitic incidents compared to the previous year – from 1,313 incidents reported in 2016 compared to 1,100 in 2017. Many of the incidents involved abusive messages posted online. According to an NGO operating a hotline for victims of racist incidents, of the approximately 1,200 complaints received in 2017, racist internet postings comprised 44 percent of cases.
Notwithstanding these incidents, in 2018 Austria ranked third overall in the Global Peace Index and, within Europe, was second only to Iceland. According to a 2019 report prepared by the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD, part of the Austrian Red Cross), although strong rhetoric has been directed against refugees and migrants in recent years ‘due process prevails in civil and criminal matters’ and ‘people in Austria are generally free from the illegitimate use of physical force.’ (citations omitted)
The delegate referred to country information which supported a conclusion that there had been reports of verbal and physical abuse directed towards migrants in Austria, but further observed that these incidents have declined in recent years.[34]
[34] Delegate's decision, p 3.
That said, in 2022, the US Department of State reported:[35]
Significant human rights issues included credible reports of crimes involving violence and threats of violence targeting Muslims and Africans; violence and threats of violence motivated by antisemitism; and crimes involving violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons.
[35] 'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
The US Department of State reported in 2022 that physical violence against individuals or vandalism of property based on religion continued to be rare.[36] The law in Austria prohibits incitement, insult, or contempt against a group because of its members’ race, nationality, religion, or ethnicity or if the statement violates human dignity. The law imposes criminal penalties for violations.[37] Steps were being taken to toughen laws against neo-Nazi activity.[38]
[36]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
[37]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
[38]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
The Austrian Interior Ministry documented 5,464 cases of hate crimes in its 2021 Hate Crimes Report.[39] The report divided hate crimes into nine categories: Ideology (2,052 cases), national/ethnic background (1,874), religion (750 – approximately 35 percent each were attributed to anti-Muslim and antisemitic hate crimes), complexion (408), sexual orientation (376), gender (354), social status (287), age (266), and disability (252).[40] There were 1,061 anti-Muslim incidents in 2021 compared with 1,402 in 2020, with a vast majority involving female victims, particularly visibly Muslim women.[41] Most of the 2021 anti-Muslim cases concerned hate speech (725), followed by incitement of violence (108), insults (97), discrimination (41), vandalism (25), physical assaults (16), acts of police violence (16), threats (7) and 21 “other” cases.[42]
[39]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
[40]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
[41]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
[42]       'Country Reports on Human Rights Practices for 2022 - Austria', US Department of State, 20 March 2023, 20230322105212.
It has been reported that racism towards people of African descent remains "relentless and pervasive", with 64% of those surveyed in Germany and Austria felt discriminated against in the past 12 months, increasing to 72% in Austria over the past five years.[43] In response to those results, the director of the European Union Agency for Fundamental Rights (FRA) is reported as having remarked that "[t]his is the reality for many people in the EU today... people of African descent are routinely met with unfair treatment and bias when seeking jobs or homes". The FRA also reported that: "most respondents of African descent are in paid work (71%). This is similar to the employment rate for the general population (73%)". Respondents who were citizens of the survey country were more often in paid work than those who are not.[44]
[43] ''Shameful' rise in racism against black people, says EU survey', 25 October 2023, BBC News, < 'Being Black in the EU, Experiences of People of African Descent, 2023, European Union Agency for Fundamental Rights,< ('FRA Report'), p 85.
Among other things, the FRA reports that people of African descent can experience different types of racist harassment.[45] FRA reported that:[46]
People of African descent can experience different types of racist harassment. Like the EU-MIDIS II findings, in-person incidents of racist harassment were the most common form mentioned in the 12 months before the 2022 survey (23 %). These included offensive gestures or inappropriate staring (19 %), offensive or threatening comments (15 %) and being threatened with violence (4 %). The respondents rarely say that they experienced online harassment (2 %), although the overwhelming majority had internet access and a smartphone (95 %).
Of those who experienced any racist harassment in the 12 months before the survey, the majority say that they experienced multiple incidents: 29 % say that they experienced a single incident, 46 % between two and five, and another 25 % six or more.
[45] FRA Report, p 59.
[46] FRA Report, p 59.
The FRA also reported that:
Although the overall prevalence of racist harassment for respondents who identify as Christian (25 %) is similar to those who identify as Muslim (23 %), the prevalence is slightly higher for men who self-identify as Christian (35 %) than for those men who self-identify as Muslim (22 %)
In terms of racist violence, the FRA reported that:
the findings of the 2022 survey show that on average 4 % of all respondents indicate that they experienced racist violence – that is, one or more physical attacks – in the 5 years before the survey. The results vary greatly across Member States, with the highest 5-year rate of racist physical violence recorded for respondents in Finland (11 %), Germany (9 %) and Denmark (8 %). The victimisation rates are lowest in Portugal and Italy.
…
2 % of all respondents indicate that they experienced racist violence in the 12 months preceding the survey, with the highest rate for respondents in Finland (6 %), followed by Germany and Austria (both 5 %).
I must consider whether, in all circumstances, I am satisfied that the applicant faces a real chance of serious harm. What amounts to serious harm is non-exhaustively defined in s 5J(5) of the Act. That is an evaluative decision that is forward-looking.
A finding that the applicant does not face a real chance of serious harm in Austria does not require me to find that the applicant will be 'safe' or that he will be free from racism or xenophobia. The protection regime provided for in the Act is not intended to address day-to-day racial inequality or xenophobia. It is designed to protect against situations where a person or group of people face a real chance of serious harm. The Act tolerates a risk that is properly described as 'remote'.
Whilst I have not accepted that the applicant was attacked as he has claimed, I do not doubt that racist and xenophobic violence exists and occurs. I do not doubt that Austria and the EU more broadly suffer from racial inequality. There is no doubt that racism and xenophobia cannot and should not be tolerated in modern society. I accept that as a Muslim and man of African origin, the applicant experienced xenophobia and racism on account of his faith and race. I have no doubt that people have insulted him or used racial slurs towards him. I accept that he would have experienced discrimination in day to day life, including in relation to employment. I am not satisfied, however, that the previously experienced things rose to such a level of severity or frequency as to involve serious harm as that phrase is used in the Act and having regard to the examples provided in s 5J(5) of the Act.
Racism and xenophobia are to be abhorred. However, I am not satisfied that the applicant's previously experienced serious harm whilst in Austria. Moreover, I do not accept that there is a real chance that the racism and xenophobia that the applicant will likely encounter on return to Austria involves him being exposed to a real chance of serious harm, whether by its repetition, frequency, severity or accumulation with other factors. The applicant was not previously unable to subsist, and I am not satisfied that the circumstances he will face on return will individually, or cumulatively, result in him being unable to subsist in any way. The delegate found, and I also find, that the applicant had resided in Austria (and Germany) for several years, speaks English, French and German. The delegate found, and I also find, that he has demonstrated his ability to integrate into the Austrian community.
I accept that as a person of African descent, the applicant may be imputed to be a refugee in Austria or someone newly arrived in Austria. I accept that he may be harassed or insulted as such. I do not consider that considering the applicant's claims in this way modifies the conclusions I have already reached. The imputation of the applicant as a refugee or person newly arrived in Austria is an aspect of harm feared because of the applicant’s race and ethnicity. It is that imputation or belief that would be or would be part of, the motivating factor for other people's behaviour towards him. This is part of my cumulative approach to considering the applicant's claims. I am not satisfied that the applicant faces a real chance of serious harm in Austria now or in the reasonably foreseeable future.
I have not overlooked the applicant's claims that he will be separated from his son and partner. However, neither of those matters leads me to conclude that the applicant faces a real chance of serious harm in Austria.
In my view, the chance of the applicant facing serious harm as a result of one or more of his race, religion, or ethnicity is remote in all circumstances. There is no real chance of the applicant experiencing serious harm.
In those circumstances, I am not satisfied that the applicant has a well-founded fear of persecution. As I am not satisfied that he has a well-founded fear of persecution, the applicant does not meet the definition of a refugee and does not satisfy the refugee criterion for protection.
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION FOR PROTECTION?
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Austria, there is a real risk that they will suffer significant harm.[47]
[47] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[48] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[49]
[48] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
[49] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
I have already found that the applicant does not face a real chance of serious harm. For the same reasons, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Austria, there is a real risk that he will suffer significant harm for any reason.
I have separately considered whether the separation of the applicant from his son and separation from his partner, either individually or in combination, results in a conclusion that the applicant faces a real risk of significant harm. I accept that such separation would be unfair and deeply upsetting for the applicant. However, neither of those matters can amount to significant harm or satisfy the complementary protection criteria.[50] The observations of Allsop CJ and Mortimer J (as her Honour then was) in GLD18 v Minister for Home Affairs warrant repeating:[51]
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.
[50] SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 (Mansfield J).
[51] [2020] FCFCA 2 at [50] (Allsop CJ and Mortimer J).
RESOLUTION OF THE REVIEW APPLICATION
I have found that:
(a)the applicant does not have a well-founded fear of persecution in respect of Austria; and
(b)there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will suffer significant harm.
I have considered the applicant's evidence, submissions, and country information regarding s 36(3) in the context of that provision and, more broadly, the claims made about racism and xenophobia in Austria and the European Union.
I am directed to only deal with the issues necessary to resolve the application for review.[52] In view of the conclusions that I have already reached, it is unnecessary to consider whether s 36(3) applies to the applicant.
[52] See Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
MINISTERIAL INTERVENTION
During the hearing, the applicant raised the prospect of Ministerial Intervention. The Minister has indicated that one of the unique circumstances that could be brought to the attention of the Minister is where there are strong, compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The applicant is in a relationship with an Australian citizen, [Ms B]. [Ms B] gave evidence at the hearing about the assistance the applicant provided her, but she could (understandably) not offer evidence relevant to the applicant's protection claims.
The applicant went to great lengths to present evidence of his qualifications, job prospects, and willingness to work and contribute productively to Australia and its economy before the Tribunal. That material does not affect the outcome of his protection claims. Nevertheless, I have no reason to doubt that the applicant would be a hard worker and genuinely wish for an opportunity to live in Australia.
The applicant also has a son who was born in Australia. His son was born in Western Australia in May 2013 and will now be 11 years old. His son is an Australian citizen.
I have considered whether to refer this application to the Minister to consider intervening under s 417 of the Act. There is a real possibility 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.
I do not have sufficiently clear evidence about the impact on [Ms B] or, significantly, the applicant's son if the applicant were to be removed from Australia. In those circumstances, I am not persuaded to refer the application to the Minister.
However, I wish to make clear that my refusal to do so does not prevent the applicant from personally seeking Ministerial intervention and, when doing so, putting before the evidence of the harm and continuing hardship his removal from Australia would cause to any Australian citizen, including [Ms B] and his son. The applicant is at liberty to make his request for the Minister to intervene. Whether the applicant does so and the evidence he provides in support of any such request is a matter for him.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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 criterion in s 36(2). In the circumstances, it is unnecessary for me to consider whether s 36(3) applies.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
I decline to refer the application to the Minister. The applicant is at liberty to make his own request for the Minister to intervene.
Fraser Robertson
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 3813

13 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

DIVISION:	Migration & Refugee Division
CASE NUMBER:	2002022
COUNTRY OF REFERENCE:	Austria
MEMBER:	Fraser Robertson
DATE:	13 August 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 August 2024 at 1:38pm CATCHWORDS REFUGEE – protection visa – Austria – religion – Muslim – race – man of African origin – xenophobia and racism – subject of attacks by right-wing and neo-Nazi groups – credibility concerns – strong, compassionate circumstances – relationship with an Australian citizen – decision under review affirmed LEGISLATION Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 417 Migration Regulations 1994 (Cth), Schedule 2 CASES GLD18 v Minister for Home Affairs [2020] FCFCA 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.