2002022 (Refugee)

Case [2024] AATA 3813

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

  1. 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.

  2. 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.

  3. 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.

  4. 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

  5. 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,…

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2002022 (Refugee) [2024] AATA 3813
Case
[2024] AATA 3813
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a protection visa. The applicant, described as a man of African origin, claimed to be subject to attacks by right-wing and neo-Nazi groups in Austria due to his religion and race, citing xenophobia and racism. The court was required to assess the applicant's credibility and determine whether he faced a real chance of serious harm or a real risk of significant harm if returned to Austria, and if so, whether section 36(3) of the Migration Act 1958 (Cth) applied to preclude Australia from having protection obligations.

The court's reasoning focused on the assessment of the applicant's credibility, acknowledging the inherent difficulty in such a task and the need for careful, fair, and reasonable conduct. It noted that inconsistencies in an applicant's account may or may not be significant, and that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims. The court considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs. Ultimately, the court found that the applicant did not satisfy the criterion in section 36(2) of the Act, and therefore it was unnecessary to consider section 36(3).

The Tribunal affirmed the decision not to grant the applicant a protection visa and declined to refer the application to the Minister. The applicant was advised that he was at liberty to make his own request for the Minister to intervene.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 RobertsonMemberATTACHMENT – EXTRACT FROM MIGRATION ACT 19585 (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 familyFor 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 familyFor 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

Ratio Decidendi

Legal Principle Established

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).