2002224 (Refugee)

2002224 (Refugee) [2021] AATA 4303 (15 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002224
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Simone Burford
DATE:15 September 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 September 2021 at 1:46pm
CATCHWORDS
REFUGEE – protection visa – United Kingdom – race – Gujarati and Southern Indians – access to employment – marriage prospects – ‘taunted’ by friends, acquaintances or extended family – complementary protection – mental health issues – ongoing physical ailments – access to health care – ability to subsist and find employment and accommodation – self-harm – harm arising from mental illness – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD18 v Minister for Home Affairs [2020] FCAFC 2
SZTAL v MIBP (2017) 262 CLR 362
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
Background
The applicant is a [age]-year-old citizen of the United Kingdom (UK) who was born in [City 1], India.
He arrived in Australia [in] October 2016 as the holder of an e-Tourist visa (Subclass 651). He subsequently applied for and was granted a Student visa (Subclass 500) on 7 February 2017. The applicant applied for the protection visa on 15 April 2018.
For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be affirmed.
Protection claims
Protection visa application
The applicant detailed his claims for protection in his application form. In his application the applicant expressed his claims as follows:
Provide reasons why this applicant left that country or those countries
Cant face People who know me , In India and United Kingdom , Seen a good life dream , That broke up in 3 months in Jan 2011 As separation from Woman In England, Waited to solve till 2013 , Waited to Get British nationality and rejected marriage offers in UK , as none of female want to move away from Uk , Can not go back to India , Friends has 2 kids of more good Job, good Business , Its is shameful situation for me Australia in Growing and do not have Specific Skills that fit straight to [Company 1] / or any other outsourced assessment company in Australia , yes seen many people who came in boat and they have only Denting painting half way skill and they are running well and good business - why can not my live permanently in this country And use my knowledge skills gained from age 19 to [number] year age ?
Why I need MARA agent to prove it - If i have PR - I get job straight Into Construction, Mechanic, Call centers , Data Base Management Entry level - If i have PR i can start working in farm - I can do small Health care course and Work in health and social care , why my life in stuck and people from other countries there files get opened and they get conditional PR , because they Know What document to put while doing Assessment file does not matter they are real of fake?
Once they come hear in Australia from another country ,as soon they Apply for job they get into job because of most of Job says Permanent citizen only can apply - it does not say Conditional permanent resident can not apply ,they have personal and social connection , and people like me who is Extreme Honest – Keep waiting for a good and opportunity keep suffering and keep getting old , and Cant afford to get married ?
Did this applicant experience harm in that country or those countries?
Yes
Give details …..
I may need to Hang Myself One day - if I go back to India or England - because Immigration system it is Big Drama of People who have Money / Knowledge for get Verified Doggy document , Doggy reference letter , People who work in IT system they Leak information and Give all details what is acceptable to get the File through They are connected to MARA agents , they show the Bank balance - Show Business income - Show whatever they need because on 1 click - some one life and his family life will be on stake and on another hand - People Laugh - who has Skills but prove it on right time at right place .
I am Divoced and had bitter Memories of England and Bitter experiance of Immigration Family settlement - were some who shown business balalce there family moved from Indore india to England in 2007 and I applied for family settlement me and family appeal is not heard - why because - we did not had support to use techniques as most of lawyers do , That girl who was 24 got Indian passport and moved to England ,she has got kids and house everthing - because her uncle hired a best lawyer in Uk and Supported them to come to uk from Indore India , Does not matter now if they are claiming house benifits , the system is really fool . and can not compain there is always a loop whole ... I am simple human who want to live and work , grow a happy life want to earn - from business or job , but all that need PR , the life first step start after PR - i have still [number] year to work till age of 60 , i will be useful Economical and social need that beneficial for this growing country - from my learning i have gain till today .
Did this applicant seek help within the country or those countries after the harm?
Yes
Give details ….
I asked Help from Job centers in England , they keep showing me jobs , they made my cv also , but only 1 interview call in 4 months on Job seekar allowance ,
In australia if i have only full time work rights i can work straight on construction site , but in Uk

None of education worked , none of job center have putted me to relevant job or 9 - 5 job the way i used to do in [Employer 1], I have UK NARIC compare Qualification certificate that states my degree in equal to British Degree , but 50 pound i spend has no use , demand is very high and well paid Job are less .

I will shameful if i go back to UK , because i did not got married again in Uk because I did not wanted to Live In Uk . People will laugh on me .
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
Yes
Give details …
I moved away from Leicester to [Village 1] , People made my Joke , But still i spent time that let my PR of Uk come , I moved from [Village 1] , [Town 1] , Warwickshire , to City of London , People make my joke , as illegal Students , who do not have visa that kind of girl want to get marry to me in uk , Woman who is student dependent married also want to divorce to there husband and want to get married to me because i have Uk PR,
Woman is well settled and work well paid job in Uk , they wanted to me to have well paid job than they will think to get married to me , What do i do ? were do i go ? after this much hazels at what point i am wrong ?
Explain what the applicant thinks will happen to them if they return to that country or those countries:
i will Be too late to get a Job - In England -Plenty Of illegal Immigrants Coming in Uk and They Get Housing , Income and Government Support , But when i Goal to Job center i see lot of virus working in plenty working department ,
They work in Job center but when so good job came they put first there own community or Ethnic origin friend and Son of son and Nephew , and what so ever unwanted job , that no one want to do comes in my hand , that will be Physical demanding – standing on own , but all Office based jobs are been filled by nearest and internal connection, and why i go back to a small country were I opportunists are not even 10 % of Australia ,
Why an honest man can not apply on own - go through Lie detector test and talk to Home office or judge and get PR , in country were small Dog is been taken care if that is sick , it has Care taking hospital , I am [age] year Male , can speak , good English , has working body , that will work in this country - will pay 40 percent of earning as tax, will buy a shop or business hear - can employ some one next 15 year of time , why only PR can be Launched and skills are been taken outside Australia , why i my [number] different leaning can me
To create and Register my own company in Australia , why can not i create my own App , do marketing for it , that can compete with Uber Eats - Delivaroo - Yellow - Sherpa ? and many why can not a gain 9 - 5 job and spent my rest of time of Developing and Marketing door to door to Use my App after saving some money for Job in next 2 year ? why buddy why ? i can not live smiling and happy life In this growing Country ?
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes
Give details …
Social and personal people what so every will meet me or call me - my job ex job colleagues will laugh on me . and nor i can get back to that level back in Uk , the more i can reach in Australia .
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
Yes
Give details ….
England will Protect me - But will not be able to Support me to get 60 K job , they will put me back to job center - and job center will keep making me fool , to come and sign again and again , or they might do time pass , as 70 percent of people work there they work for the benefits of own ethnically origin people and my Gujarati ethnic origin people who is British born Indian , they will take away any entry level job , that i might be chasing in case i go back and keep searching whole London for Job . this whole system has loop wholes does not matter its India , England , or Australia . virus is with in the system not outside – so people like me has to ask directly - am i useful to live hear or not - else i go back were i came from . Jobs are Less and demand in high in Uk , its is similar in Australia , but if i put efforts hear , i will be batter of than India or England
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No
Give details ….
At any place i will go India - My age and young working ability will not come back - time is money - and i have spent in on the path of Honesty , but Brown color honesty does not work – Only Expensive Immigration Agent - or Influential immigration agents sitting in all over world works , Only money speaks .
(from original)
In summary, the applicant’s claims in his application express a general anxiety about returning to the UK and his prospects on return. The applicant claims that he will be unable to find employment in the UK at the level and remuneration he feels he is capable of being employed due to the bias of job centre employees who do not assist him for various reasons relating to his lack of connections and ethnicity. He believes the authorities will not assist him in obtaining a well-paying job. He claims that the immigration system in Britain favours those with money and connections. He fears he will be taunted by acquaintances and former colleagues if he returns to England as he will not be able to re-establish himself to his previous lifestyle and because he is not married.
Submissions to the Department
The applicant was not interviewed by the Department in relation to his application. In support of his application, the applicant submitted the following documents to the Department:
·Documents relating to his education, qualification and employment history;
·Identity documents including his United Kingdom passport issued [in] 2016 and documents relating to the surrender of his Indian passport [in] 2014 in London;
·Email correspondence with the Department in relation to the processing of his application, these included a request for an appointment to meet the Department or obtain an update on his application (dated 26 June 2019, 27 June 2019, 16 July 2019, 17 July 2019, 18 July 2019).
The delegate’s decision
On 5 February 2020, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal.
The delegate accepted the applicant was a citizen of the United Kingdom. However, the delegate noted that the United Kingdom is considered stable and democratic and that the applicant would be able to obtain protection from the state authorities. The delegate considered that country information indicated that protection would be durable and consist of appropriate criminal laws, a reasonably functional police force and an independent judiciary.
Based on these findings, the delegate was not satisfied the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to the United Kingdom. Accordingly the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
Review application
On 5 February 2020, the applicant applied to the Tribunal for a review of the delegate’s decision.
Submissions to the Tribunal
Prior to the hearing the applicant submitted numerous emails to the Tribunal concerning:
·his work history in Australia and the United Kingdom;
·his personal circumstances and immigration history;
·previous United Kingdom family court proceedings;
·his views on who can successfully obtain visas to the United Kingdom and Australia; and
·a copy of his resume.
The Tribunal reviewed these communications and, where relevant, discussed them with the applicant at the hearing.
The hearing
The applicant attended a hearing before the Tribunal on 27 May 2021 to give evidence and make submissions in support of the review application.
The Tribunal organised an interpreter to be present by telephone for the commencement of the hearing. The Tribunal discussed with the applicant whether he wanted the assistance of the interpreter. He indicated he was happy to proceed without the interpreter but would maybe ‘bring her back on the line’ if he felt he didn’t understand something. After discussing this with the applicant, the Tribunal kept the interpreter on the line for the introductory part of the hearing but excused her at the applicant’s request before he commenced giving evidence. Although the Tribunal had concerns about some of the applicant’s evidence, detailed further below, the Tribunal considered that the applicant had a good command of English and the Tribunal did not have any difficulty understanding him. The Tribunal was satisfied the applicant understood the Tribunal’s questions and the nature of the proceedings and was able to fully participate in the hearing in English.
At the hearing the Tribunal discussed with the applicant whether there were any changes to his claims as expressed in his application. The Tribunal explained that it had before it the Department’s file and the Tribunal’s file which included the delegate’s decision. The Tribunal also explained that to the extent there was material on the file that was not submitted by the applicant which would be adverse to the applicant’s case, that is which would be the reason or part of the reason for affirming the decision under review, the Tribunal would put that information to the applicant during the hearing to give him an opportunity to comment or respond to the information.
The Tribunal observed that the applicant was concerned that the Tribunal may have information before it which the applicant did not have access to, including records from UK authorities regarding his family court proceedings. The Tribunal confirmed it did not have any such information before it.
The Tribunal notes the Department file contained an assessment of the applicant’s citizenship claims which confirmed he was a UK citizen and not a dual national. This was consistent with the applicant’s evidence to the Tribunal and not adverse to his application for review.
The Tribunal took evidence regarding the applicant’s background and whether there were any changes to his personal circumstances since the application was filed. The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearing. This information and the applicant’s oral evidence to the Tribunal at the hearing are discussed further below.
Claims and evidence
The applicant moved to England from India on a partner visa in 2010. He married in India after answering an advertisement to enter into an arranged marriage with a UK citizen in September 2009. His former wife had travelled to India with her family to arrange a marriage and she returned to the UK shortly after they met and wed. He followed once his visa was approved. He said he had no choice but to get married as a prior application for a family resettlement visa to the UK had been refused in 2006.
The applicant told the Tribunal that he was not a citizen of India. However, he said he understood that he had been told he would be able to obtain an Overseas Citizen of Indian (OCI) Card. He said as part of that process he surrendered his Indian passport which was cancelled. He said he understood the OCI card would enable him to enter and live in India for certain periods but not to vote or own property. He said he received his British passport in 2016 and applied for the OCI in 2016. He said that after he got his passport he started the process immediately because he wanted to get out of England. He did not provide any evidence of holding an OCI, however the Tribunal accepts he may hold or be eligible to hold an OCI card. Based on the Tribunal’s findings below, the Tribunal did not consider that it needed to make findings with respect to the applicant’s OCI status.
The applicant told the Tribunal he has one sibling and both parents are living. He said his family in Australia are living in Melbourne. His sister, niece and nephews and his parents who are visiting and caring for the children, are living in Melbourne but he said he has ‘no connection’ with them. He said he got kicked out of the house after a family dispute.
His sister travelled to Australia while he was in England following an arranged marriage to an Indian Australian. He said there were issues with her case which developed because he was trying to protect his sister following his own experience. He said he hated ‘this this social group’. When asked what social group this was he said ‘Gujaratis, Sri Lankans, South Indians, Punjabis’ especially those working in [certain] companies. It was not clear how this related to his sister.
His parents had been in Australia for about 2 or 3 months. He said his mother has UK citizenship as she was born in [another country] (British citizen by birth). His mother was born in [another country] but was brought up in India to live with others as her mother had died. He said he went to the UK in 2002–2004 and learnt about the option of a family settlement visa. He said that the social group of Gujaratis in India didn’t give the information to his family about the option of a family settlement visa so they could take those visas for themselves.

He travelled to Australia by himself. He said he gets taunted that he doesn’t do anything here to support his sister and brother-in-law but he came on his own and has supported himself. Again, the applicant made refence to a concern there may be information from third parties on the computer file for his application. The Tribunal assured him that was not the case.
The applicant gave evidence about his circumstances in the UK. He said that he has extended family living in shared homes there. He arrived initially in 2002 and then later when he came on a spouse visa. He was together with his ex-wife for about 3 months. He said she wanted to have children but he didn’t want to. Initially he worked for a labour hire company. He was working as a packer/picker in a [business].
He said that was when the quarrel happened and the police had to get involved. He said he was tortured with the family drama as they were trying to hide his ex-wife’s backgound. He said the evidence was presented in the family court for his divorce proceedings and he has asked the Department to get access to that CD from the UK family court. He said he repeatedly requested the Judge to play the CD but the Judge did not play it. The Tribunal queried if he meant the evidence was not admitted in the proceedings there and he said that he believes that in every country ‘corruption has so much increased’, he said he believed the CD showed criminal activity and that is why they didn’t play it. The Tribunal indicated it would not be able to access court records of that type from a foreign court and this information was not on the Tribunal’s file.
The Tribunal queried who called the police and he said she did as she was trying to use ‘the woman power’. He said nothing happened, he just talked to the police. The Tribunal asked if charges were laid and he said he didn’t know. The Tribunal understood he was not aware of any charges having been laid before he left in 2016. He thought he had obtained a police clearance in 2013 to get a healthcare job and again in 2014 to get his citizenship. There is no evidence before the Tribunal indicating that there are any pending or outstanding charges against the applicant in the UK in relation to this or any other matter.
The Tribunal asked why the applicant came to Australia and he said to it was to obtain work as [an occupation] which was something he started in the UK. He then obtained a student visa when he arrived because he obtained more information about his options here. He said before he came the ‘social group’ wasn’t giving him the correct information about what his options were.
He studied [a course] for a few months and then started looking for a job. He applied for the protection visa while his student visa was still in place. He started working [but] he had back pains and shoulder pains. He said youngsters working next to him with poor English were in good jobs as managers and he did research and realised that in Australia bribes and connections can get you the job. He said there was significant evidence of immigration fraud happening in this country. He said that was why his earlier visa was rejected. He said he paid the full amount, had [a qualification] and worked for a [business] which is 90% the truth, not 100% the truth, but he was rejected. He said the skilled assessments in this country are done by a [foreign] company. He said it was bribes or connections working.
He told the Tribunal he did a Master [degree] at Indore in India. He also completed a Bachelor [degree]. He has also done a qualification in [subject matter]. He did a course in [that line of] work in the UK but he didn’t get the qualification because he didn’t work with the company for a year which was required. He said he was terminated from the job because he wasn’t logging in and out at the right times on his job appointments.
At the time of the hearing he was not working. He had just finished working at farms several weeks prior. He bought a van and drove to Perth and was sleeping in the van. He said prior to that he was living in Melbourne and sleeping in his car. He said he needed to get employment sufficient to provide for himself and his parents.
The applicant told the Tribunal he applied for the protection visa because he had no other choice. He said that all other visas including skilled and student visas were corrupted and biased. He said the other visas were based on money and skilled assessments. He said he had applied for a skilled visa from India but he was refused. He did not appeal that decision.
The Tribunal asked what he feared may happen to him and he said, ‘social group’ and ‘race and religion’. He said that if he goes back to the UK all the people who told him he needs to go back to England will ‘piss him off’. The Tribunal asked who these people were and he said they were all the people he knew on Facebook and the people he will share accommodation with because there is no house for him and he would have to start his life from zero. He described the Swaminarayan group which he said was a social group or ‘chanting’ group which he had attended meetings of in the UK. The Tribunal asked if it was a religious group and he said it was. He said he was attending meetings regularly in the UK. The Tribunal asked if he was practising or attending meetings of this group in India and he said that in India he was doing meditation. He said his mother believed in meditation. He said his parents were Brahma Kumaris. The Tribunal asked what his involvement with that group was and he said [volunteering]. In Australia he connected with Jehovah’s Witnesses. He said he was curious and exploring different religions. He described himself as a ‘neutral’ person.
The Tribunal asked what it was the applicant thought these people would do to him and he said they would ‘just taunt’ him saying ‘oh now you are back, you need a job, come to us’. He said over 500 women had rejected him and he was single and trying to reach out on Facebook and other websites. He said he was posting online to find a partner but he is getting rejected because of his ‘unsettlement situation’ and because women think he entered a contract marriage.
The Tribunal asked what the problem would be with people offering him a job and he said that he didn’t trust this employment situation in England or Australia. He said he didn’t trust technology or technology companies.
The Tribunal asked whether there was anything else he feared. He said his ex-wife has remarried and all the people who get ‘smart entry’ through the migration system will taunt him within India, the UK or Australia. They would say ‘we told you to get married’, ‘we told you the protection visa would not work’. He said that this would harm him because he would end up in a mental hospital because of the pressure. The Tribunal asked why he was on Facebook if he felt he was taunted on it and that it was bad for his mental health. He said at the end of the day if he is not social he can’t find a partner. The Tribunal asked how staying in Australia would help him with this problem and he said if he has permanent residency here he can get a 20-year-old female who is trying to come to Australia and can produce a child. He said he needs at least 2 children or 3 children. He said he needs to show the social group who is laughing at him, the women who had rejected him and the social groups, that he can produce a child.
The Tribunal asked when he last had contact with his ex-wife and he said he hadn’t had contact but he had seen on Facebook that she had a boy who is [age] or [age] years. He said he burned all the information including the CD because it was a painful fight between him and the family. The Tribunal asked if there was any reason his wife would be interested in his return to the UK and he said, ‘woman ego’. The Tribunal pointed out that significant time had passed since he was divorced,
He said that a [age]-year-old with his capabilities in England would be well settled. He said he would have to seek assistance if he went back and the groups he was previously involved with and the people he knows would taunt him. The Tribunal asked if he could seek accommodation outside the social group. He said one million asylum seekers are on benefits and he wouldn’t get assistance because he is single.
The Tribunal asked what he experienced in the UK to make the applicant fear returning to where he lived before coming to Australia and he said ‘all his immigration experiences’. He said that all the immigration system is controlled by money. The Tribunal asked what he thought would happen to him and he said he would get ‘taunted’. He said that he could have had a child. He said he is an unsuccessful guy without permanent residency. He said he didn’t want to stay in the UK. He waited to get his naturalisation certificate so he could leave.
The Tribunal noted he had worked in the past and asked if he would be able to get work on that basis and he said that would be labour work which he is not able to do based on his neck and shoulder pain. He said that he had seen a doctor in NSW and they could identify some wear to his spine but not a noise coming from his jaw which he said was arthritis. He said he also had noise in both of his knees and he had asked for an MRI in Canberra but they said he needed to pay for it because of health care arrangements with the UK. They said he needed to go to physical therapy. He said this means he can’t do labour work. He said he was doing labour work here but ‘smart entry people’ get the jobs as a manager but he couldn’t get those jobs. No medical evidence was provided to the Tribunal in support of these claims.
He said he needed the CD. The Tribunal asked what the CD would tell the Tribunal about what would happen to him if he went back to the UK. He said he wasn’t going back to the UK. The Tribunal asked what he thought would happen if he went back to the UK and he said he would go to another country. He said that the amount of lies in the UK would have a mental impact on him and there was no point going back because they won’t pay an acceptable salary to an English speaking person. He said the CD would tell the amount of torture people will do to get immigration and that there was no point going back to a country that doesn’t pay £60K salary to an educated English speaking person.
The Tribunal’s noted the applicant’s claims his mental health would suffer on return to the UK and asked if the applicant had been treated for mental health problems in Australia. He said his mental torture was why other visa entrants could earn significant salaries working on the mines straight away. He said he needed a roof first and nutrition for his body before he will see a doctor. He confirmed he had not been treated for mental health issues in Australia. The applicant said he needs to compare his situation to a man who can get a $110k job in this country and get a visa or permanent residency and then he will treat his mental health. He said he needs to get an MRI on his back but he won’t use his savings for that. The applicant confirmed he had access to a doctor through Medicare but he said he needed to fix his back and his knees first. He said he was in temporary accommodation with extended family on his mother’s side until his application was decided.
The Tribunal asked about threats of self-harm included in material the applicant had submitted previously. He indicated that he wasn’t going back to the UK. He said he can’t get permanent residency based on honesty. He said if he didn’t get a visa he just needed an entry card of the US. The Tribunal explained it was not able to give the applicant entry documents for another country or advice about his visa options if he was not successful in his visa application.
He said he won’t get a visa to the US because he has applied for asylum here. He said if he were to get a protection visa, he would try and seek a contract here which would give him ‘easy money’. He said this a drama and he was telling the Tribunal that things don’t work in this technological system.
The Tribunal noted that the applicant arrived in 2016 but did not apply for a protection visa until 2018 and asked the applicant about why he delayed seeking protection. He said that everything was based on information he could locate about the process on the internet. He said that he sought the visa based on the economic benefits, his pain and his situation. He said the circumstances don’t allow him to go back to the UK. He said he needs time to sell his van or obtain another visa but he would probably go to the US. He said he needed a peaceful life. He said in any circumstances he won’t travel back to the UK. He asked if the Tribunal could transfer his case to the US and the Tribunal explained he was unable to do that.
Following the hearing the applicant emailed the Tribunal on 28 August 2022. The email included an x-ray scan which the email indicated was an x-ray of his spine. The email noted ‘I have been found slow in bending - repetitive work …... My lumper spine x ray - its self give answer’. No medical report of the diagnosis was provided.
The email indicated the applicant had been rejected for jobs in Australia and did not have access to Job Seeker Allowance. The email noted the applicant was suffering from arthritis in his knees and had been referred to an orthopaedic surgeon for a check up or MRI but ‘in whole Perth none of Orthopaedic surgeon want to see me because I have reciprocal Medicare card - no private insurance.’ The email went on to state:
What course I do to get. 60. - 70 - 80 k job . - I can do that can lead to Permanent residency ?
When do I get house /. Own land for me ?
When do I can impress a female for my second marriage ? Its been. 11. Years without any female in my life ?
Will I be able to produce. Minimum 2 children ? [Age] year age started ?
If the first is. daughter - than I have to try for second one for Boy. - in my family and culture. I am eldest. I need give a son to getting old parents ?
Will my spare. Part or sperm count work ?
Will my child. Get British passport in this country because I have it ?
What do I do ?
I have applied for Citizenship on immi account - they rejected it as it is an invalid application ?
The email indicated the applicant was living in his car.
ISSUES
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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.
The issue in the review is whether the applicant has a well-founded fear of persecution in the United Kingdom for any of the reasons claimed by the applicant or arising on his circumstances for any other reason, or whether complementary protection provisions otherwise apply.
DECISION MAKING FRAMEWORK
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1]
[1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3]
[2] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[6] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[7]
[6] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[7] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[8]
[8] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that the Department of Foreign Affairs and Trade (DFAT) has not issued a country information report with respect to the United Kingdom.
CONSIDERATION
Analysis, reasons and findings
The applicant travelled to Australia on a United Kingdom passport and claims to be a United Kingdom citizen. The delegate accepted his claimed nationality and the Tribunal accepts the applicant is a United Kingdom citizen and has assessed his protection claims accordingly.
The Tribunal finds that the applicant is a citizen of the United Kingdom, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Relevant country information
As noted above, DFAT does not produce a report with respect to the UK prepared for the expressly for protection status determination purposes. The delegate’s decision contained a summary of country information including from the US State Department. The Tribunal has had regard to the information contained in the delegate’s decision and more recent information from similar sources.[9]
[9] US Department of State, Country Reports on Human Rights for 2020, United Kingdom 2020 Human Rights Report; Freedom of the World, United Kingdom 2020 Report, Freedom House.
The Tribunal put to the applicant the country information in the delegate’s decision which the Tribunal noted was consistent with current information before the Tribunal including the US State Department Human Rights Report in relation to the UK and general information available regarding circumstances in the UK.
Credible country information suggests that human rights are generally respected in the UK. There are no reports of arbitrary or unlawful killings, politically motivated disappearances, political prisoners or detainees. Torture and other cruel, inhuman, or degrading treatment or punishment is prohibited by law and government officials do not employ such practices. Freedom of religion is protected by law and respected in practice.[10] Discrimination based on age, disability, gender reassignment, marriage or civil partnership, race, religion or belief, sex, sexual orientation, disability, language, sexual orientation, or social status is legally prohibited and the government enforces the law effectively.[11]
[10] Freedom of the World, United Kingdom 2020 Report, Freedom House.
[11] US Department of State, Country Reports on Human Rights for 2020, United Kingdom 2020 Human Rights Report.
The UK has an independent police force and judiciary and respects the rule of law. The government investigates, prosecutes, and punishes allegations of official abuse, including by police, with no reported cases of impunity. Civilian authorities throughout the UK maintain effective control over the security forces. Arbitrary arrest and detention are prohibited and the government observes these prohibitions. The right to a fair trial is protected by law, and an independent judiciary generally enforces this right.[12]
[12] US Department of State, Country Reports on Human Rights for 2020, United Kingdom 2020 Human Rights Report, pages 6–8.
There was no country information before the Tribunal suggesting that someone in the applicant’s circumstances would be discriminated against or persecuted by employment assistance agencies, social support service providers or any other government agency on the basis of his ethnicity, religion, marital status or health.
In light of the applicant’s claims regarding medical complaints or conditions the Tribunal has had regard to country information regarding to the health care that would be available to the applicant in the UK. As discussed with the applicant at the hearing, the UK has a comprehensive and high quality health, education and social security network. The Tribunal notes that the NHS is the publicly funded healthcare system in England, and one of the 4 national health systems (NHS) systems in the UK. Hospital treatment provided by the NHS in England is free to people classed as ordinarily resident in the UK.[13] It is reported that ‘ordinarily resident’ in the UK includes people who are living and working in the UK who are British citizens, naturalised within the UK or settled within the UK.[14]
[13] assessing ordinary residence (publishing.service.gov.uk)
The Tribunal finds the applicant will be able to register and access the NHS if he returns to the UK. The Tribunal has had regard to the UK NHS website which provides information and advice about COVID-19 and specifically recognises people at higher risk from coronavirus.
Social security entitlements include provisions for medical assistance, old-age pension and related services, parental, unemployment and disability benefits.[15]
[15] Benefits - GOV.UK (>
With respect to employment the US State Department notes that:[16]
The law prohibits discrimination in employment or occupation regarding race, color, sex, religion or belief, political opinion, national origin or citizenship, social origin, disability, sexual orientation, gender identity or reassignment, marriage and civil partnership, being pregnant or on maternity leave, age, language, or HIV or other communicable disease status. The government effectively enforced these laws and regulations.
…
The minimum wage for workers age 25 or older, known as the National Living Wage, is above the poverty level..
[16] US Department of State, Country Reports on Human Rights for 2020, United Kingdom 2020 Human Rights Report, pages 31–32.
There was no country information before the Tribunal suggesting that the applicant would be persecuted or discriminated against on the basis of his physical or mental health needs.
As discussed with the applicant, country information suggests the UK provides the sort of systems which would, absent particular circumstances, protect its citizens or residents from the sort of harm addressed by the protection visa criteria. The Tribunal noted that in the information it suggested that in the normal course the UK system might be regarded as providing the sorts of protections which the relevant conventions including the Refugee’s Convention and those addressed through the Complementary Protection provisions, were designed to address or provide.
He said that he has worked 20–25 jobs and he has been unable to secure a ‘$55k job’. If he had secured that in the UK it would show in his background. The UK has agents providing ‘dodgy CVs’. He said his CV was not good except for honest or straight forward jobs. He said he couldn’t risk going back to a land which had given him divorce and pain for 15 years. He said the system was managed by outsourcing software companies.
The Tribunal asked if there was any basis on which he would be denied services available to a UK citizen and he said that if you are not a ‘habitual resident’ you don’t get access to the service. He said that it would take 3 or 4 years to be a ‘habitual resident’ and he said that he wouldn’t get services because already people who are settled there would not get it. As noted above, country information suggests that services are available upon arrival for those residing in the UK.
There was no country information before the Tribunal to suggest the applicant would face social or official stigma or persecution on the basis of having sought a protection visa in Australia or due to the fact he is unmarried and without children.
Findings
The Tribunal has carefully considered the claims made by the applicant.
As noted above, the applicant expresses a general anxiety about returning to the UK. He has declared his intention not to return to the UK due to what he considers are poorer prospects for finding employment with suitable remuneration and a partner with whom he could have a family. The applicant claims that he will be unable to find employment in the UK at the level and remuneration he feels he is capable of being employed at or would be able to achieve in Australia due to the bias of job centre employees who do not assist him for various reasons relating to his lack of connections and ethnicity and because of what he views as corruption in the employment and migration system of the UK. The Tribunal notes he expresses similar concerns regarding systems in Australia. He believes the authorities in the UK will not assist him in obtaining a well-paying job. He claims he will only be able to obtain labouring work and he cannot do such work due to physical injuries he has suffered including lower back pain, jaw pain, arthritis and knee pain. He claims that the immigration system in the UK favours those with money and connections and links this to certain ‘social groups’ within the UK and India including Gujarati and Southern Indians. He fears he will be ‘taunted’ by acquaintances, former colleagues, and on Facebook and other social media if he returns to the UK because he was not successful in gaining permanent residency in Australia and because he is not married. He claims his marriage prospects will be negatively impacted if he returns to the UK.
The applicant also claims he will suffer mental harm if he returns to the UK. In some material before the Tribunal he threatened self-harm if returned to the UK. Before the Tribunal he did not express any such intention but said he would not return to the UK and would instead try to travel to another country, preferably the United States. Although the applicant did not specifically articulate a claim to fear harm due to a lack of access to mental health or other medical services on return to the UK or to be at particular risk due to mental health issues on return to the UK the Tribunal has also considered whether any claim for protection on this basis arises on the material before the Tribunal. The Tribunal notes in this regard that the applicant offered no medical evidence to support his claims with respect to the impact of returning to the UK on his mental health or medical evidence of the physical ailments he claimed may prevent him working in similar jobs to those he held in the UK and Australia previously, in particular labouring jobs. However, having observed the applicant at the hearing and examined his correspondence with Tribunal and the Department, the Tribunal is prepared to accept he may face mental health issues on return to the UK or may be perceived as having mental health issue on return there. The Tribunal is also prepared to accept that he may have some physical injuries or minor impairments related to his age and history of labour work. However, the applicant did not suggest, and the Tribunal does not accept that the applicant is incapacitated or unable to work due to such injuries or ailments. Based on the evidence before it, including the applicant’s evidence of having worked throughout his time in Australia, the Tribunal finds the applicant is able to work and is not prevented from doing so by physical impairment or mental health issues. The Tribunal also finds that the applicant would have access to medical and other support services to meet his mental and physical health needs. The Tribunal finds there is no evidence that the applicant would be persecuted or stigmatised due to actual or imputed mental or physical health issues in such a way as would amount to a real chance of serious harm.
The Tribunal notes it spent significant time exploring the applicant’s circumstances and claims through his evidence. The Tribunal went to significant lengths to explain the limitations of the criteria for a protection visa and to understand any basis on which he feared or may face a real chance or real risk of harm on return to the UK. It is evident that the applicant feels he has the skills, capacity and personal qualities to be successful in Australia. He is frustrated by what he sees as unjust outcomes for others who he regards as less qualified or deserving than himself. He regards that this is due to corruption or manipulation within the immigration system. He feels he is qualified and entitled to be a permanent resident of Australia and wishes to build a successful life outside of the UK.
However, having considered all the applicant’s claims and evidence the Tribunal finds that the applicant has failed to demonstrate that he would suffer any real chance of serious harm on return to the UK or that he faces a real risk of significant harm as a necessary and foreseeable consequence of his return to the UK.
The Tribunal accepts that the applicant may be embarrassed by the circumstances of his return to the UK and that his may cause him anxiety and stress. The Tribunal also accepts that the applicant may be subjected to comments from others which he regards as ‘taunting’ and that he may find those circumstances stressful. The Tribunal accepts that returning to the UK in such circumstances may cause the applicant’s mental health to deteriorate. However, the applicant did not suggest he had been, or would be, physically or otherwise seriously harmed by any person in the UK for any reason. Nor did he claim he would be denied services or supports ordinarily available to a UK citizen for any reason associated with his race, religion, nationality, membership of a particular social group or political opinion.
With respect to his claims, the applicant claimed he may be taunted by people from particular ‘social groups’ including particular ethnic or cultural groups from India, members of religious groups he had previously been affiliated or involved with, his social media connections or his ex-wife and her family. However, he did not claim that they would taunt him for any reason other than his perceived failure to achieve his desired personal or employment goals.
The Tribunal finds on the evidence that the applicant has worked in the UK and Australia in a range of occupations. He has undertaken tertiary study and has good English language skills. He indicated he had people in the UK including extended family whom he could reach out to for accommodation and other assistance, albeit that he feared they would ‘taunt’ him for his perceived failures if he did so. The Tribunal also finds based on country information and the applicant’s evidence that he would have a range of social and economic support services available to him in the United Kingdom which would assist with his resettlement and other needs should he choose to access those services. The Tribunal finds that the applicant would not face a real risk of serious or significant harm due to financial hardship or lack of access to essential services on his return to the UK.
The Tribunal finds the claimed harm of being ‘taunted’ by friends, acquaintances or extended family does not rise to the level of serious harm. In any event, the Tribunal has considered the applicant’s claims and finds the applicant does not fear persecution in the UK because of his race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a) of the Act. Further, the Tribunal finds that the applicant does not fear persecution that involves systematic and discriminatory conduct under s 5J(4)(c).
The Tribunal finds that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused by being taunted if he was returned to the UK, or on any other basis for the purposes of s 36(2)(a) of the Act.
Complementary protection
The Tribunal notes that, if a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of a protection visa if there is a real risk that they will suffer significant harm: s 36(2)(aa) of the Act (‘the complementary protection criterion’). As discussed above in the assessment of the evidence, the Tribunal has found that there is no real chance the applicant will be seriously harmed on return to the UK for any of the reasons claimed, now or in the reasonably foreseeable future.
The Tribunal notes that the threshold for the real risk element in the complementary protection criterion at s 36(2)(aa) is the same as that for the real chance test in the refugee criterion at s 36(2)(a) of the Act.[17] That is, the Courts have held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.[18]
[17]MIAC V SZQRB (2013) 210 FCR 505.
[18]SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [71]–[73] and [84].
The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm discussed above with respect to his claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa).

The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The definitions of ‘cruel or inhuman treatment or punishment’ require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. It is not suggested that the applicant will be arbitrarily deprived of his life or the death penalty will be carried out or he will be subjected to torture as a necessary and foreseeable consequence of the applicant being removed from Australia to the UK.
In the context of s 5(1), intent requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[19] In SZTAL v MIBP, a majority of the High Court rejected the contention that knowledge or foresight of a result establishes the necessary intention element of the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.[20] Mere negligence, without more, will also not establish the necessary intention element of any of the relevant definitions in s 5 of the Act.[21]
[19] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
[20] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362.
[21] See SZSPE v MIBP [2013] FCCA 1989 at [68] and [72] (upheld on appeal SZSPE v MIBP [2014] FCA 267) and SZTUL v MIBP [2014] FCCA 1985 at [31]–[32] (leave to appeal this judgment was dismissed: SZTUL v MIBP [2014] FCA 1427).
The Tribunal has considered the applicant’s evidence and accepts that he may require mental health support in the UK and access to medical care for ongoing physical ailments. The Tribunal accepts that returning to the UK may exacerbate his mental and physical health issues. The Tribunal accepts the applicant has limited immediate relatives or established social networks in the UK and that he fears being socially isolated in the UK because of the embarrassment of the circumstances of his return to the UK. The Tribunal has considered all these factors cumulatively in assessing whether there is a real risk that the applicant would suffer significant harm if he was to return to the UK.
In light of the applicant’s medical issues the Tribunal considered the health care that would be available to the applicant in the UK. Based on country information detailed above, the Tribunal finds the applicant will be able to register and access the NHS if he returns to the UK. The Tribunal notes that mental health services are free under the NHS, however in some cases patients may require a GP referral. This includes NHS psychological therapies services.[22] The Tribunal finds that the applicant would have access to adequate health care in the UK should he choose to access it.
[22] In assessing the applicant’s ability to subsist and find employment and accommodation in the UK the Tribunal has considered the applicant’s personal circumstances, including those detailed above. The Tribunal has also noted that the COVID-19 pandemic is affecting the employment levels and economies of all countries, including high income countries such as the UK.[23] The Tribunal notes however that the UK has announced a number of policy initiatives and has put in place a number of support schemes to help the country recover from the economic fallout caused by COVID-19.[24] The UK also has a welfare system in place and has increased spending in some areas to support the most vulnerable in society, although critics claim that successive cuts to the welfare system over the past decade have left it insufficient to help all those in need.[25]
[23] ‘Global economy will take $12tn hit from coronavirus, says IMF’, The Guardian, 24 June 2020, 20200724111331; ‘Hard Times: UK Economic Outlook’, KPMG, June 2020, 20200724112112.
[24] ‘Hard Times: UK Economic Outlook’, KPMG, June 2020, 20200724112112; ‘Economic update: Unprecedented fall in GDP marks low point of recession’, House of Commons Library, 2 July 2020, 20200724111625.
[25] ‘Coronavirus: Increases to benefits payments’, House of Commons Library, 27 May 2020, 20200724135926; ‘UK: Children in England Going Hungry with Schools Shut’, Human Rights Watch (HRW), 27 May 2020, 20200724140139. See also: ‘Record numbers of people in Britain can’t afford food – lifting lockdown won’t change that’, New Statesman, 3 July 2020, 20200724084624.
101. Country information confirms that the UK has safety nets in place to take care of vulnerable members of society when they are in need. Information on available benefits can be found on the UK Government website.[26] These include: Universal Credit (which replaced a number of other benefits); tax credits; Jobseeker’s Allowance and low income benefits; carers and disability benefits; Child Benefit; benefits for families; heating and housing benefits.[27]
[26] Benefits - GOV.UK ( See: ‘Benefits’, UK Government website, undated.
102. The Tribunal accepts the applicant may initially struggle to find suitable employment and accommodation during the economic downturn caused by the pandemic. The Tribunal finds the applicant has past work experience in Australia and the UK and qualifications obtained in India which would place him in a position to obtain employment in the UK. The Tribunal also finds that the applicant is eligible to access government welfare services while he looks for suitable employment and accommodation.
103. As detailed above, the Tribunal accepts that the act of being removed from Australia may exacerbate his mental health. In GLD v Minister for Home Affairs,[28] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness where such harm arises by reason of the applicants removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[29]
[28] At [88]–[89].
[29] See also FMN17 v MICMSMA [2020] FCA 326.
104. As noted by the Full Court in GLD v Minister for Home Affairs:[30]
[30] [202] FCFCA 2 at [50] per Allsop CJ and Mortimer J.
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.
105. The Federal Court noted that s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’.[31] As detailed above, s 5(1) requires an actual, subjective, intention on the part of a person (in this case the UK authorities) to bring about the suffering by their conduct.[32] The Tribunal finds that the applicant’s mental health is not of itself grounds for granting complementary protection. Further, the Tribunal does not accept that there would be any intention on the part of another person or the UK authorities to cause him significant harm because of any underlying mental health issues.
[31] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[32] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
106. For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to return to the UK and would suffer emotionally as a result of his return, it does not accept that he is owed complementary protection on this basis.
107. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to UK, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
108. 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 criteria in s 36(2).
Conclusion
109. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
110. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
111. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
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.
…

[2021] AATA 4303

15 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Remedies

Statutory Construction