2007085 (Refugee)
[2024] AATA 4206
•4 September 2024
2007085 (Refugee) [2024] AATA 4206 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Danijela Stojanovic (MARN: 0958278)
CASE NUMBER: 2007085
COUNTRY OF REFERENCE: Bosnia and Herzegovina
MEMBER:Denis Dragovic
DATE:4 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 September 2024 at 12:02pm
CATCHWORDS
REFUGEE – Protection Visa – Bosnia and Herzegovina – fears harm from father and stepmother – the chance the father will try to kill his son is remote – mental health – applicant would not be denied care – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 56, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Bosnia and Herzegovina. He applied for the visa on 29 June 2015.
The applicant appeared before the Tribunal on 9 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [a] friend of the applicant, and [the] applicant’s psychologist. The Tribunal hearing was conducted with the assistance of an interpreter in the Bosnia and Herzegovina and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 Migration Regulations 1994 (Cth) (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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has mental health challenges, identified as PTSD and Major Depressive Disorder, and as a result he was treated as a vulnerable applicant in accordance with the Tribunal’s Vulnerability Guidelines. In addition, during the psychologist’s giving of evidence we discussed the most suitable approach for the hearing which aligned with those of the Guidelines.
It was agreed with the representative that noting the evidence of past trauma the safest course of action was not to go into the details of what harm befell him at the hands of his parents, but, if necessary, it would be flagged in advance with the representative and appropriate plans made.
The applicant is on anti-depressants. When this was discussed, he did not claim that it affected his ability to participate in the hearing nor did it become apparent that his ability to present evidence or make arguments was diminished.
The applicant is a [age]-year-old male from Bosnia and Herzegovina (BiH). He claims to have left BiH because his stepmother and father were abusing him. He left BiH when he was [age] years old arriving to Australia in 2015.
The applicant is currently employed. He has full time work in his own [business] and in the past was working in [specified] sectors.
The applicant grew up in [Town 1], a town near the regional capital of Bihac. While living in [Town 1] he also had employment in Bihac and in the surrounds of [Town 1] between 2012 and 2015. His employment was as a [Occupation 1]. He claimed that he would have to return any income earned to his father. When he worked in Bihac, which was said to be [number]km away he said that he would mostly travel home after work but sometimes he would stay there if there was a place for him.
The applicant feared not returning home while working in Bihac because when he didn’t his father would call asking for the money. If he didn’t come home, they would expect double payment from a double shift.
He said that he didn’t socialise much, but when he did it was in [Town 1] with friends from school, though he isn’t ‘much’ in touch with them now. He said that he was able to travel to Australia by borrowing money from his school friends but under the condition that he had to repay them.
The applicant said that he can’t remember what role his father had during the wars of the Former Yugoslavia as he was a child then. He believes that his father ceased his deployment as a soldier when the war stopped which would have been 1995. Since then, his father worked [in] [Town 1] and beyond including [Country 1]. The applicant said that his situation at home wouldn’t change for him when his father was away.
The applicant believes that his father and stepmother are well connected with the authorities. He wrote that his stepmother knew the head of police.[1] He recalled that he once ran away from home when he was [age] years-old but a policeman brought him back. I noted that he would have been a minor at that age and that it is not necessarily nefarious that he was brought back. He said that he didn’t know, all he knows is that he was returned.
[1] June 2015 statutory declaration at [34]
The applicant claims that he was abused when he was young by his mother and aunt and later as he moved in to live with his father and stepmother by those two. The nature of the abuse through the years was claimed to be physical, verbal, psychological, financial, emotional, and possibly sexual.
I noted that his father is [age] years old, he is [age]. The applicant provided a [social media] post that he claims he received from a neighbour on 27 May 2024 in which it states his father being in hospital every second night because he is sick:
Hello. I am sick. I am in the hospital every other night. I have a son but it’s like I don't have one. He hasn't contacted me for years. He gets cars and cows for others, but he won't send me even for medicine. I'm in dire straits.
I asked whether this post indicates that his father is frail and due to his age and relative to his own, how could his father be a threat to him. The applicant said that he wasn’t sure if his father was as sick as the [social media] post suggested and that his father has weapons.
The applicant believes his stepmother to be [age] years of age. I asked what he feared from her noting her age and gender and his age and gender. He said that she is capable of doing anything.
The applicant provided another of his father’s [social media] posts which states:
I swear on my life that I will do this to my son [the applicant]. I will break all his bones and no doctor will put him back together
The applicant wrote in his August 2024 statutory declaration that he received this message through a friend on 21 June 2024.
He wrote in his August 2024 statutory declaration that ‘some time ago’ his father had called him and ‘swore about the place that I would die and hole that I would be buried in’. He wrote that his friend, the witness, was present when this call occurred. He claimed that he received a call a few days later from his father who explained that the applicant has an obligation to look after him. The applicant claims that despite him blocking the father’s phone number he received those calls as private numbers.
The witness said that the call was in May 2024 and that she overheard parts of it including the applicant’s father cursing (wishing death upon the applicant in a highly virulent manner). She said that she hadn’t overheard such a conversation before, though, he had told her that he had similar conversations before.
I noted that he claimed his father continues to make threats against him to others. He said that he has been receiving threats from them since coming to Australia. He said that he doesn’t know who the caller is and then his father starts swearing with insults and threatening him. I asked why his father would do that if he is claiming that his father doesn’t care about him. He said that his father just wants to provoke him and that he doesn’t know why.
I noted to the applicant that on the one hand he claims that his father wants to kill him but on the other hand that he wants to leave the assets to him (according to his written statement dated 27 June 2015 at [3]). The applicant said that his father always said that the assets won’t go to him.
I noted that he said that his stepmother doesn’t want the assets to go to him hence she wanted to harm him. I asked that if the father has said that the assets aren’t going to him as he is claiming, then why would she want to harm him. He said that she hates him.
I asked if he is not living with them why would they care about him. He said that since he was born, he is unlucky, and that they both hate him.
I asked the applicant what he thought would happen if he lived alone in [Town 1], were to receive threats from his father and that he then was to go to the police. He said that he believes that his father would take his weapons and kill him.
Regarding the police, I noted that the applicant had claimed that he had received a message from a police officer in Bihac trying to convince him to return.[2] He said that he couldn’t remember noting that it was a long time ago.
[2] Statutory declaration June 2015
The applicant submitted a letter from the police. He explained that this was prompted by his father making threats over [social media], specifically the posts reproduced above and received by the applicant in May and June 2024. He claimed that he had called the federal police, canton police and the local police and no one could help him.
The translation of a portion of the letter states:
[The applicant] was informed that he should submit the status of the messages to the MUP USK the e-mail address or to the [Town 1] fax number, so that the measures and actions provided for by the law could be taken, although after the interview with the complainant, the mentioned messages do not reveal any elements of violation of public order and peace, he also added that he and his father do not have good family relations, which were damaged through phone conversations, and they have not seen each other for years.
After the report was received, the police officer acted on it and interviewed the applicant, [name], who stated that he had not been on good terms with his son [the applicant] for many years, that he had not seen him for more than ten years, because he lives and resides in Australia. that he posts a status on [social media] social network that is true, that he is not in a good mental state, and that he does not see the reason for the application submitted by his son, because they do not have any contact, and the statuses that he posted are no longer on his phone, nor does he remember the content.
After the interview with the applicant and the repoed by the police officers, it was determined that the aforementioned report does not reveal elements of public order and peace violation, but that it is a matter of disturbed family relations.
The applicant described the response of the police as not wanting to get involved because it is a family dispute.
The applicant’s representative argued in a post-hearing submission that the ‘Police in attendance only demonstrated procedural diligence and only gave the impression they were supposedly doing their job then letting the father off the hook and protecting him by stating it was a minor family dispute.’ But there is no evidence of the law in BiH requiring any further action to be taken. In the same submission the representative notes that ‘In Bosnia, verbal, emotional and financial abuse is not considered abuse but rather a normal component of family issues.’
I noted at the hearing that the police report seems professional and independent. The applicant did not provide a response. When asked about the professionalism of the police the applicant said that he has been away from Bosnia for many years and doesn’t know the current situation.
I put under s424AA to the applicant that of the two [social media] pages he had provided and translated only one is available online. It is dated 21 June 2024. The other one recorded in the police report, dated 28 June, is not on his father’s [social media] page. There are no other threats on his father’s [social media] page back through to when he set up the account. I explained the relevance of this adverse information as being that it leads me to question the timing of the threats considering that the hearing invitation was made on the 15 June and a week later a threat appears on his [social media] page without any evidence of prior threats. The applicant took an adjournment. When he returned, he said that he doesn’t know, and that it could be a coincidence. He said that he hasn’t been in contact with his father for many years.
The applicant travelled to [Country 1] and separately to [Country 2] when he was [age] or [age] years of age before coming to Australia. At the hearing he claimed that he was forced back to BiH by the police after a few days. He believes that his father was behind this. He said that once he entered those countries, he stayed a few days but then the police would tell him that he had to leave. He said that they just told him that he had to leave the country. I asked if he entered legally. He said that he didn’t need a visa. He said that he believes that the police are connected and that they contact each other, and he was forced to return. He said that he was bashed by his stepmother upon return.
Later in the hearing when this was discussed again. I noted that in the Delegate’s decision the applicant’s evidence is recorded as being that ‘he travelled to [Country 2] in 2013 and [Country 1] in 2014. He travelled alone, visiting his friends. He funded the trip from the money he had borrowed from his friend. He also worked illegally in both countries doing various [jobs].’ That he remained longer than a few days is supported by his response in his protection visa application to question 81, which records that he stayed in [Country 2] for two months. I noted to the applicant that this doesn’t align with the evidence that he provided at the hearing namely that he had to return after a few days. The applicant said that his head is splitting. We adjourned the hearing.
Later, when asked the same question he said that he didn’t know that he was being asked for a period. I noted that I hadn’t asked but he had stated it was only a few days that he remained in the countries. I put to him again that he had earlier explicitly said that it was after a few days that the police would approach him. He confirmed that this was correct.
The applicant argued in his statement of 2 August 2024 that his father is ‘obsessed with me’. He believes that his father enjoys seeing someone in pain and being hurt.
The applicant wrote in his August 2024 statement that shortly after his interview with the Department while in Australia he had someone drive close to him and as the applicant sped up the other car also sped up and when he slowed down the other car slowed down. The applicant worried that this person had been sent by his father. At the hearing he said that he is fearful of the man.
The applicant said that despite only his friend, the witness, and him knowing of his visa refusal his father found out. He believes that this reinforces his view that his father has ways of finding information.
A comment on his father’s [social media] post was discussed at the hearing as it was a matter raised by the Delegate in their decision. The applicant’s father had posted a picture of himself in hospital. The applicant wrote wishing him good health. In a statutory declaration dated February 2020 he notes, ‘I wrote that firstly out of sarcasm because I know he won’t get it and also trying to get him off my back.’ At the hearing he said that when someone instils fear into your bones you still fear him.
The applicant said that he didn’t relocate to Sarajevo, the capital of BiH, out of fear of his father’s connections with the police.
The witnesses
The friend who hosted the applicant in Australia and appeared as a witness is from [Town 1]. The applicant got to know her through an online radio chat forum. She subsequently offered to host the applicant while in Australia. The witness stated that the applicant has gone through hell. She noted that she has a lot of friends in [Town 1]. She feels like she saved the applicant by helping him to stay in Australia. When asked if the applicant had to return to BiH whether she could introduce him to other people in [Town 1], she said that maybe that would be possible, but that such people may think differently of the applicant’s father inferring that they may not take the applicant’s side and be supportive.
The applicant’s psychologist gave evidence. As the psychologist made numerous observations about the situation in BiH in his written submissions I asked him to detail his knowledge or expertise on the situation in BiH. He explained that it arose from being his country of birth, from ongoing professional engagement with communities throughout the Balkans and professional engagement with colleagues that work throughout the region. He acknowledged that such knowledge would not lead him to be considered an expert on the situation in BiH.
I asked if the applicant would be denied health resources in BiH. He said that he would not be precluded from accessing treatment. He said that the applicant would get a referral to see a psychiatrist or a psychologist. He commented that the level of trust may not be there or the level of expertise of the psychologists.
I noted to the psychologist that the applicant is able bodied although affected by mental health issues, and that many others would have mental health issues arising from similar circumstances or the war. I asked how his situation would be distinguished such that he would be treated differently and would he be able to establish himself in that community. He said that everyone in BiH directly or indirectly has been affected by PTSD. He said some have been affected more than others and so there is a pecking order and those affected by the war get priority. He gave the example that if there is a group session, the applicant would be the odd one out. In addition, the people leading the session would be trained in the context of war PTSD.
I suggested that because so many people have mental health issues that society would be geared for people with mental health issues to function including to get jobs, housing, socialise and engage. He responded that people who grew through the experiences would do better than those who didn’t. He said that due to the applicant’s absence from BiH for ten years he hasn’t had the same healing process as others. This would then make it harder for him to then get to the jobs, functionality, and socialisation. He said that the applicant hasn’t had the benefits of pushing through for ten years.
The Tribunal sent a s424A letter following the hearing with material arising from the evidence provided by the psychologist at the hearing. The letter noted, ‘Your psychologist indicated based on his knowledge that you would not be denied health resources in Bosnia and specifically that you would not be precluded from accessing treatment and could get a referral to see a psychiatrist or a psychologist in Bosnia and Herzegovina.’ The letter explained that this information was relevant to the review because ‘it indicates that you would not face discriminatory treatment from the authorities in accessing health support.’
In a post-hearing response the representative provided comments that there is no male shelter for the applicant and as such he couldn’t seek assistance from the health care system. She noted that there is no Medicare system and the time taken for the applicant to get an appointment and the costs involved along with ‘potential lack of ethics’ are all live issues.
In considering the applicant’s claims I accept that he faced abuse as a child. I accept that he had a traumatic youth. I accept that the applicant’s father ended his association with the military when the war in BiH ended nearly thirty years ago. As far as the applicant’s claims of his father and stepmother being connected with the authorities, I accept his claims that in BiH having connections matters. But I do not accept that the father or stepmother’s connections are as extensive as claimed. I do not accept that they influenced the police forces of [Country 1] and [Country 2] to organise to send the applicant home. I find that they do not have connections into the Department of Immigration in Australia. Instead, I find that their connections are local, arising from friendships and relationships that would have grown through the years having fought alongside each other during the war, grown up together or being related.
Following from this finding, I also find that the applicant remained in [Country 1] and [Country 2] for months as the evidence from his written application and Departmental decision record of interview support rather than a few days. In turn having stayed longer than a few days, I find that he worked in those countries as recorded in the Departmental decision as evidence given at the interview.
The issue of the father’s phone calls and online threats to the applicant while in Australia is vexing. The father’s [social media] page does not have any threats against the applicant other than the one from 21 June 2024. It is a strange coincidence that through the father’s [social media] history there are no threats to his son until one week after the hearing invitation is sent out. On the other hand, there is no doubt based on the psychologist’s report and the presentation of the applicant at the hearing along with the witness’ account of overhearing the threats, that the applicant’s father has conveyed some threats. I find that there may have been some trigger for the father’s post, or the timing may have been coincidence, either way I find that the post was made without the applicant’s involvement.
The police report mentions two threats on [social media] as being the basis of the applicant’s complaints. Whereas only one remains online. Accepting that there were two, I find that the father deleted one following the call from the police who investigated the complaint lodged by the applicant.
With regards to the applicant’s post on his father’s [social media] page wishing him good health, I find that it was done neither with sarcasm nor genuine and deeply felt endearment for his father. For the purposes of this decision, it is not relevant to delve deeper other than to accept that it does not contribute to questioning his credibility but nor does it indicate that the applicant has actively rebuked his father.
Considerations
The applicant has lived a traumatic life. But it is not for this Tribunal to right the wrongs of the past. Instead, in considering this matter I must turn my mind to consider whether the applicant faces a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Upon return to [Town 1], I find that the applicant would not be welcomed into his father’s house. Instead, he would receive the support of his friends to find appropriate accommodation. These friends include those who helped finance his travels and those that sent him the [social media] posts as recently as May and June of this year albeit noting that he is less frequently in touch with some, as well as people the witness introduces him to.
The representative rebutted this in post-hearing submissions suggesting that in the Muslim culture you can’t leave a woman with a stranger in the house and that the applicant would be unwilling. But as noted above, my finding is that the applicant would receive support to find appropriate accommodation and not necessarily move into the house of a married Muslim.
At some point he will find work, as he had before in BiH, [Country 1], [Country 2], and Australia. While this will be challenging, the challenges he faces will not be beyond him to overcome nor will they arise for discriminatory reasons. They will be challenges faced and overcome by other young men.
The applicant has some mental health challenges. But this has not impeded his ability to find work in four countries in a range of [professions]. This shows the level of functionality of the applicant and noting that he worked as a [Occupation 1] for three years also how society in BiH does not preclude those with the applicant’s characteristics.
The central claim the applicant is making is that his father will then harm him. He said that his father has a weapon and as such the applicant’s relative health and fitness over his father’s frailty and age would not be relevant. As such the critical question becomes whether the applicant’s father will one day into the reasonably foreseeable future pick up a gun, find his son, and murder him.
The basis for the applicant fearing this series of events is the past treatment as detailed at [22] he received as a child and teenager and more recently verbal abuse and threats.
There is no evidence before this Tribunal that the father had previously murdered others.
It is not a small step for someone to take, to rise from family violence as the head of the household and conveying verbal/online threats to murder someone and in particular their child. It may be made easier were there no consequences, for example, if the father was so well connected that he could murder with impunity. But there is no evidence to suggest this to be the case. I found the father to have some local connections but none that would suggest an ability to circumvent the law such that he would be able to avoid prosecution for murder with any level of confidence. I find that the father knows this and that it would inhibit his actions.
I have also considered whether the situation could escalate into the reasonably foreseeable future. His anger and threats appear to be based on his son not having provided him any financial support despite living in Australia. He has in the past taken income from his son and appears to believe it is a filial responsibility. In that case, there is no rational benefit to harming his son were he to return. But an action that may seem irrational to the Western eye, such as revenge or maintaining honour, may be rational in another cultural context. Even when acknowledging Western prejudices, taking into account patriarchal values that may imbue a sense of right to abuse his son, and the potential influence of the more pragmatic motivation of the stepmother, I find that the chance the father will try to kill his son is remote.
I find that the applicant’s father and stepmother will verbally abuse and may try to physically confront the applicant, but I find that any such physical or verbal harm does not amount to serious or significant harm.
I find that neither the father nor stepmother would seek others to harm the applicant.
With regards to the applicant’s mental health, I note that the psychologist has provided evidence that the applicant would not be denied care. The claim made by the psychologist was that the quality of the care would be inferior for a variety of reasons such that it would lead to further harm to the applicant. I accept this. The applicant’s ability to manage and recover from his PTSD and Major Depressive Disorder would be impeded. In post-hearing submissions the representative provided references to reports that discuss a stigma surrounding male victims of family violence, limited specialised services, a lack of awareness of the needs of male victims and scarcity of resources. In considering this claim it is relevant to revisit the meaning of serious and significant harm.
Section 5J(5) provides that the following are instances of serious harm: (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.
‘Significant harm’ is exhaustively defined in s 36(2A): A person will suffer significant harm if he or she will be arbitrarily deprived of their 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
It is important to note that the protection regime is not one that provides a pathway for people who fear a lack of adequate medical support for non-discriminatory reasons. Specifically, for example, with regards to arbitrary deprivation of life, the courts have considered whether an inability to access the necessary medical support which in turn would lead to the loss of life constitutes arbitrary deprivation of life. In MZAAJ v MIBP [2015] in obiter dicta comments at [42] Judge Riley notes that the arbitrary deprivation of life ‘does not concern the consequences of scarce medical resources in developing countries.’
I also note that psychosomatic harm or suicide do not have another person as a persecutor and as such are not a basis of triggering Australia’s protection obligations (see for example: EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464 and upheld on appeal: EZC18 v MHA [2019] FCA 2143, and CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089).
As such when considering the applicant’s mental health and how it impacts him in the context of s36 of the Migration Act I note that it would arise from circumstances in which his mental state would be the cause of harm such as employers not hiring him and as a result, he would be unable to subsist or alternatively society isolating him. But noting the applicant’s prior ability to function in four countries and find work across various sectors including for three years working in BiH and that in BiH society everyone, according to the psychologist, has some form of mental health ailment albeit arising from different sources, I find that the deterioration in his mental health and the stigma present in the community will not lead him to face serious harm or significant harm.
When considering the situation cumulatively, namely how the presence and future actions of the applicant’s father and stepmother interact with the applicant’s mental health, I find that their presence will add psychological pressure onto him. But I note that during the worst periods when the applicant was young, living under the roof of his father where the abuse was ongoing, he managed to work, engage with school friends and arrange to travel abroad repeatedly. Now, the applicant has had the benefit of years of psychological support, he will have the support of the witness in finding friends, he has the benefit of additional years of maturity and independence gained from living in Australia. When considered as a whole I find that the additional psychological pressure that the presence of his father and stepmother will place on him by living in their general proximity will not be such that on top of all of the other factors described above would lead to the applicant facing serious or significant harm.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy PresidentATTACHMENT - 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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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