2007266 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, a British citizen who had resided in Australia since childhood, had his permanent visa cancelled due to a substantial criminal record and a custodial sentence. Following unsuccessful reviews of this cancellation, he applied for a protection visa, claiming complementary protection grounds rather than refugee status.

The central legal issue before the Tribunal was whether Australia owed protection obligations to the applicant, either under the refugee criterion or on complementary protection grounds. Specifically, the Tribunal had to determine if there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to the United Kingdom, the applicant faced a real risk of suffering significant harm, as defined by the Migration Act 1958. This involved assessing claims that the applicant's age, multiple health conditions, and the impact of the COVID-19 pandemic on healthcare services in the UK, coupled with his lack of social networks, would expose him to such harm.

The Tribunal reasoned that for harm to constitute "significant harm" under the complementary protection criterion, particularly in relation to degrading treatment or punishment, it must involve an intentional act or omission intended to cause extreme humiliation. Citing High Court authority, the Tribunal held that mere negligence or foresight of a result does not satisfy this intention requirement. While acknowledging the applicant's numerous health issues and his fear of social isolation and potential exacerbation of his conditions due to the pandemic, the Tribunal found that the UK's National Health Service (NHS) would provide him with access to adequate healthcare, including services for drug addiction and mental health. The Tribunal also noted that the strain on the NHS due to COVID-19 was a general issue affecting the UK population and that the UK government was taking steps to address these pressures. Furthermore, the Tribunal found no evidence of an actual, subjective intention by UK authorities to cause the applicant significant harm. The Tribunal concluded that the applicant did not meet the refugee criterion and that the risk of harm he claimed, including contracting COVID-19 or experiencing social isolation, was either faced by the general population or did not arise from an intentional act by the UK authorities.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that there were no substantial grounds to believe he would suffer significant harm as a necessary and foreseeable consequence of being removed to the United Kingdom.