2007574 (Refugee)

[2020] AATA 5739

2007574 (Refugee) [2020] AATA 5739 (4 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007574

COUNTRY OF REFERENCE:                   Portugal

MEMBER:Jason Pennell

DATE:4 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 4 December 2020 at 11.03am

CATCHWORDS
REFUGEE – protection visa – Portugal – particular social group – people with mental health conditions and former drug addiction – multiple neurological disorders, brain injuries and mental health conditions – claim that health system in home country unable to provide care – impact of coronavirus – arrived in Australia as young child – visa and criminal history, mandatory cancellation of transitional permanent visa on character grounds and migration detention – capacity to subsist – country information about mental health and social security services – coronavirus not systematic or discriminatory – right to reside in other EU countries – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 5L, 36(2), (2A), (3), 65, 189(1), 501(3A)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chan Yee Kin v MIEA (1989) 169 CLR 379

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

SZTAL v MIBP (2016) 243 FCR 556

SZTGM v MIBP [2017] HCA 34

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of Portugal, applied for the visa on 6 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations.

3.The applicant appeared before the Tribunal on 24 July 2020 to give evidence and present arguments. The hearing was held by via video conferencing facilities from [an] Immigration Detention Centre.

4.The applicant was represented in relation to the review by his registered migration agent, [Mr A].

5.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. 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). 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

Applicants Migration/Criminal history.

1. The applicants evidence was that he was born on [Date 1] and that he arrived in Australia in 1973.[1] However, the delegates decision notes that a check of the various departmental systems revealed that the applicant arrived in Australia [in] December 1974 when he was [age] years old. The applicant entered Australia on his mother’s passport on a permanent resident visa. [2] The applicant has not departed Australia since his arrival. The Department records indicate that on 1 September 1994 the applicant’s entry permit was deemed to be a transitional (Permanent) (Class BF) visa.[3]

   [1]    Applicants Protection Visa application dated 7 April 2020 @ [44]

   [2]    Department file [File number], Dept Ref ID: [Ref Number 1], Doc ID: [Doc number 1]

   [3]    Delegates decision dated 21 April 2020, Dept File: [File number] Dept Ref: [Ref number 2] Doc ID: [Doc number 2].

2. The delegates decision notes that the applicant has an extensive criminal history which commenced when he was 16 years of age in [year].[4] The applicant has accumulated 150 convictions which include than 50 diving offences, 70 dishonesty charges and drug and violence offences.[5]

   [4]    ibid

   [5]    ibid

3. On 2 May 2007 the department issued the applicant a Notice of Intention to Cancel his visa. On 22 June 2007, the decision was made not to cancel the applicants visa and the applicant was issued a formal warming by the Department concerning his criminal conduct.[6]   

   [6]    ibid

4. On 4 March 2008 the department issued the applicant with another formal warning in relation to his reoffending.[7]

   [7]    ibid

5. On 12 August 2011 the department issued another Notice of Intention to Consider Cancellation of the applicant’s visa. The department again made the decision not to cancel the applicant’s visa and he was issued with another warning on 13 October 2011.[8]

   [8]    ibid

6. On 9 October 2012 the department issued a Notice of Intention to Consider Cancellation and the applicants visa was cancelled on 8 July 2015. However, the applicant sought revocation of the cancellation and the Minister revoked the cancellation and issued a further warning.[9]

   [9]    ibid

7. On 8 July 2015, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act.[10] On 21 July 2015 the applicant was released from criminal custody but transferred to migration detention s.189(1) of the Act.[11]

   [10] ibid

   [11]  ibid

8. On 3 February 2016, the mandatory cancellation of the applicant’s visa was revoked, and the applicant was issued another formal warning. As a result, he was released from immigration detention on 4 February 2016.[12]

   [12] ibid

9. On 28 October 2016 applicant was convicted of criminal offences and sentenced to 2 years and 6 months imprisonment (non-parole period of one year and three months) and disqualified for driving until 3 June 2039.[13] As a result the applicants visa was mandatorily cancelled under s.501(3A) of the Act. On 31 August 2017 the applicant was released for criminal custody and transferred to immigration detention.

   [13] ibid

10. On 18 September 2017 the applicant made a request for revocation of the mandatory cancellation decision which was refused on 21 May 2018.  The applicant applied to the Administrative Appeals Tribunal (AAT) on 24 May 2018 for review of the mandatory cancellation decision. The AAT affirmed the decision on 6 August 2018.[14]

    [14] ibid

11. The Tribunal affirmed the decision not to revoke the cancellation and the applicant applied to the Federal Court on 7 November 2018. The Federal Court dismissed the application. The applicant appealed the decision to the Full Federal Court and the application was finally dismissed on 6 March 2020[15].

    [15] Department ICSE records

12. The applicant applied to the federal Circuit Court (FCC) for a review of the AAT’s decision which was dismissed by the FCC on 10 October 2019.[16]  The applicant then applied to the Full Federal Court of Australia (FCA) to review the FFC’s decision. On 29 January 2020 the applicant applied to the FCC for a review of the AAT’’s decision. On 6 February the FCC transferred the matter to the FCA on 6 March 2020. The FCA dismissed both matters.[17]

    [16] ibid

    [17] ibid

13. The applicant applied for a protection visa on 6 April 2020 which was refused on 21 April 2020. The applicant sought review of this decision to the Tribunal on 27 April 2020.

14. In considering, the review of the application protection visa application the Tribunal has placed no weight on the applicant’s criminal record for the purposes of making its decision.  The issue for the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act.

Applicant’s Identity and country of reference

1. The applicant claims that he was born [Date 1] in [City 1], Portugal.[18] The applicant has not provided the department or the Tribunal any documents in relation to his identity. Nevertheless, the Tribunal notes that an assessment of the applicant’s identity was undertaken by the department on 13 October 2015 by which it was satisfied that his identity is as claimed.[19] The delegates decision refers to the fact that the assessment undertaken included evidence from the Australian Government Department of Human Services (DHS) which confirmed that he has had a record with DHS since [July] 1990. DHS advised the department that it held document evidencing the applicant’s identity which included birth certificate, bank statements Medicare card, school reports, prison release certificate and industry training certificate.[20]  

   [18] Applicants Protection Visa application dated 7 April 2020 Delegates decision dated 4 April 2014; Department file [File number], Dept Ref ID: [Ref Number 1], Doc ID: [Doc number 1]

   [19] Ibid; [Document number 1]; [Ref Number 3].

   [20] Ibid; [Ref Number 4]

2. The delegates decision also notes that records obtained for the NSW Department of Corrective Services indicates that the applicant has been recorded as having been known as [Alias 1] (DOB:[Date 2]) and [Alias 2] (DOC:[Date 1]).[21]

   [21] ibid; [Ref Number 5] @p.48

3. The delegates decision notes that a check of the department systems confirmed that there is no record of the applicant having made an application for Australian citizenship.[22]

   [22] Ibid; [Document number 2]

4. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.  Therefore, based on the documentation obtained by the department, and in the absence of any evidence to the contrary, the Tribunal accepts and finds that the applicant was born on [Date 1] in Portugal and that he is a citizen of Portugal. As such, his protection claims will be assessed against Portugal as the country of reference and 'receiving country' respectively.

Applicants Claims for protection

1. The applicant’s claim for protection is detailed in his application for protection visa[23] as follows:

   [23] Department file [File number], Dept Ref ID: [Ref Number 1], Doc ID: [Doc number 1]

   Why did you leave that country/countries?

   ‘Accompanied family members to Australia’

   What d you think will happen to you of you return to that country/countries?

   ‘Applicant has multiple significant mental health issues – primarily bipolar, brain injury (from motor vehicle accident) and schizophrenia and epilepsy. Portugal currently does not have infrastructure to provide care – particularly in circumstances of worsening coronavirus impact’   

   Did you experience harm in that country/countries?

   ‘There is significant and consistent country information to establish – medical resources for psychiatrically ill – plainly inefficient’

   Did you seek help?  

   ‘Medical grounds may be properly prevented – difficulties…by impact of health resources – required to deal with coronavirus’   

   Did you move or try to move to another part of that country/those countries to seek safety?

   ‘Relocation not relevant -a national problem.’

   Do you think you would be harmed or mistreated if you return to that county/those countries?

   ‘I do not wish to return to Portugal because I have complex medical issues – which include severe brain injuries from brain damage – severe depression and psychotic issues (particularly after the murder of my SO(?). current medical condition includes bipolar, schizophrenia… drug addiction – also epilepsy’

   Do you think the authorities of that country/ those countries can and will protect you if you go back?

   ‘To the best of appellats knowledge the Portuguese health system is unable to provide the fundamental care that is required. Would not receive appropriate care as a result of the medical system not existing’

   ‘Further the situation is greatly…by the coronavirus. Portugal has put great medical resources into treating this… Client has medical issues that could weaken his resilience to the virus’

2. The delegates decision[24] summarised the applicant’s claims as follows

   (a)He has significant mental health issues which include depression, epilepsy, bipolar disorder and schizophrenia. He has previously battled drug addiction.

   (b)Portugal does not have the infrastructure to provide mental health care particularly in the circumstance of the worsening coronavirus situation. The country has put all its medical resources in treating coronavirus patients.

   (c)The applicant has medical issues that could weaken his resilience to the coronavirus.

   (d)There are significant and consistent country information to indicate that medical resources for the psychiatrically ill is insufficient in Portugal.

   [24]  Delegates decision dated 21 April 2020, Dept File: [File number] Dept Ref: [Ref Number 2] Doc ID: [Doc number 2].

3. The applicant’s migration agent provided a written submission[25] to the delegate by which it was submitted that:

   [25] Applicants submission dated 31/03/2020; [Ref Number 6].

   (a)The applicant has extensive significant mental disabilities which include brain injury, depression, bipolar disorder, schizophrenia and epilepsy.

   (b)The applicant has been prescribed anti-psychotic medications including Diazepam, Methadone, Clonazepam and Maxolon to treat his seizures, bipolar disorder and schizophrenia.

   (c)The situation is exacerbated by virtue of the protracted period that the applicant has spent in Australia. He has not been in Portugal since 1974 (aged [age] years old) and he has had no contact with anyone in Portugal.

   (d)Given his previous addiction to heroin, the lack of help and meaningful assistance in Portugal could result in the very real prospect of the applicant drifting towards drug abuse again.

   (e)Additionally, the loss of his firstborn child in [year] and the murder of his son [detail omitted] in 2015 will further exacerbate the applicant’s medical conditions on return to Portugal.

   (f)Another concern is whether the applicant would immediately qualify for any type of care provided by the state, considering he has never previously contributed to Portugal’s economy.

   (g)There is also the impact of the coronavirus, which is currently having a grave impact in Portugal, using up what limited, overworked health facilities there are. The wave of this illness has just struck Portugal and there have been approximately 2000 infections in the last few days, with a rapidly rising death toll (64% as of 23/3/2020). Only 14 patients have been pronounced "cured" out of more than 2000 and there is the expectation that these figures will double every day.

   (h)A media article amplifies that a few years ago Portugal switched to a "care in the community" model, the result of which.... "has been that only one in five patients in need of treatment in the community actually receives any care and support at all". The article states.... " the support network has crashed on take-off... that there is scant care in the community... that there is the closure of large hospitals" etc.

Applicants supporting documentation

1. The applicant has provided the following material to the department:

   a.Online news item from The Portugal News titled ‘Little offer of continued mental health care’ dated 30 December 2019

   b.Online news item from Algarved Daily News titled ‘Portugal’s mental health patients left to cope alone’

   c.Print out of purported online news items from Portugal Resident titled ‘164 cases battling in ICU’[26]

   d.Statement of claims made by the applicant’s migration agent dated 31 March 2020[27]

   [26]  Department file [File number], Dept Ref ID: [Ref Number 7], Doc ID: [Doc number 3]

   [27]  Department file [File number], Dept Ref ID: [Ref Number 6], Doc ID: [Doc number 4]

2. The applicant has provided the following material to the Tribunal:

   a.Statement of claims made by the applicant’s migration agent dated 19 July 2020[28]

   b.Medical history of the applicant issued by [Medical Services Provider 1] for a variety of clinical consultations from 10 August 2015 until 11 February 2018[29]

   c.Letter from consultant physician neurologist, [Dr B], dated 31 January 2018 addressed to [Dr C] detailing the applicant’s medical history and referring for future treatment[30] 

   d.Online news item from Algarved Daily News titled ‘Portugal’s mental health patients left to cope alone’

   e.Online news item from The Portugal News titled ‘Little offer of continued mental health care’ dated 30 December 2019

   f.Online news item titled ‘Barriers to mental health services utilisation in Portugal – results from the National Mental Health Survey’

Applicants Evidence

[28]  Tribunal file, doc ID: [Doc number 5]

[29]  ibid.

[30]  ibid.

1. The applicant evidence to the tribunal was that he was born [Date 1] in [City 1], Portugal.[31] The applicant confirmed that he travelled to Australia from Portugal as an infant with his mother. His evidence was that his father initially travelled to Australia with the rest of the family following approximately twelve months later. The applicant’s mother is still alive, but his father passed away approximately four years ago. His father worked in the [specified industry] in [City 2] NSW. The applicant has [brothers] and a sister all of whom live in Australia.

   [31] Applicants Protection Visa application dated 7 April 2020 Delegates decision dated 4 April 2014; Department file [File number], Dept Ref ID: [Ref Number 1], Doc ID: [Doc number 1]

2. The applicant attended school in [named] High School until year 10 after which he worked as [an Occupation 1] and then as [an Occupation 2].[32]  The applicant reads, speaks and writes English. There is no evidence that the applicant speaks reads or writes Portuguese.

   [32] Department file [File number], Dept Ref ID: [Ref Number 1], Doc ID: [Doc number 1],

3. The applicant stated that he was in a de facto relationship since May 1990 which ceased when his partner passed away a few months prior. The had [a number of] children. The applicant had a daughter passed away as an infant and one of his sons was murdered when he was [age] years old. The applicant claimed that when his son died, he started [using a drug] which has greatly affected his mental health. The applicant continues to live in [City 1 with his mother, [siblings] and [adult sons]. He has indicated that he maintains close contact with friends in Australia and stated that he contacts his Australian siblings several times a week. The applicant has not identified any contacts or relatives in Portugal.[33]

   [33] Department file [File number], Dept Ref ID: [Ref Number 1],, Doc ID: [Doc number 1],

4. In or about 1997 the applicant had a car accident in which he claims to have suffered facial injuries and a brain injury.

5. The applicant claims that he suffers from significant mental health disabilities including depression, epilepsy, bipolar disorder, brain damage due to injury and schizophrenia as well as a former drug addiction. The applicant’s representative claims that the applicant has been prescribed anti-psychotic medications Diazepam, Methadone, Clonazepam and Maxolon to treat seizures, bipolar disorder and schizophrenia.[34]

   [34] Department file [File number], Dept Ref ID: [Ref Number 6],, Doc ID: [Doc number 4],

6. The applicant claims that as a result of his mental impairment he will suffer serious or significant harm in his is returned to Portugal. He claims that he does not have any family or other support in Portugal. All his relatives (save or one who is living in [country]) are living in Australia. His last surviving relative in Portugal, his grandmother, passed away approximately two years ago.

7. The applicant claims that if he is returned to Portugal, he will not receive the appropriate or necessary treatment for his mental condition. He claims that that he will not be able to receive the appropriate medication. In addition, he claims that there are no outpatient facilities in Portugal which would enable him to be treated effectively and appropriately.

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[35]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[36]

   [35] s.5AAA Migration Act 1958.

   [36]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[37] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [37]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p.482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[38] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Applicant’s Refugee Claim

Relevant Grounds

[38]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. The applicant submits that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his membership of a particular social group.  That is, as a person who suffers from a mental illness being depression, epilepsy, bipolar disorder, brain damage due to injury and schizophrenia as well as a former drug addiction. 

2. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.[39] While the Tribunal has reservations that suffering from a mental illness represents a common element or characteristic that units the applicant with a group, and sets him and the group apart from society at large, it is prepared for the purposes of this decision to accept that the applicant is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

Applicant’s well-founded fear.

[39]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. In addition, the criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[40]

   [40] Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. The concept of persecution under s.5J the Act requires that the act of persecution be perpetrated on the applicant by others causing the applicant serious harm. That is, it requires systematic and discriminatory conduct.  As such s.36(2)(a) is concerned with persecution of the applicant by others for a reason detailed in s.5J and does not encompass the harm suffered by a person as a result of an illness arising on return to their country.[41]  Therefore, while an applicant may suffer serious harm arising from their mental illness, the question is whether they face a real chance of persecution for the essential and significant reason of their membership of that particular social group.[42] This will depend in the motivation on the alleged agents of harm. For the reasons below, the Tribunal finds that the applicant does not face a real chance of persecution in circumstance here there is a lack of appropriate mental health care.

   [41] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 per Collier J @ [30], [31]

   [42] s 5J(4)(a) of the Act

4. In this case the applicant claims that he will be persecuted by reason of his mental condition as he will not be able to access an appropriate level of care by reason of the Portuguese government having systematically and discriminatory failed to provide adequate mental health services.   Accordingly, he claims that there is a real chance, he will suffer serious harm by as a result of his mental health if he is returned to Portugal.

5. While The tribunal accepts that the applicant fears serious harm on a subjective basis, for the reasons expressed below the Tribunal does not accept the applicant’s claims that  he will suffer serious harm on an objective basis in the event that he is returned to Portugal. 

Accepted Facts.

1. Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that:

   (a)The applicant was born [Date 1] in [City 1], Portugal.

   (b)The applicant travelled to Australia from Portugal as an infant with his mother.

   (c)The applicant has a mother, [brothers] and sister who all live in Australia.

   (d)The applicant has [sons] who continue to live in Australia.

   (e)The applicant [named] High School until year 10

   (f)The applicant worked as [an Occupation 1] and then as [an Occupation 2]. 

   (g)The applicant reads, speaks and writes English and does not speak, read or write Portuguese.

   (h)The applicant has no relatives in Portugal.

   (i)The applicant had a car accident in or about 1997 in which he suffered facial injuries and a brain injury.

Applicant’s Claim as a Refugee

Mental Health Care in Portugal  

1. The applicant claims that  there is a real chance he will suffer serious harm if he is removed for Australia to Portugal by reason of the fact that he suffers from significant mental disabilities which include brain injury, depression, bipolar disorder, schizophrenia and epilepsy. The applicant provided the Tribunal with a General Health Summary from [Medical Services Provider 1] and a medical report for [Dr B] dated 31 January 2018.[43] Based on the reports provided and the applicant’s own evidence the Tribunal accepts and finds that he suffers from a brain injury, depression, bipolar disorder, schizophrenia and epilepsy as claimed. 

   [43] General Health Summary from [Medical Services Provider 1] medical report for [Dr B] dated 31 January 2018; File No 2007574 Doc Id [Doc number 5]

2. The applicant claims that if he is returned to Portugal, he will suffer serious harm arising from his mental illness by virtue of the character of that country. That is, the deficiencies in the health care in Portugal will result in the applicant being seriously harmed rather than any act causally connected with the applicant’s mental health upon his return to Portugal.[44]  The applicant claims that the Portuguese government have been informed of the lack of mental health care and have engaged systematic and discriminatory conduct against those with mental health conditions by failing to establish an effective mental health system. Its claimed that the deficiencies in the health care rather than acts causally connected to the applicant’s mental health will result in the applicant being seriously harmed upon his return to Portugal.[45]  

   [44] Applicant’s submission dated 31 March 2020; [File number] [Ref Number 6] Doc ID: [Doc number 4]

   [45] [Mr A] & Co letter dated 31 March 2020.

3. The applicant provided newspaper reports[46] which stated that despite the reorganisation of the mental health hospital network and inadequate response to mental health care requires a high number of patients to remain in hospital. It reports that the provision of continuing mental health care is still ‘very insufficient in the face of existing needs and very asymmetric.’ Another article provided by the applicant notes that despite Portugal closing its specialist mental health units and switching to a ‘care in the community’ model five years ago, it is yet to commence the ‘care in the community’ model as planned.[47]

   [46] The Portugal News, ‘Little Offer of continued mental health care.’ By Kim Schiffman 20 December 2019; the-community-programme-has-failed.

An article on reforming the mental health system[48] in Portugal states that  to promote an effective mental health system, the World Health Organization (WHO) has made several recommendations, namely, a larger involvement of primary healthcare in prevention and treatment of mild diseases, community-based care for serious mental illnesses, more integrated care, better access to care, and less discrimination.[49] An evaluation of the Portuguese mental health plan carried out in 2017 stated that Portugal is failing to achieve such recommendations.[50] The article notes that the Portuguese mental health system is essentially centred around inpatient stays and emergency consultations, which consume more than 80% of the resources, coupled with an insufficient provision of community-based services.[51] A cross-country comparison has shown that Portugal is below other European countries in terms of development of community-based mental health centres and mental health teams.[52] The article refers to the prevalence of lifetime mental disorders in Portugal being above 30%,[53] that MH disorders represent 11.7% of disease-adjusted life years lost, and that Portugal experiences a high prevalence of depression (7.9%), anxiety (16.5%), impulse disorders (3.5%), and substance abuse (1.6%) in comparison with other European countries.[54]

[48] Perelman, J., Chaves, P., de Almeida, J.M.C. et al. Reforming the Portuguese mental health system: an incentive-based approach. Int J Ment Health Syst 12, 25 (2018). ibid; World Health Organization. Improving health systems and services for mental health. Switzerland: World Health Organization; 2009.

[50] Perelman, J., Chaves, P., de Almeida, J.M.C. et al. Reforming the Portuguese mental health system: an incentive-based approach. Int J Ment Health Syst 12, 25 (2018). ibid; Joint Action on Mental Health and Well-Being. Towards community-based and socially inclusive mental health care: situation analysis and recommendations for action. Reykjavík: Joint Action on Mental Health and Well-Being; 2015.

[52] Perelman, J., Chaves, P., de Almeida, J.M.C. et al. Reforming the Portuguese mental health system: an incentive-based approach. Int J Ment Health Syst 12, 25 (2018). ibid

[54] ibid

Nevertheless, an article in relation to the Portuguese mental health system [55] suggests that the prevalence of mental health problem in Portugal is not significantly different from that encountered in similar European countries, but states that the most vulnerable groups such as women, the poor, the elderly appear to be at a higher risk than in Europe. The article notes that aspect in relation to the development of the mental health system in Portugal has been positive in recent decades. For example in the early 1960’s it was one of the first European countries to adopt a national law[56] in accordance with the principles of sectorisation, which enabled the creation of mental health centres in every district and the development of important  movements, such as social psychiatry and the integration of mental health in primary care. In addition new mental health legislation approved in the 1990s reinforced the development of mental health care in accordance with the principles recommended by major international organisations in the area of mental health service organisation.[57] This included the creation of decentralised services which improved the accessibility and quality of care. It provided greater interaction with health centres and other community agencies.[58] Another positive aspect was the development of psychosocial rehabilitation programmes and structures, created as part of the European Union's (EU's) Horizon 2020 initiative.[59] The article refers to the fact that that nationwide coverage for these services is still not complete but notes that important steps have been taken with the availability of care having been greatly improved. An article by the World Health Organisation[60] listed the major milestones in the development of the Portuguese’s mental health system including the Mental Health Policy plan in 2007 and the Creation of a National Coordination Body for Mental Health in 2008. 

[55] Portuguese National Mental Health Plan (2007–2016) Executive Summary by JM Caldes de Almedida, Ment health Fam Med 2009 Dec 6(4):233-244; Portuguese National Mental Health Plan (2007–2016) Executive Summary (nih.gov).

[56] ibid

[57] ibid

[58] ibid

[59] ibid

[60] World Health Organisation, ‘Portugal- Effective and Humane Mental health Treatment and Care for all’, Ministry of Health Portugal & Department of Mental Health and Substance Abuse. World Health Organization, Geneva 2009, ttps://>

However, despite the developments, the article refers to lack of planning for the improvement of mental health services as to the reason why Portugal lags other European countries in the provision of mental health services. It notes that existing data and analysis of results from research undertaken as part of this report reveal that mental health services suffer serious deficiencies in terms of accessibility, equity and quality of care.[61] The country information[62] reports that despite the profusion of legislation, the landscape of psychiatric care in Portugal has remained almost unchanged. Apart from a few areas where community care exists and works, the reforms required for the better rehabilitation and social inclusion of chronic psychiatric patients have remained the same. It’s suggested that the reason for delay in care has been the distance between mental health practice and the contents of the laws and guidelines.[63]

[61] ibid.

[62] ‘Psychiatry and mental health in Portugal’ João Marques-Teixeira MD PhD1 and Elisabete Fradique MD; ibid