2007726 (Refugee)

2007726 (Refugee) [2024] AATA 4314 (2 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007726
COUNTRY OF REFERENCE:                   Mauritius
MEMBER:Nicole Burns
DATE:2 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2024 at 2:41pm

CATCHWORDS
REFUGEE – protection visa – Mauritius – previous marriage and divorce, and sponsorship for spouse visa withdrawn – current relationship and young child – religious families, stigma of divorce and as non-practising Muslim, and threats from ex-wife’s family – economic conditions and capacity to subsist – intervention order and criminal record – inconsistent evidence – passage of time – country information – separation from partner and child not significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 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 [Age]-year-old male from Mauritius who first came to Australia to study [in] June 2008. He applied for the protection visa on 26 February 2015.
The applicant appeared before the Tribunal on 22 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr A], and his fiancé, [Ms B].
The issue in this case is whether the applicant is owed protection as a refugee or based on the complementary protection provisions (detailed below). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The Tribunal accepts the following about the applicant’s background based on his evidence before the Department and Tribunal.
The applicant came to Australia aged [Age] after he finished high school in Mauritius, to study [subject 1]. He did not complete the course.
In Mauritius he lived in [District] along with his parents and brother. His brother came to Australia in 2014 to study [subject] and is now an Australian citizen. The applicant’s parents continue to reside in Mauritius. His mother visits Australia regularly and his parents plan to migrate permanently here.
In Australia the applicant met an Australian citizen of [Country] descent – [Ms C] – and they married in June 2009. Their relationship broke down in around 2011 and their divorce was effective from [December] 2012, evidenced by a copy of a divorce order issued by the Federal Magistrates Court of Australia the applicant provided to the Department. [Ms C] withdrew her sponsorship related to the applicant’s partner visa application at this time.
Presently the applicant is engaged to an Australian citizen, [Ms B]. They live together in Melbourne along with their daughter who was born on [Date]. The applicant works as [occupations 1 and 2].
Protection claims and evidence
In the protection visa application form the applicant set out his initial claims, as follows (in summary):
·He left Mauritius in 2008 when [Age] years of age to gain a better education and become [an occupation 3].
·He will not be able to find a place to live if he returns as his parents will not support him.
·It will be hard to get a job as he grew up in Australia and all his work experience is in Australia as are all his friends who support him.
·As a Muslim who is divorced he is a disgrace. That is a hard thing for him to face as his whole family is very into religion.
·He will be mistreated on return as he grew up in another country and has not followed the religion that he had as a child.
·As a divorced man he will be looked at differently.
·His ex-wife’s whole family lives in Mauritius.
The applicant provided a typed statement dated 23 February 2015 to the Department in which he states in summary:
·In Australia he met a woman called [Ms C]. They lived together and married on [Date 1].[1] His parents did not consent to the marriage.
·After marriage they decided to build a house and buy a car. [Ms C] agreed to sponsor him on a spouse visa so he could work full-time. He bought a car for her. [Ms C] abused his savings and was ill-treating him.
·His wife committed adultery and when he questioned her she accused the applicant of family violence and they divorced. She later removed him from the spouse visa.
·His family are ‘high religious believers’ in Mauritius and were against him marrying a girl from a different country. They believe he should have married according to their wishes in an arranged wedding. As he ignored their objection he has been rejected from the whole family and they made a will where he does not form part of the heir of their property.
·He has lived a stressful life for years without any family support and in loneliness. He wanted to go back home but will be homeless and jobless.
·Although Mauritius is a good country the job market is highly corrupted and hard to enter without connections. He left at an early age and to start a new career there is mostly impossible.
[1] The year appears to be a mistake. The divorce order indicates they were married on [Date 2 (different year)].
The applicant also provided to the Department a statutory declaration from a friend, [Ms D], dated 18 February 2015. In it she states, among other things, that she had lived with the applicant for almost five years; that he was generous and responsible; and he has no real contact with his family in Mauritius. Also provided was a statutory declaration from a work colleague (at a [workplace]), [Mr E], dated 18 February 2015, attesting to the applicant’s character.
According to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review) the applicant was interviewed by the delegate on 1 April 2020. He told the delegate that he had received threats from [Ms C]’s relatives in Mauritius after their divorce, who also purportedly visited his parents there. Afterwards he provided further details about his work history in Australia (including as [occupations 1, 4-6]); a copy of his criminal record in Victoria; and a copy of an intervention order (IVO) issued by the [Magistrates Court] [in] October 2011 (expiring [in] October 2012) listing him as the respondent and [Ms C] as the protected person.
The delegate accepted the applicant had married and then divorced [Ms C] in Australia as claimed but did not accept the applicant’s evidence that she or any of her relatives had threatened him or his family members in Mauritius. Nor did the delegate accept the applicant’s claims that he was disinherited because of his marriage. The delegate refused to grant him a protection visa on 22 April 2020, not satisfied he was owed protection obligations in relation to his marriage breakdown or for any other reason on return to Mauritius.
On review the applicant advised the Tribunal of his changed personal circumstances. Specifically in a typed statement he advised that he had a partner and attached a letter from her ([Ms F]), and her daughter ([Ms G]), who note, among other things, that he is supportive.. At hearing the applicant advised his relationship ended with [Ms F] when she moved to Queensland. The Tribunal accepts his evidence in this respect.
In a typed statement the Tribunal received on 30 June 2024 the applicant advised that he is now in a relationship with [Ms B], and their daughter was born on [Date]. In that statement the applicant also advised that his brother had become an Australian citizen.
At hearing the applicant described the inception, development and breakdown of his marriage to [Ms C] whom he met not long after he came to Australia. His parents were against their marriage because he was young and had come to Australia to study. He said there were some communication issues with his family when he and [Ms C] visited Mauritius together in 2010 (he did not elaborate). Further, one of his uncles in Australia had advised him not to marry [Ms C] because her family was very religious. However because he was young and thought he knew better, the applicant did not listen. He married [Ms C] in [Year] and they lived together in a bungalow at the back of her parents’ house.
The applicant said after some time he found [Ms C]’s parents controlling and wanted to move out and live independently. Around this time his mother-in-law falsely accused him of cheating and [Ms C] kicked him out of their home. Sometime later [Ms C] sought an IVO against the applicant after he had tried to reclaim his car, however because it was in her name she called the police on him. The applicant said later at court when he was able to show proof that he was servicing the car loan (among other things) the IVO was ‘thrown out’. He had no further contact with [Ms C] or her family after this; even the divorce certificate was delivered by a third party to his door.
Nonetheless during the time of his separation and divorce the applicant said some of [Ms C]’s relatives (specifically her uncle and grandfather) who lived in [Town], Mauritius, would visit his parents’ house – located around 10 minutes’ drive away – and complain about the applicant. This happened for around two or three years and was the reason he applied for protection (in 2015). He also received four or five threatening phone calls from [Ms C]’s uncle from Mauritius until the applicant blocked the number in around 2016. He added that sometimes [Ms C]’s cousins used to prank call his parents’ house.
The applicant said his parents were upset with his marriage breakdown because of these problems, as well as the damage to their family’s reputation. Their relationship was strained and they barely spoke as a result. However after the applicant’s brother came to Australia to study in 2014 they resumed contact. Nowadays the applicant said his relationship with his parents has improved; they are happy about his engagement to [Ms B] and the birth of his daughter. His parents plan to visit Australia this year and stay for six months, sharing their time with the applicant and his family, and his brother.
When asked if that means he will now receive an inheritance, the applicant said he is unsure as he does not discuss this with his parents. He confirmed his parents own four double‑story properties in Mauritius.
When asked about his concerns on return to Mauritius now given the passage of time and change of circumstances, the applicant said he does not want to leave his partner or daughter, whom he financially supports. He indicated that if unsuccessful, they plan to lodge a partner visa application. His fiancé reiterated these concerns and plans in her evidence to the Tribunal.
The applicant’s brother told the Tribunal he was young when the applicant moved to Australia to study. He understands that the applicant applied for protection in 2015 due to problems in Mauritius caused by his marriage but that that was no longer the case. He confirmed that around this time some of the applicant’s now ex-wife’s relatives would visit his parents in Mauritius and threaten them.
FINDINGS ABOUT THE APPLICANT’S PAST EXPERIENCES AND FUTURE FEARS
Having regard to the evidence before it, including the applicant’s oral and written evidence, the oral evidence of the witnesses, and the supporting documents provided to the Department and Tribunal, the Tribunal makes the following findings with respect to the applicant’s protection claims and whether his fears of persecution on return to Mauritius are well‑founded.
Fear of persecution due to his marriage breakdown
The Tribunal has considered if the applicant faces a well-founded fear of persecution from [Ms C] and/or her relatives, his own family or anyone else on return to Mauritius due to his marriage breakdown.
The Tribunal accepts the applicant married [Ms C] in Australia in [Year], they separated in [Year] and were divorced by the end of [Year]. The applicant has described several difficulties in his marriage including [Ms C]’s overbearing parents and that he wanted more control over his finances and to live independently. He also told the Tribunal his mother-in-law falsely accused him of having an affair, which resulted in [Ms C] telling him to leave. However in his application form and statement his reasons for their breakup were different, indicating that [Ms C] had committed adultery, abused his savings and was ill‑treating him. He also claimed she accused him of family violence when he questioned her and provided a copy of an IVO. At hearing the applicant explained that [Ms C] had called the police one time when he visited her house to reclaim the car he had been paying off even though it was in her name. Once he explained the situation at court at a later date (and showed evidence he had been repaying the car loan), the applicant said the matter was thrown out.
The exact reasons for the applicant’s marriage breakdown and reasons for the IVO (for example) issued after they had separated remain unclear to the Tribunal, given some inconsistencies in his evidence in these respects as noted. Nonetheless the Tribunal accepts their marriage ended and there could have been several precipitating reasons. It also accepts their divorce was finalised in late 2012, and an IVO was issued in October 2011 and expired a year later (in October 2012) which shows the applicant as the respondent and [Ms B] as the protected person. Further, the Tribunal accepts, based on the applicant’s oral evidence, that the last time the applicant had any contact with [Ms C] or her parents was in court in relation to the IVO.
The Tribunal accepts the applicant’s parents were unhappy with his marriage to [Ms C] in the first place, given his young age, and its impact on his study plans. He claimed at the protection visa stage that one of the reasons they disapproved of his relationship with [Ms C] (who is Muslim) was because they were ‘high religious believers’ in Mauritius and were against him marrying a girl from a different country. However at hearing the applicant said whilst his parents are Muslims, they are not particularly strict.
As well, the Tribunal accepts the applicant’s claims that he barely spoke to his parents after his marriage and after his divorce generally only when his mother would call to berate him. It accepts his parents were upset with him and expressed this verbally. The Tribunal accepts this may have included his mother threatening to disinherit him although it does not accept that this was set out in a will as indicated in his February 2015 statement because he made no mention of such at hearing and was vague in his interview with the delegate about an alleged will (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review).
Looking to the future, at hearing the applicant told the Tribunal his relationship with his parents has mended, assisted in large part by his brother’s move to Australia in 2014 – who lived with him for the first year and a half after his arrival. He described his parents’ delight at the arrival of his daughter in March this year – their first grandchild – and their plans to visit and spend six months with them, with the view to eventually migrate here. The applicant said during his parents’ visit they plan to set a date for his wedding to [Ms B]. The Tribunal accepts his evidence in this respect. It accepts the applicant has a relationship with his parents who are accepting and supportive of his present circumstances including his fiancé and newborn daughter. Given this the Tribunal does not accept the applicant would face serious harm from his parents, or any other relative on return to Mauritius in the foreseeable future because of his marriage breakdown, which took place over 12 years ago.
The Tribunal has gone on to consider the applicant’s claims that several of [Ms C]’s relatives who reside in Mauritius had threatened him (and his parents) after his marriage breakdown, including her grandfather, uncles and cousins. It notes, as did the delegate, the applicant failed to mention these alleged threats from [Ms C]’s relatives in Mauritius in his protection visa application and February 2015 statement, despite claiming the threats occurred over a two‑or so‑year period after his marriage breakdown, preceding his protection visa application. At his interview with the delegate the applicant said he was unsure why he failed to mention the threats initially but noted he was going through a lot of stress.

The Tribunal also notes the applicant’s evidence about the number of alleged threats has grown. For instance, at his interview with the Department (as recorded in the delegate’s decision record) he states he received two phone calls from [Ms C]’s uncle before he blocked the number. However at hearing he said he received four to five threatening phone calls from him.
Given these concerns, the Tribunal is of the view that the applicant exaggerated the nature and number of threats he purportedly received from [Ms C]’s relatives in Mauritius after their divorce. As the Tribunal accepts they were divorced, and that [Ms C]’s relatives reside in Mauritius (as consistently claimed), it accepts her uncle and grandfather may have been upset and voiced their disapproval with the applicant over the telephone and by visiting his parents on occasion. The Tribunal also notes the applicant’s brother’s oral evidence in this regard.
However on the applicant’s oral evidence at hearing, the last time this happened was around two or three years after their divorce in 2012; that is, in around 2015, which is almost 10 years ago. [Ms C] and the applicant divorced over 12 years ago and at hearing the applicant confirmed there are no unresolved issues between them, such as division of assets, for example.
The applicant said at hearing that some of [Ms C]’s cousins in Mauritius had made prank calls to his parents. However his oral evidence was vague and the Tribunal does not accept that occurred.
Given these considerations, the Tribunal finds remote the chance the applicant would be seriously harmed by [Ms C] or any of her relatives who reside in Mauritius on return there in the foreseeable future.
The applicant claimed at the protection visa stage that he would be considered a disgrace and looked at differently as a divorcee on return to Mauritius. The Tribunal accepts there may be some level of disapproval and/or discrimination for divorcees, including Muslim divorcees in Mauritius, but it is not satisfied this would amount to persecution. As noted by the delegate in their decision record, divorce is available in Mauritius. Further, there is no information before the Tribunal indicating that divorced men and/or divorced Muslim men face persecution from the authorities or community in Mauritius.
For these reasons the Tribunal finds the applicant’s fears of persecution from [Ms C], [Ms C]’s relatives, his relatives and/or the community more generally as a result of his marriage breakdown, including as a divorced Muslim, are not well-founded.
Non-practising Muslim
In his application form the applicant said another fear he has on return to Mauritius is due to growing up in another country and not practising his Islamic religion, noting his family are high religious believers. As noted earlier, whilst the Tribunal accepts the applicant’s parents are Muslims who practise their faith by going to the mosque regularly (for example), based on the applicant’s oral evidence at hearing, it finds they are not particularly strict. It notes in this respect their acceptance of his engagement to [Ms B], who is a Christian.
At hearing when this issue was discussed the applicant said he grew up Muslim and used to attend the mosque on Fridays in Mauritius. However he does not practise at all in Australia. His fiancé is Orthodox Christian and their child does not have a religion at this stage; he said she can decide what she wants when she grows up. When asked if his parents are aware of this, including that he does not practise his Islamic faith in Australia, the applicant replied ‘yes’ and agreed that they are fine with it.
He has some concern on return to Mauritius about the community talking about him if he does not practise there, noting the country is small and everyone would know.
The Tribunal accepts the applicant is a non-practising Muslim in Australia and would likely be on return to Mauritius. Based on the applicant’s oral evidence that his parents are aware of this fact and are fine with it, the Tribunal finds he would not face a real chance of serious harm from his parents on return to Mauritius if he does not practise Islam. The Tribunal accepts there may be some level of community disapproval if he returns as a non‑practising Muslim. However there is nothing before the Tribunal to indicate such disapproval may amount to persecution.
For these reasons the Tribunal finds the applicant does not face a real chance of serious harm from family members or community members on return to Mauritius as a non‑practising Muslim, and as a non-practising Muslim who has lived in Australia since he was [Age].
Economic concerns
In his evidence to the Department and Tribunal the applicant raised concerns about being able to get a job and a place to live if he has to return in Mauritius, noting (among other things) the substantial period of time he has been away; the lack of rental history; the lack of family support; the lack of connections; and that most of his work experience has been obtained in Australia. He also claims the job market is highly corrupted in Mauritius.
The Tribunal accepts the applicant has concerns about being able to obtain employment (and accommodation) on return to Mauritius, particularly given the significant period of time he has been away from his country, from the age of [Age]. It accepts most of his work experience has been in Australia. It therefore might be difficult for him to get work on return, at least initially. Nonetheless the applicant gave evidence at hearing that he completed high school in Mauritius and a Certificate IV (in [subject 2]) in Australia. He has extensive work experience here in different areas, including as [occupations 1 and 2]. For the reasons above the Tribunal accepts the applicant has reconciled with his parents and therefore it is satisfied they would be able to provide some support at least initially on return, such as a place to stay.
Further, the applicant has not claimed and there is no indication that he would be denied employment on return to Mauritius for any reason.
As discussed at hearing, the Tribunal also notes (as did the delegate in their decision record) country information indicates Mauritius is classified by the World Bank as an upper middle‑income country;[2] there are employment opportunities (in the informal and formal sector); and social welfare schemes.[3]
[2] World Bank Group, The World Bank in Mauritius, last updated April 5, 2024, Government of Mauritius, 'Ministry of Social Integration, Social Security and National Solidarity', accessed 1 August 2024.
Based on such country information and considering the factors in this case, including the applicant’s work history and family support as discussed above, the Tribunal is satisfied he would be able to subsist on return to Mauritius, even taking into account the significant length of time he has been away. The Tribunal finds that there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s 5J(5)(d)–(f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, should he return to Mauritius.
Other matters:-
At hearing the applicant said the main reason he does not want to return to Mauritius now is because he does not want to be separated from his partner and daughter. He and his partner have bought a house and he is the primary earner at the moment whilst she is on maternity leave. [Ms B] confirmed that was the case at hearing, indicating she is not sure how they will survive if the applicant has to leave.
The Tribunal accepts his evidence in this regard and accepts the primary concern the applicant has if he has to return to Mauritius relates to being separated from his newborn child and fiancé and being unable to continue to financially support his family in Australia. It accepts this would be emotionally difficult, if it eventuated. However being separated from a partner and/or child does not give rise to a well-founded fear of persecution as defined in s 5J of the Act, as the fear of persecution is not for one or more reasons set out in s 5J(a) and does not involve systematic and discriminatory conduct as required by s 5J(4)(c).
The Tribunal notes the applicant provided a copy of his Victorian police criminal record to the Department, dated 26 October 2019, a copy of which is on the Departmental file. It records charges for contravening family violence intervention orders in 2013 that were either dismissed or without conviction, and driving related offences in 2017, and 2018 for which he received a fine. The applicant has not made any claims in relation to his criminal history in Victoria and whilst the Tribunal accepts he has a criminal history, primarily for driving related offences, this is not relevant to what might happen to him on return to Mauritius. There is no claim nor indication that his criminal history in Australia would result in the applicant facing a real chance of serious harm on return to Mauritius from anyone for any reason.
For these reasons the Tribunal finds that the applicant does not face a real chance of persecution on return to Mauritius for any refugee reason in the reasonably foreseeable future and that his fears of persecution are not well-founded.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J of the Act. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
COMPLEMENTARY PROTECTION
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Mauritius and therefore finds that Mauritius is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out earlier, the Tribunal does not accept there to be a real chance that the applicant will suffer serious harm if he returns to Mauritius now or in the foreseeable future from anyone as a result of his marriage breakdown; as a non-practising Muslim; as a divorced Muslim; due to his criminal history in Victoria; or based on economic hardship. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of him being removed from Australia to Mauritius.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts the applicant is concerned about the possibility of being separated from his fiancé and daughter if he has to return to Mauritius. The Tribunal accepts that he would find this emotionally difficult. Nonetheless court authorities – specifically judgments in SZRSN v MIAC and GLD18 v MHA – confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[5]
[5] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
For these reasons 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 Mauritius there is a real risk he will suffer significant harm.
CONCLUSION
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).
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).
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.
Nicole Burns

Senior 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.
…

[2024] AATA 4314

2 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness