2017942 (Refugee)

[2021] AATA 4410

2017942 (Refugee) [2021] AATA 4410 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017942

COUNTRY OF REFERENCE:                   Czech Republic

MEMBER:L. Symons

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 4:33pm

CATCHWORDS

REFUGEE – Protection visa – Czech Republic – Australian citizen son – does not fear any harm in the Czech Republic – applicant’s son is subject to a ‘no fly’ restriction – Ministerial intervention referred –  strong compassionate circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 December 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 Czech Republic, first arrived in Australia [in] February 2017 as the holder of a subclass 651 eVisitor visa. She departed Australia [in] March 2017. She returned to Australia [in] October 2017 as the holder of a subclass 651 eVisitor visa. On 6 November 2018, she was granted a subclass 600 Visitor visa. On 4 January 2019, she was granted a Bridging visa in association with her application for a Protection visa. 

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 12 December 2018. The Department refused to grant the visa on 15 December 2020 on the basis that she is not a person in respect of whom Australia has protection obligations. On 15 December 2020, she applied to the Tribunal for a review of that decision.

4. On 1 September 2021, the Tribunal received a request for priority processing from the applicant’s migration agent. On 8 September 2021, the Tribunal received a letter from the applicant’s migration agent indicating that she was waiving her right to a hearing. In the circumstances, the Tribunal will proceed to make a decision on the review.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion. 

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She was born on [date] in the Czech Republic and is a citizen of the Czech Republic.

    ·She came to Australia on a Visitor visa. She married her ex-partner, who is an Australian citizen, [in] February 2018. She gave birth to their son on [date]. She separated from her ex-partner [in] August 2018 because of domestic violence.

    ·She did not experience harm in the Czech Republic and does not think she will be harmed or mistreated if she returns to the Czech Republic. She thinks that the authorities in the Czech Republic will protect her if she returns to the Czech Republic.

    ·If she returns to the Czech Republic she will be separated from her son.

13. The applicant has provided the Department with copies of her Czech Republic passport issued [in] 2015 and valid until [2025], her NSW Marriage Certificate and the NSW Birth Certificate for her son.

14. The applicant attended an interview with the Department on 9 December 2020 via telephone. During the interview, she stated that she came to Australia on a temporary visa. She married her ex-partner, who is an Australian citizen, in 2018. Their son was born in [year]. Her son is an Australian citizen. Her ex-partner subjected her to domestic violence so she left the family home and moved into a shelter. She subsequently moved to multiple shelters and was living in crisis accommodation at the time of the interview. She is now divorced from her ex-partner.

15. The applicant stated during her interview with the Department that the Family Court made an order that her son cannot leave Australia due to her ex-partner’s “custody rights”. She fears being separated from her son should she be removed from Australia. She does not fear any harm in the Czech Republic. 

16. Independent information before the Department indicates that the applicant’s son is subject to a ‘no fly’ restriction. The delegate found that she is a credible witness and accepted that she would be separated from her son if removed from Australia.

17. The Department found that the applicant is not a person in respect of whom Australia has protection obligations. Her application for a Protection visa was refused on 15 December 2020.

18. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 15 December 2020. She has also filed with the Tribunal a copy of final orders made at the Federal Circuit Court at Sydney [in] April 2021.

    Country of reference

19. The applicant claims to be a citizen of the Czech Republic and has provided a copy of her Czech Republic passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of the Czech Republic. The Tribunal finds that the Czech Republic is the country of reference for the purpose of assessing her claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

20. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Assessment of claims

21. In her application for a Protection visa, the applicant does not claim to have experienced any harm in the Czech Republic. She stated that she does not think she will be harmed or mistreated if she returns to the Czech Republic. She thinks that the authorities in the Czech Republic will protect her if she returns to the Czech Republic.

22. In submissions to the Tribunal received on 1 September 2021 and 9 September 2021, the applicant’s migration agent submitted that the applicant understands that she does not meet the criteria for a Protection visa. She wishes to seek Ministerial intervention as orders made by the Federal Circuit Court require her Australian citizen son to remain living in Australia. She has sole parental responsibility for him. She waived her right to a hearing before the Tribunal.

23. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any reason if she returns to the Czech Republic now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

24. Having considered the applicant’s claims, the evidence and in view of the finding above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to the Czech Republic now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

25. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

26. Having considered the applicant’s claims, the evidence and in view of the finding above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to the Czech Republic now or in the reasonably foreseeable future. 

27. Accordingly, 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 the Czech Republic, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

    Ministerial intervention

28. The Tribunal has been provided with a copy of final orders made at the Federal Circuit Court at Sydney [in] April 2021. Relevantly, the order indicates that the applicant have sole parental responsibility for the child, [name deleted] (born on [year]), and that he lives  with her. The order provides for contact between the child and his father. The order contains injunctions restraining the child’s father, inter alia, from removing the child from the applicant’s care contrary to the orders. The order also restrains the applicant and the child’s father from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia. The order also requests the Australian Federal Police to place the child’s name on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.  

29. The order made at the Federal Circuit Court at Sydney [in] April 2021 notes that the applicant’s child is an Australian citizen and that the applicant is living in Australia pursuant to a Bridging A visa. The order notes that the effect of the order is that the child live in Australia primarily with his mother. The Court requests that the Department, other relevant government authorities, the Tribunal and the Minister have regard to these final orders when determining any visa application for the applicant.

30. The applicant’s migration agent made written submissions requesting that the applicant’s case be referred to the Minister for consideration for Ministerial intervention on the basis that the case falls within the Minister’s Guidelines for Ministerial Intervention as follows:

    A)        Strong compassionate circumstances that if not recognised would result in serious irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident.  

    B)       Circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration.

31. Having regard to the circumstances in this case and having considered the Ministerial guidelines relating to the Minister’s discretionary power under section 417 of the Act set out in PAM3 “Minister’s guidelines on Ministerial powers (sections 345, 351, 417 and 501J)” the Tribunal considers that this case should be referred to the Department to be brought to the Minister’s attention. 

    CONCLUSION

32. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

33. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    L. Symons
    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.

    …