2202420 (Refugee)
[2022] AATA 2516
•7 June 2022
2202420 (Refugee) [2022] AATA 2516 (7 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rabiah Mariam Khawaja
CASE NUMBER: 2202420
COUNTRY OF REFERENCE: Estonia
MEMBER:Jason Pennell
DATE:7 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 7 June 2022 at 12.25pm
CATCHWORDS
REFUGEE – protection visa – Estonia – particular social group – criminal informant – fear of harm by criminal associates – applicant’s identity revealed in media reports – mental health condition – health and mental health facilities under resourced – delay in applying for protection – close ties to the community – Australian citizen son – Ministerial intervention requested – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 189, 195A, 351, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423Any 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 23 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Estonia, applied for the visa on 31 January 2022. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 23 February 2022 and provided the Tribunal with a copy of the delegate’s decision record.
4.The applicant appeared before the Tribunal on 19 May 2022 by video from detention to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
5.The Tribunal also received oral evidence from the applicant’s partner [Ms A]. The applicant was represented in relation to the review.
6.The applicant was lucid and cognisant throughout the hearing and was able to give evidence and was able to respond meaningfully to the Tribunal’s questions.
CRITERIA FOR A PROTECTION VISA
7.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.
8.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.
9.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).
10.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.
11.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
12.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 CLAIMS AND EVIDENCE
Applicant’s identity and country reference
13.The applicant claims that he was born on [date] in [Village 1], Harjumaa, Estonia. The applicant claims to be a citizen of Estonia and does not hold any other citizenship. The applicant is not a national of any other country, however as Estonia is part of the European Union, the applicant accepts that he does have a right to enter and reside in any one of the European countries.[1] The applicant claims that he is ethnic Estonian and that he does not belong to any religion.[2] In his protection visa application, the applicant indicated that he can speak, read and write in Estonian and English.[3]
[1] Application for a protection visa dated 31 January 2022, Department File Number [number], TRIM Reference [number], at page 14
[2] ibid, at page 15
[3] ibid, at page 13
14.The applicant provided the Department with a copy of his Estonian passport biodata page which confirms the date and place of the applicant’s birth.[4] At the time of lodgement, the applicant declared his relationship status as “de facto” [5] and included details of his de facto partner, [Ms A], his son [Mr B] and step son [Mr C], who are all Australian citizens.[6] The applicant also included details of relatives living overseas and indicated he has some contact with his mother and brother, residing overseas, via telephone a few times a year.[7]
[4] Department File Number [number], TRIM Reference [number]
[5] Application for a protection visa dated 31 January 2022, Department File Number [number], TRIM Reference [number], at page 2
[6] ibid, at pages 3-5
[7] ibid, at page 8
15.The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant is a citizen of Estonia and as such his protection claims will be assessed against Estonia as the country of reference and ‘receiving country’ respectively.
Migration History
16.The applicant was granted a Working Holiday Visa, Subclass 417 on 23 September 2009 and made first entry to Australia [in] October 2009. This visa was valid until [date] October 2010.[8]
[8] Department of Home Affairs – Movement Records, AAT Case 2202420, Doc ID 9622353
17.[In] October 2010, the applicant applied for a Working Holiday (Extension) Visa, Subclass 417 and was granted the associated Bridging Visa A, Subclass 010. This application was subsequently refused on 14 March 2012 under s501(a) because of the applicant’s substantial criminal record and the associated Bridging Visa A was also cancelled the same day.[9]
[9] Department of Home Affairs – ICSE Records
18.The applicant was held in immigration detention between 6 December 2012 to 16 September 2014. Between 16 September 2014 to 19 September 2019, the applicant was in the community after the Minister intervened under s195A of the Act to grant a Bridging Visa E on 16 September 2014, 11 February 2016, 23 March 2017, 10 May 2018 and 19 September 2019. This last Bridging Visa E ceased on 19 September 2020 and the applicant became unlawful after this date when a further s195A referral to the Minister was not successful.[10]
[10] Department of Home Affairs – Movement Records, AAT Case 2202420, Doc ID 9622353
19.On 11 November 2021, the applicant was detained under s189 of the Act and transferred to immigration detention where he continues to remain.[11]
[11] Department of Home Affairs – ICSE Records
20.The applicant first applied for a XA-866 Protection Visa on 15 September 2015 before subsequently withdrawing that application on 19 January 2017.[12]
[12] ibid
21.The applicant then applied for a XA-866 Protection Visa on 31 January 2022. This application was refused on 23 February 2022 and is the subject of this AAT review, case number 2202420.
Claims for protection
22.The applicant submitted claims for protection when he applied[13] to the Department for protection on 31 January 2022. The applicant’s claims are as follows:
Provide reasons why this applicant left that country or those countries:
I left Estonia as I was in danger as an anonymous Police informant, the Police didn't protect my anonymity and my name was all over the news. People who I assisted to arrest faced 3-12 years imprisonment.
Estonia is a very small country and there everyone knows everyone and it's impossible to hide. Understandably I cannot trust the Police/Authorities to protect me from harm in Estonia. I came to Australia for a holiday/travel and to get away. I didn't originally have plans to remain so long in Australia however I do now have a son and family here and am not able to be separated from them. There wouldn't be any point to seek protection in another country as I now have deep roots in Australia, particularly [City 1] and [City 2]. I have family here who would follow myself to another country if I was able to seek protection elsewhere, however my son would not be able to follow, and he would miss the opportunity to have a father for the most important years of his development. Some local people told me that those people had visited the area in which my mother had lived. took place in early 2009.
[13] Department File [number], TRIM Reference [number]
Did this applicant experience harm in that country or those countries?
No
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No. I left Estonia before I was able to experience harm. The current authorities in Estonia were not able to maintain my anonymity and I am fearful that if seek there help things will get worse. Estonia is a very small country, and it would be impossible I believe to hide from the criminals. In terms of other countries, I came to Australia to travel and to get far away from those criminals. I didn't have any set plans to either stay in Australia or leave, however with a son and family here I have deep roots in the community. I believe that if I leave, I have family here who would follow, which could possibly put them in danger from the same criminals.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
I'm scared that if I return to Estonia, I will be experiencing physical harm or torture by the criminals I helped to get arrested. I believe that with the type of criminal activities they are involved with I would be forced to be a drug mule for them. There was another person involved whose name was not put out into the public via the newspapers and it didn't take long for the criminals to find him and force him to be a drug mule transporting to [Country 1]. He was arrested in [Country 1] and sentenced to 7 years imprisonment. I have no faith in anything to be able to protect me from these criminals and am very fearful that I will face the same or a worse fate as the other person who was involved if to return to Estonia. Estonia is too small of a country to be able to successfully hide from these criminals.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes
See above.
In addition, I believe I would be subjected to physical violence, torture, possible kidnapping and mostly to be forced to become a drug mule by local criminals. I have this belief as there was another police informant who was captured by the criminals and forced to be a drug mule. He was captured and sentenced to 7 years imprisonment in [Country 1].
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No. I don't believe that the police would be able to protect me as I was a anonymous informant and was wearing hidden microphone to help capture the criminals and save a child's life. In the end it wasn't anonymous, and my name was put out into the public via the news papers. I don't believe that the police would protect me as they were not even able to maintain my anonymity and therefore in such a small country, they would not be able to protect me at all.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No. As above, Estonia is too small of a country to be able to successfully relocate and hide from the criminals. It may or may not be possible for myself to hide in another country, however I have family here who are Australian citizens and they only have limited time they would be able to stay in a country that I may be able to relocate to and would not be a suitable environment to successfully hide with my Australian citizen family.
23.The delegate summarised the applicant’s claims as follows:
· He was born in [Village 1], Harjumaa, Estonia.
· He is a citizen of Estonia. Estonia is one of the countries of the European Union (EU), and thus the applicant has a right to enter any one of the EU countries.
· He departed Estonia legally from Tallinn [in] October 2009. He used the passport in his claimed identity. The document has been lost since he arrived in Australia.
· He arrived in Australia [later in] October 2009.
· He has never applied for protection in any other country than Australia.
· He has a criminal history in Estonia dating back to 2000. A translation of his Estonian penal certificate indicates he served a cumulative period of approximately 2.5 years imprisonment for a range of offences.
· He has been in a de facto relationship with an Australian citizen since 24 August 2019.
· He has an Australian citizen child born in [year].
· He was an anonymous police informant in Estonia. He was wearing a hidden microphone to help capture the criminals and save a child's life.
· He assisted in arresting some criminals who subsequently faced three to twelve years imprisonment.
· The police did not protect his anonymity, and his name was in the newspapers.
· Local people told him that the criminals came to the place where his mother lives in early 2009.
· He cannot hide in Estonia. It is a small country where everyone knows everyone.
· He does not trust the police and authorities in Estonia could protect him from harm. He fears if he seeks help from them, things will get worse.
· He left Estonia before he was able to experience harm.
· He came to Australia for a holiday/travel and to get away from Estonia. He did not intend to stay for long, but eventually, he established his existence in Australia. If he were to relocate to another country, he would be separated from his family, particularly from his Australian citizen son. He fears if his family follows him overseas, the criminal he fears will harm his family.
· He fears he will be kidnapped, physically harmed, and tortured by the criminals he helped to get arrested if he returns.
· He fears that the criminals would force him to be a drug mule. There was another police informant who they forced to transport drugs to [Country 1], where he was arrested and imprisoned.”
Applicant’s supporting documentation
24.The applicant provided the following material to the Department:
·Australian Federal Police Clearance Certificate issued 11 December 2011[14]
·Application for IVO Order to be revoked dated 31 December 2021[15]
·Court Order – Discharged IVO Breach dated 14 January 2022[16]
·Attachment to Form 866 listing family composition, travel history, address history, employment history and education history[17]
·Overseas police clearance listing applicant’s offences in Estonia[18]
·Form 956 Appointment of Registered Migration Agent, Legal Practitioner or Exempt Person[19]
·Black and white photocopy of biodata page of applicant’s passport[20]
·Cover letter from representative dated 31 January 2022[21]
[14] Department File [number], TRIM Reference [number]
[15] Department File [number], TRIM Reference [number]
[16] Department File [number], TRIM Reference [number]
[17] Department File [number], TRIM Reference [number]
[18] Department File [number], TRIM Reference [number]
[19] Department File [number], TRIM Reference [number]
[20] Department File [number], TRIM Reference [number]
[21] Department File [number], TRIM Reference [number]
25.The applicant also submitted the following material to the Tribunal:
·Copy of Department Notification Letter and Decision Record dated 23 February 2022[22]
[22] Tribunal File 2202420, Doc ID 9469732 and 9469733
·Prehearing submissions[23] received 16 May 2022, including:
[23] Tribunal File 2202420, Doc ID 9772841
·Legal Submissions addressing Protection Claims dated 16 May 2022.
·Legal Submissions addressing Ministerial Intervention Request dated 16 May 2022, together with cover letter addressed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
·Statutory Declaration signed by the applicant and unwitnessed due to the applicant being in immigration detention
·Newspaper article and English Translation (in support of protection claims) [News Item 1] which appeared [online] [date] April 2009
·Character reference from [Ms A], the applicant’s partner, dated 2 January 2022
·Character reference from [Mr D], the applicant’s friend, dated 2 January 2022
·Character reference from [name], Community Coach – [community sport organisation], dated 2 March 2018
·Character reference from [Mr E], CEO of [name] and the applicant’s former employer, undated
·Letter from [Mr F], Accredited Mental Health Social Worker dated 15 December 2021
·Character reference from [Ms G], the applicant’s friend, dated 30 December 2021
·Character reference from [name] of [Employer 1], the applicant’s former employer dated 23 January 2017
·Character reference from [name], Housing Support Worker dated 31 July 2015
·Letter of Attendance from [City 1] Community Health dated 9 November 2015
·Evidence of Discharge – Contra-Fam Violence Interim Intervention Order dated 14 January 2022
·Evidence of Application to the Court to have the Intervention Order Revoked dated 31 December 2021
·Evidence of previous bridging visa grants under section 195A of the Migration Act 1958 between 2014 to 2019
·Australian Federal Police Clearance Certificate issued 11 December 2021
26.On 3 June 2022 the applicant provided further submissions[24] to the Tribunal together with copies of newspaper articles in relation to [Criminal Incident 1] which the Tribunal has read and considered. The articles provided by the applicant are:
[24] Letter WLW migration Lawyers dated 3 June 2022; [News Item 2] [date] January 2008
·[News Item 2] [date] January 2008
·[News Item 3]
·[News Item 4] dated [date] September 2008.
·[News Item 5] [date] March 2008.
·[News Item 6] [date] March 2008
·[News Item 7] [date] April 2009
·[News Item 8] [date] April 2009.
·[News Item 9] dated [date] May 2009.
·[News Item 10] dated [date] May 2009.
·[News Item 11] Dated [date] June 2009
·[News Item 12] dated [date] June 2009 by [name].
Delay
27.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[25] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[26]
[25] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[26] Subramanium v MIMA (1998) VG310 of 1997.
28.In this case the applicant arrived [date] October 2009 but did not make any application for a protection visa until 15 September 2015 which he withdrew on 19 January 2017. The applicant became unlawful on 20 September 2020 and on 11 November 2021 he was detained under section 189 of the Act. He applied for a further protection visa on 21 January 2022, more that twelve years after his first arrival in Australia.
29.The Tribunal notes that the circumstances by which he claims to fear persecution were already in existence at the time of his departure for Australia. The applicant did not provide any reasonable explanation for the delay in his application for protection. Nevertheless, it was his evidence to the Tribunal that he had not applied for protection because he had a working visa and had been able obtain visas from the Minister. He claimed that he had simply not got around to making for a protection visa.
30.However, in circumstances where the applicant claims to have a well-founded fear of persecution because of his involvement in [Criminal Incident 1] prior to his departure from his country it is reasonable to expect the applicant to have claimed protection upon his arrival in Australia. Given the nature of his claims it is reasonable to expect that he would have been aware of his ability to seek asylum upon his arrival in Australia. Instead of making a protection claim, the applicant initially relied on a working visa and a serious of bridging visa granted by the Minister for the purposes of remining in Australia. Despite having applied for a protection visa in September 2015 the applicant became unlawful in September 2020.
31.Therefore, based on the applicants’ delay in making his application for protection, the Tribunal, on an objective basis, has reservations about the genuineness and depth of the applicants’ fear of persecution[27] as claimed. Given the extensive delay of approximately six years before making his first application for protection and approximately a further six years and three months until his second application for protection (a total of over twelve years and nine months from the date of his in Australia) until the time of making his application for a protection visa, the Tribunal has placed little weight on the applicant’s evidence in relation to each of his claims.
[27] Subramanium v MIMA (1998) VG310 of 1997.
Applicant’s evidence.
32.The applicant’s evidence was that was born on [date] in [Village 1], Harjumaa, Estonia. He speaks read and writes Estonian and English.[28] The applicant evidence was that he did not know his natural father having met him on only a few occasions. He was not able to say where his father lived or if he had passed away. The applicant’s evidence was that his mother is a retired [occupation] and that she continues to live in Estonia. The applicant has a brother who lives in [Country 2] and a sister who continues to live in Estonia. His evidence was that he has not had any contact with either of them for some time.
[28] Applicant’s Application for a Protection Visa dated 31 January 2022
33.The applicant completed high school in Estonia in [year] having attended [School 1] in [Village 2], Estonia. His evidence was that after school he worked in several different jobs principally in the construction industry. From 2000 to 2003 the applicant was charged and convicted of several minor offences in Estonia.[29] These included [specified offences]. The applicant’s evidence was that in or about 2008 he had a motorbike accident in which he was severely injured. As a result, of the accident he was forced to return home to live with his mother to recover. His evidence was that because of the accident he became restless and wanted to ‘get away.’ As a result of a conversation with a friend he applied for a working holiday visa and travelled to Australia in October 2009.
[29] [file number]
34.The applicant’s evidence was that upon his arrival in Australia he worked several jobs around the country. These included working [at specified jobs]. In or about 2010 the applicant was charged and convicted of several minor offences in [City 3], Western Australia. The offences included [specified]. In addition, in 2011 the applicant was charged and convicted of have having a blood alcohol level above the legal limit.[30]
[30] National Police Certificate, Australia Federal Police Criminal records dated 11 December 2021
35.In or about 2012 the applicant was in a relationship with his former partner [Ms H]. As a result of this relationship the applicant has a son, [Mr B] born on [date]. The applicant and [Ms H] separated in 2016 and are no longer in a relationship.[31] The applicant has been in a de facto relationship with [Ms A] for approximately three (3) years. As a result of his relationship with [Ms A] he has a stepson, [Mr C] born on [date]. The applicant’s evidence is that he is very involved with [Ms A]’s family and that he has developed a close relationship with [Mr C], having become his father figure.[32]
[31] Applicant’s affidavit 16 May 2022 at [11]
[32] Applicant’s affidavit 16 May 2022 at [5]
36.In or about July 2021 [Ms H] lodged an intervention order against the applicant and he was charged with an alleged breach of this order. The applicant has previously sought Ministerial Intervention under s.195A of the Act a result of which the Minister has granted the applicant bridging visas on 11 February 2016, 23 March 29017, 10 May 2018, and 19 September 2019. As a result of the applicant being charged with the intervention order, the applicant’s further request for Ministerial Intervention was refused on 23 September 2021. The applicant was placed in immigration detention where he remains.
37.The applicant contends that the allegation against him regarding the family violence was false and that the charge against him is also false. The applicant’s evidence was that he was charged with breaching the order because he contacted Child and Family Services (CAFS) to see if he could arrange a visit with his son [Mr B]. CAFS contacted [Ms H] directly and as a result [Ms H] caused the applicant to be charged with breaching the order.[33] Despite being in detention the applicant has contested the charges and has successfully obtained a diversion with the outstanding charge being dropped.[34] In addition, the applicant has been granted leave by the Court to file an application to have the intervention order against him revoked to allow access to his son, [Mr B]. The applicant attended a direction hearing on 17 March 2022. The next direction hearing is listed for 8 June 2022. The applicant has engaged a solicitor to assist with a proposed family court arrangement that is to allow access to his son. In such circumstances the applicant submits that the basis upon which the applicant was denied Ministerial Intervention no longer exists. The Tribunal accepts that this is the case.
[33] Applicant’s affidavit 16 May 2022 at [16]
[34] Applicant’s submissions, Letter Williamson Leske Wardlaw Pty Ltd dated 16 May 2022 at [E]; Applicant’s affidavit 16 May 2022 at [17]
38.The applicant claims that he will be seriously or significantly harmed if he is returned to Estonia by criminal syndicates due to him having assisted the authorities to prevent [Criminal Incident 1]. The applicant’s evidence was that in or about 2007 he was approached by a friend (who the applicant knew by his nickname [Mr I]) about a plan to [commit Criminal Incident 1]. The applicant was invited by [Mr I] to meet the people responsible for the plan. The applicant did not recall the names of the people responsible for the plan. In addition, he was not able to tell the Tribunal [key details of the plan] or how much money he was to receive for his involvement in the plan. Nevertheless, his evidence was that he did not want to be involved with the plan and as a result informed the security manager at [location], Estonia about the [plan].[35] The security manager contacted the police who approached the applicant about becoming a police informant. The applicant stated that at the request of the police he attended a couple of meeting with the criminals. His evidence was that he attended one meeting at a [store] in Tallinn with [Mr I] and two other people, whose names he could not recall, to discuss the [plan]. His evidence was that at one of the meetings the police came and arrested the criminals.[36] His evidence was they were convicted and sent to jail. The applicant claims that because of his actions in assisting the police he will be seriously or significantly harmed upon returned to Estonia by members of the criminal syndicate responsible for the plan. His evidence was that his friend [Mr I] was forced to run drugs to [Country 1] by the criminal gang upon which he was arrested and sent prison for nine (9) years.
[35] Applicant’s affidavit 16 May 2022 at [22]
[36] Applicant’s affidavit 16 May 2022 at [23]
39.The applicant claims that when he was in Estonia, he had a motorcycle accident in which he was seriously injured. As a result, he spent an extended period in hospital. The applicant claims that because he was already significantly injured, he was not harmed when he was in Estonia. Nevertheless, because he feared being harmed, he left Estonia upon his recovery.[37]
[37] Applicant’s affidavit 16 May 2022 at [23]
Evidence of [Ms A]
40.In addition to her oral evidence [Ms A] provided a statement to the Tribunal dated 2 January 2022. Her evidence was consistent with the applicants in that they have been in a relationship for approximately three (3) years. She separated for her husband in 2015 and has a [age]-year-old son, [Mr C] from her previous marriage. [Ms A] stated that the applicant has become very involved with her family having spent time together including regular camping trips. The applicant is a good father to his son [Mr B] and has acted as father figure to [Mr C]. [Mr B] and [Mr C] got along well when [Mr B] has visited the applicant in [City 2]. The applicant has been attentive and caring to both children. Her evidence that if the applicant was returned to Estonia it would have a devastating effect on her and her family including her son [Mr C]. In addition, her evidence was that it would have a significant effect on the applicant and his son [Mr B] if he was removed for Australia. The Tribunal accepts [Ms A]’s evidence in relation to her relationship with the applicant and the effect it would have on her and the applicant’s family if he was removed to from Australia.
COUNTRY INFORAMTION
41.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 (the Department), 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.
42.There is no Country Information Report on Estonia prepared by DFAT for protection status determination purposes, therefore, the Tribunal has referred to the following supplementary information and notes:
·DFAT Estonia Country Brief[38]
·OHCHR Universal Periodic Review – Estonia[39]
·Country of Origin Information Services Section (COISS) Q & A Report: Estonia 20200831104634 – State protection – Organised crime (23 September 2020).[40]
[38]
[40] Country of Origin Information Services Section (COISS) Q & A Report: Estonia 20200831104634 – State protection – Organised crime (23 September 2020https://aatgovau.sharepoint.com/sites/CountryPortals/Country%20Portal%20Indexes/2020/EST%E2%80%9320200831104634.pdf
CONSIDERATION OF CLAIMS AND EVIDENCE
43.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.
Credibility
44.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 will 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.
45.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 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,[41] nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[42]
[41] s 5AAA Migration Act 1958.
[42] 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.
46.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[43] Care must be taken that the approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[43] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p.482
47.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[44] 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.
The accepted facts
[44] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
48.Having considered the applicant’s evidence, the Tribunal accepts and finds that the applicant:
(a)was born in on [date] in [Village 1], Harjumaa, Estonia.
(b)speaks read and writes Estonian and English.[45]
(c)did not know his natural father having met him on only a few occasions and does not know where he lives.
(d)has a mother and sister who continue to live in Estonia and a brother who lives in [Country 2].
(e)completed high school at [School 1] in [Village 2], Estonia in [year].
(f)worked in several different jobs principally in the construction industry in Estonia.
(g)was charged and convicted of several minor offences in Estonia.[46]
(h)had a motorbike accident prior to traveling to Australia in which he was seriously injured as claimed.
(i)was in relationship with [Ms H] from 2012 to 2016.
(j)has a son, with [Ms H], [Mr B] born on [date].
(k)has been in a relationship with [Ms A] for approximately three (3) years. [Ms A] has a son with whom the applicant has a relationship.
[45] Applicant’s Application for a Protection Visa dated 31 January 2022
[46] [file number]
The Applicant as a Refugee
The applicant as an informant to the authorities
49.The applicant claims[47] that if he was to return to Estonia there is a real chance, he will be seriously harmed by members of criminal gangs that were involved in the plan to [commit Criminal Incident 1]. The applicant submits[48] that his claims fall within the scope of s 5J(1)(a) of the Act as a member of a particular social group (PSG) based on him being a person who:
·has been an informant of the authorities; and/or
·has provided sensitive information to the authorities against criminal gangs.
[47] Applicants’ submissions dated 3 June 2022 at p.7; AAT File No 2202420, Doc ID 9839556
[48] Applicant’s submissions, Letter Williamson Leske Wardlaw Pty Ltd dated 16 May 2022 at [C].
50.Section 5L of the Act[49] stipulates that an applicant will be treated as being a member of a particular social group if:
(a)The applicant has a characteristic that is shared by each member of the group; and
(b)The applicant shares or is perceived as sharing the characteristic; and
(c)If 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 applicant should not be forced to renounce it.
(iii) the characteristic distinguishes the group from society.
[49] In Applicant A (1997) 190 CLR 225 re: Dawson J.
51.The Tribunal has some reservation as to whether the applicant is a member of a PSG for the reasons claimed. Pursuant to s.5L a member of the PSG must have a characteristic that is innate or immutable. That is, a characteristic that is part of one’s inner nature[50] or a physical attribute that is perceived as being unchangeable.[51] It is difficult to attribute to the fact that a person who was an informant or provided sensitive information to the authorities as claimed as being innate or immutable characteristic. In addition, the Tribunal has some doubt that the giving of information to the authorities as claimed can be described as a ‘characteristic so fundamental to the person’s identity or consciousness’ as required under s5L of the Act.
[50] Merriam Webster https//: Encyclo.Co.UK; https//: addition, s.5J(4)(a) of the Act requires the applicant’s membership of the PSG must be essential and significant reason for his fear of being persecuted. The applicant’s submission[52] to the Tribunal states that he will be seriously harmed because he had been an informant for the authorities and that he provided sensitive information to the authorities against criminal gangs. However, his evidence was that he feared being seriously harmed if he is returned to Estonia because he provided information to the authorities that resulted in those involved in the planned [crime] being charged and convicted. Therefore, on the applicant’s own evidence, the criminals are not interested in other informants, that is other individuals who have given information against criminal gangs but rather the applicant because he provided information that led to their arrest and conviction. Therefore, the Tribunal has some doubt that the applicant’s membership of the PSG is an informer against criminal gangs as it is not the essential and significant reason for his fear of persecution pursuant to s.5J(4)(a) of the Act.
[52] Applicant’s submissions, Letter Williamson Leske Wardlaw Pty Ltd dated 16 May 2022 at [C].
53.Nevertheless, the applicant’s evidence was that he would be seriously harmed by those involved in the planned [crime] because of his role as an informant. Pursuant to section 5L(c)(iii) of the Act, it is necessary for the Tribunal to consider if the characteristic distinguishes the PSG from society. In this case, the essential and significant reason for his fear of persecution is because of having been an informer against those involved in the crime. The Tribunal accepts that the applicant as an informant in relation to [Criminal Incident 1] could have a characteristic that would distinguish him and the group from the rest of society. Therefore, the Tribunal does accept that the applicant is a member of a PSG as claimed.
The applicant as an informant
54.The applicant claims there is a real chance he will be seriously harmed if he is returned to Estonia by criminal syndicates due to him having assisted the authorities to prevent [Criminal Incident 1], A newspaper article[53] (together with an English translation)[54] provided by the applicant refers to a plan to [commit Criminal Incident 1]. The article states that [Mr J] was the mastermind of the plan and had recruited [Mr K] and [Mr L] offering them the amount of [amount] kroons and [amount] kroons respectively. The article refers to [Mr J] finding the applicant and offered him [amount] kroons (approximately AUD$[amount])[55] for his involvement in the plan. The article states that the applicant notified the police about the plan which led [to] the trio being caught. Its states that the applicant went along with the plan with the court’s permission. It seems unusual to the Tribunal that the newspaper article refers to the applicant by name as having contacted and assisted the police. The Tribunal can only assume that his identity as an informer was revealed at the time of their arrest. In such circumstance, it seems to the Tribunal that the authorities did not believe there was any real chance of the applicant being seriously harmed for the newspaper to have published his name.
[53] [News Item 1]
[54] AAT file No 2202420 Doc Id: 9772841
[55] [Deleted]
55.An [article] refers to the Estonian Public Prosecutor's Office having charged three young men, [Mr J], [Mr K], and [Mr L], with [details of the criminal plot]. It’s reported[56] that they each received prison sentences of around [number] years for their [involvement].
[56] [Deleted]
56.[Deleted][57].
[57] [Deleted]
57.Despite having provided the newspaper article to the Tribunal prior to the hearing, the applicant’s evidence in relation to the [plan] and his involvement in it was vague and lacking in any detail. The applicant’s evidence was that he was invited to meet one of the people responsible for the plan by a friend known to him as [Mr I]. Despite the names of the offenders being provided in the newspaper article, the applicant was not able to recall the names of those involved in the plan. In addition, he was not able to tell the Tribunal [key details] or how much money he was to receive for his involvement in the plan despite the details being referred to in the in the newspaper article provided.
58.The applicant’s evidence was that he did not want to be involved with the plan and as such informed the security manager at [location] about the proposed [Criminal Incident 1]. The security manager contacted the police who approached the applicant about becoming a police informant. The applicant stated that at the request of the police he attended a couple of meeting with the criminals. His evidence was that he attended one meeting at a [store] in Tallinn to discuss the [plan]. Save for the fact that he said [Mr I] attend that meeting he was not able to tell the Tribunal the names of the people who attended the meeting. His evidence was that at one of the meetings the police came and arrested the criminals[58] and that they were convicted and sent to prison.
[58] Applicant’s affidavit 16 May 2022 at [23]
59.The Tribunal notes that the applicant’s evidence was different to the details provided in the newspaper article. The newspaper article refers to the applicant being provided with [equipment] by [Mr J] outside the [store] in [Tallinn]. In addition, it refers to the applicant meeting [Mr J] at [location], and being given [further equipment]. The applicant made no reference to these meetings or of him receiving the [equipment] as reported.
60.Given the vague nature and lack of detail in the applicant’s evidence together with the inconsistencies between his evidence and the details provided in the of the newspaper articles, the Tribunal has considerable doubts about the applicant’s claims. Nevertheless, based on the newspaper’s articles provided to the Tribunal, it accepts that applicant did act as an informer to the authorities’ concerning [Criminal Incident 1] as claimed.
61.The applicant claims that because of his actions in assisting the police he will be seriously harmed upon return to Estonia by members of the criminal syndicate responsible for the plan, including being forced to perform illegal activities for the crime syndicate and as a result will be killed if he refused to cooperate.[59] However, the newspaper report provided by the applicant described those responsible believing they were on a romantic adventure. The article[60] refers to the fact that those arrested where not aware it was a serious crime, and they had not fully comprehended how serious the crime was. The fact that the newspaper article reports[61] that those involved searched for accomplices to the plan via newspaper advertisements[62] and allowed the applicant, a person unknown to them, to become involved in such a dangerous and daring plan after only one or two meetings indicates to the Tribunal that they were acting alone and not as part of any criminal organisation.
[59] Applicant’s affidavit 16 May 2022 at [19]
[60] [News Item 1].
[61] ibid
[62] ibid
62.The country information[63] states that there have been no incidents of violent crimes associated with organised crime groups reported in Estonia. Nevertheless, it is suggested that a small number of organised crime groups involved in drug trafficking and potential violent crime do operate in Estonia.[64] Estonia’s strategic location between eastern and western Europe makes it a ‘targeted transit country for crime groups smuggling illicit merchandise between those markets.’[65]Interpol notes that Estonia’s transnational crimes include the trafficking of drugs, people and weapons, the presence of which bring associate crimes such as violent crime and money laundering.[66]
[63] Country of Origin Information Services Section (COISS) Q & A Report: Estonia 20200831104634 – State protection – Organised crime (23 September 2020https://aatgovau.sharepoint.com/sites/CountryPortals/Country%20Portal%20Indexes/2020/EST%E2%80%9320200831104634.pdf
[64] Ibid; The Baltic Times; Prosecutors Office: Estonia’s criminal world still without leader 27 April 2020 Overseas Security Agency Council ‘Estonia 2020 Crime & Safety Report’ 1 May 2020 20200918101611
[65] Interpol-Estonia: ‘How INTERPOL supports Estonia to tackle international crime’ Ibid; Country of Origin Information Services Section (COISS) Q & A Report: Estonia 20200831104634 – State protection – Organised crime (23 September 2020https://aatgovau.sharepoint.com/sites/CountryPortals/Country%20Portal%20Indexes/2020/EST%E2%80%9320200831104634.pdf
63.In this case the Tribunal does not accept that an organised criminal gang would recruit accomplices via newspaper advertisements, as reported, or even allow a person outside of their group or gang (such as the applicant) to become involved in such a dangerous and risky criminal endeavour [as Criminal Incident 1]. There is no report in the newspaper articles provided by the applicant that those convicted of the attempted [crime] were part of a criminal gang. Therefore, based on the applicant’s own evidence and the information contained in the newspaper articles provided by the applicant, the Tribunal does not accept that those involved in the plan were part of a criminal syndicate or gang as claimed. Rather, the Tribunal finds that those charged and convicted of the attempted [crime] were individuals acting alone. As a result, the Tribunal does not accept that there is any real chance the applicant will be seriously harmed, including being forced to transport drugs as claimed if he is returned to Estonia by members of a criminal syndicate or gang as claimed. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by criminal syndicates or gangs pursuant to s.36(2)(aa) of the Act if he is returned to Estonian.
64.Nevertheless, it is possible, having acted as an informer for the authorities that the applicant fears he will be harmed by those individuals who were charged and convicted [in relation to Criminal Incident 1]. The applicant claims that the population of Estonian is small and as a result there is a real chance, he will be harmed by those who were charged and convicted as a result of him acting as an informer for the police.
65.The country information reports that Estonia is a developed country, with a high-income advanced economy.[67] Estonia is a democratic unitary parliamentary republic, which is divided into15 counties (maakond). It has population of just over 1.3 million making it one of the least populated members of the European Union. Estonia has a high in international rankings for quality of life,[68] education,[69] press freedom,[70] digitalisation of public services and the prevalence of technology.[71] Having considered the available country information the Tribunal accepts the applicants submission that the population of Estonia is relatively small and as such there is a real risk he will be harmed by the individuals involved in the [incident] upon his returned to Estonian.
[67] Human Development Report 2020 Estonia ‘The Next Frontier: Human Development and the Anthropocene’; http//:hdr.undp.org/sites/default/files/Country-Profiles/EST.pdf
[68] Estonia (Ranked 21st)". Legatum Prosperity Index 2020; BBC, ‘Pisa Rankings: Why Estonian pupils shine in global tests’, 2 December 2019 E-Estonian, Estonian among top 3 in the Une-Government survey 2020; http//:e-estonia.com/estonia-top-3-in-un-e-government-survey-2020/
[71] Harold, Theresa 30 October 2017. "How A Former Soviet State Became One Of The World's Most Advanced Digital Nations" in circumstances where the Tribunal has accepted that there is a real chance of serious harm to the applicant by those charged and convicted of the attempted [crime] then under s.5J(2) of the Act, the applicant does not have a well-found fear of persecution as effective protection measures are available to the applicant in Estonia.[72] The effect of this qualification is, despite there being a real chance of persecution, the applicant does not have a well-founded fear of persecution for the purposes of the Act because protection measures are available to him. The authorities in Estonia are not required to guarantee the safety of the applicant from harm caused by non-state persons.[73]
[72] Section 5J(2) of the Act.
[73] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].
67.In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ in considering State protection under the Convention observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[74] That is, where the protection from private harm is adequate, the harm cannot be characterised as persecution.[75] The obligation of the state is to take ‘reasonable measures’[76] to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[77] or a ‘reasonably effective police force and a reasonably impartial system of justice.’[78]
[74] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]; also see MIMA v Respondents S152/2003 (2004) 222 CLR 1 per Kirby J at [19], [63], [109]
[75] ibid
[76] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117]
[77] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26
[78] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28]
68.The county information[79] reports that Estonia has two government security agencies, the Estonian Police and Border Guard that serve as the first response police force. They investigate all levels of criminal activity, provide border security, and issue identity documents. The Estonian Security Police (KAPO) operates on a federal level to fight corruption, terrorism, and threats to national security. The army is responsible for external security, but also has some domestic security responsibilities.
[79] OSAC, ‘Estonia Security Report’ dated 18 October 2021 Police and Border Guard Board and the Internal Security Service report to the Interior Ministry. Civilian authorities maintain effective control over the security forces. Police Response Police response times can vary from several minutes to an hour, depending on the nature of the call, time of day, call volume, and resource constraints. However, it is reported that any delay in response time does not reflect a lack of professionalism or competence on the part of local authorities.[80] Police agencies are professionally trained and competent, and officers very commonly speak English. Police have become more respected and better trained in recent years but continue to deal with a lack of resources. Recent initiatives have resulted in increased wages, aiding recruitment and retention of police officers.[81] However, this was offset by a reduction in overall staffing levels. To respond to the needs of visitors, police concentrate vehicular and foot patrols in highly populated and popular tourist areas.[82]
[80] ibid
[81] ibid
[82] ibid
70.The Estonian constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.[83] It is reported that defendants enjoy the right to a presumption of innocence, prompt and detailed notification of the charges, a fair and public trial without undue delay. In addition, defendants are able to communicate with an attorney of their choice and are provided adequate time and facilities to prepare a defence.[84] A single judge, a judge together with public assessors, or a committee of judges may hear cases. In criminal proceedings, an attorney is available to all defendants at public expense, although individuals often prefer to hire their own attorneys. In civil proceedings, the government provides an attorney for indigents. Authorities generally respected these rights and extended them to all residents regardless of citizenship.[85]
[83] U.S. Department of State, 2020 Country Reports on Human Rights Practices: Estonia ibid
[85] ibid
71.Therefore, having considered the country information and the circumstances of the applicant where the Tribunal has accepted there is a real chance of him being seriously harmed by those involved in the [plan], the Tribunal finds that the level of protection from the state and other authorities available to the applicant, if removed from Australia to anywhere within Estonia, would remove the real chance of him being seriously harmed as claimed. That is, based on the available country information the Tribunal finds that the Estonian police and KAPO will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied and finds that the applicant could obtain, from an authority of Estonia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.5J(2) of the Act the applicant the Tribunal finds that the applicant does not have a well-found fear of persecution due to the fact that effective protection measures are available to the applicant in Estonia from those individuals charged and convicted of attempting [Criminal Incident 1].
Applicant’s Mental Health
72.The applicant claims that he has struggled with mental health issues.[86] The applicant claims that if he is returned to Estonia, there is a real chance he will be seriously harmed by reason of his mental health condition. As previously noted, the applicant was lucid and cognisant throughout the hearing and was able to give evidence and respond meaningfully to the Tribunal’s questions.
[86] Applicant’s affidavit 16 May 2022 at [30]
73.The applicant did not provide a medical a report in relation to his mental health. Nevertheless, in his affidavit the applicant stated that when he was in detention approximately 10 years ago, he consulted a psychologist regularly.[87] His evidence was that his mental health deteriorated when he was living with [Ms H] and suffered some setbacks because of the intervention order being taken out against him by [Ms H].[88] The applicant’s evidence was that he has received help from his family and friends. In addition, he claims that while currently in detention he has consulted a new psychologist which has helped him deal with being separated for his son and [Ms A].[89] While the applicant did not provide the Tribunal with any formal report or diagnosis in relation to his mental health, based on his own evidence, the Tribunal accepts that he has ‘struggled’ with his mental health as claimed.
[87] Applicant’s affidavit 16 May 2022 at [31]
[88] Applicant’s affidavit 16 May 2022 at [31]-[32]
[89] Applicant’s affidavit 16 May 2022 at [33]
74.It was open to the applicant to claim that if he is returned to Estonia, he will be seriously harmed because of his mental health condition. The Tribunal accepts that a person’s mental health is an innate or immutable characteristic, fundamental to that person’s identity or consciousness. As a result, the Tribunal finds that the applicant does fall within the scope of s 5J(1)(a) of the Act as a member of a particular social group (PSG) based due to his mental health.
75.The country information[90] reports that Estonian health system is funded via a national social insurance scheme under which medical institutions are reimbursed for treatments provided to all patients. It’s reported that the Estonian society has a strong mandate to pursue better mental health for its citizens and that it is within the strategic goals of Estonia to pursue healthy behaviour of its citizens.[91] The Estonian government, under the supervision of Commission of the European Communities, has made a valuable contribution to the European Green Paper (2005) entitled Improving the Mental Health of the Population. Towards a Strategy on Mental Health for the European Union. [92] In addition, Estonia has signed the Helsinki Declaration of the World Health Organization.
[90] National library of medicine July 2008 by Anne Klienberg Accelerate Estonia, ‘Mental health & Wellbeing’ http//:accelerateestonia.ee/mental-health/
[92] ibid
76.It’s reported that Estonia’s mental health services have improved considerably over the past ten to fifteen years. The system was previously modelled on the old Soviet model but has not changed to being centred on the patient and improving the clients’ quality of life.[93]
[93] ibid
77.Mental health is the responsibility of the Ministry of Social Affairs and is regulated by the Mental Health Act.[94] Under the Act, only those healthcare institutions, physicians and other specialists with appropriate licences may provide psychiatric care. Local governments must guarantee access to social services for people with mental disorders. The law also provides that to get psychiatric care the patient may turn directly to a specialist for out-patient consultation, that is, without referral from a family doctor. It’s reported that there is a likely wait of one or two months in obtaining an appointment with a psychologist.[95] All patients aged 18 an older who have valid insurance with the Estonian Health Insurance Fund, must pay an appointment fee of €5 at a psychiatry clinic.
[94] ibid
[95] Estonian World, ‘Mental health matters-where to turn for help in Estonia?’ 6 April 2021; reported[96] that psychiatric care is mainly provided on an out-patient basis in Estonia. In-patient psychiatric care is mainly used to help patients through a short-term crisis or for solving complex differential diagnostic and treatment problems. Hospital admission is resorted to only where a period of continuous monitoring is necessary for diagnosis, medical treatment or rehabilitation, or when patients are deemed to be a danger to themselves or others or are unable to cope without assistance outside hospital. In cases of severe mental disorder that restricts a person’s ability to understand or control their behaviour and where there is a risk to their safety and health, a patient may be admitted to the psychiatric department of a hospital for emergency psychiatric care or treated without their consent (or that of their legal representative).[97]
[96] National library of medicine July 2008 by Anne Klienberg ibid
79.Based on the available country information, the Tribunal accepts that health and mental health facilities in Estonia are under resourced. However pursuant to s.5J(4) of the Act it is necessary that a person fears of persecution on return to their country it must involve systematic and discriminatory conduct. Based on the country information the Tribunal is not satisfied that the government of Estonia would deny the applicant, as a citizen of the country, access to available mental health services or refuse him access to such services to the extent that it would amount to a deliberate act or omission on the part of the authorities. There was no suggestion in the country information, or any submission made by the applicant that he would be denied access to mental health care services to the same level as other Estonian citizens or that he would be specifically denied such mental health services upon his return to the country. As a result, the Tribunal finds that the Estonian government would not deny the applicant or other individuals in Estonian mental health treatment on a systematic and discriminatory basis as required under s.5J(4)(c) of the Act. As a result, the Tribunal finds that the applicant’s does not have a well-founded fear of persecution by reason of his mental condition as claimed by reason that it does not satisfy s.5J(4)(c) of the Act.
80.The Tribunal accepts that it is not possible to monitor whether the applicant would access mental health services in Estonia and that there is a risk that he will avoid accessing any such services. In the event if the applicant fails or refuses to access mental health services on his return, the Tribunal does not accept that the applicant possesses a well-founded fear of persecution because of his mental health condition. That is, any failure of the applicant to access mental health services in Estonia would not involve systematic and discriminatory conduct[98] and as such would not amount to a well-founded fear of persecution in the event he is returned to his country.
[98] Section 5J(4) of the Act
81.Having considered the applicant’s claim singularly and cumulatively, the Tribunal finds that applicant does not have a well-founded fear of persecution pursuant to s5J of the Act and as such finds that he is not a person to whom Australia owes protection obligations under s 36(2)(a) of the Act.
Applicant’s Complementary Protection Claim
82.The applicant claims that, without conceding in any way his claims under s 36(2)(a) of the Act, the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to Estonia based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[99] In addition the Tribunal has considered if there is any reason to believe the applicant will face a real risk of significant harm as contemplated by s 36(2)(aa).
[99] MIAC v SZQRB [2013] FCAFC 33.
83.The applicant claims that as a necessary and foreseeable consequence of the applicant being returned to Estonia there is a real risk, he will suffer significant harm. Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[100] Pursuant to s.36(2A) of the Act significant harm is defined as arbitrary deprivation of life, death penalty, torture cruel or inhuman treatment or punishment or degrading treatment or punishment.
[100] In MZZIA v MIBP [2014] FCCA 717 per Judge Riethmuller,16 April 2014 at [34]
Applicants’ Mental Health
84.The applicant claims that if he is returned to Estonia, he will be significantly harmed by reason of his mental health condition. As previously noted, the applicant was lucid and cognisant throughout the hearing and was able to give evidence and respond meaningfully to the Tribunal’s questions.
85.The Tribunal refers to and repeats the available country information in relation to the health services and mental health services in Estonia as referred to above in relation to the applicant’s mental health claim as a refugee. Based on the available country information and the applicant’s own evidence as referred to above in relation to his mental health, the Tribunal finds that the applicant will be able to access the necessary care and support in relation to physical medical condition and his mental health when appropriate. That is, he will be able to receive adequate treatment (e.g., counselling; psychotherapy and medication) for his condition.[101] Accordingly, for the reasons expressed above, the Tribunal finds that there is no real risk that he will suffer significant harm by reason of mental health if he returns to Estonia.
[101] Nationwide integration of mental health into primary care, applicant as an informant to the authorities
86.The applicant claims there is real risk he will be significantly harmed if he is returned to Estonia by criminal syndicates due to him having assisted the authorities to prevent [Criminal Incident 1]. The Tribunal has already found that there is no real chance the applicant will be seriously harmed, including being forced to transport drugs as claimed if he is returned to Estonia by members of a criminal syndicate or gang as claimed. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear.’ Therefore, based on the reasons the Tribunal found that there is no real chance the applicant would be seriously harmed by criminal syndicates or gang members in considering his refugee claims under s36(2)(a) of the Act, the Tribunal finds that there is no real risk the applicant will be significantly harmed by criminal syndicates or gangs pursuant to s.36(2)(aa) of the Act if he is returned to Estonia.
87.In addition, the applicant claims that because of him being an informer, he will be harmed by those individuals who were charged and convicted of attempting [Criminal Incident 1]. The Tribunal has accepted that because the the population of Estonian is small there is a real chance, he will be harmed by those who were charged and convicted of the [plan]. Therefore, as the real risk test is the same as the real chance test, the Tribunal accepts that there is a real risk the applicant will be significantly harmed by those charged and convicted of the [plan] as claimed.
88.However, in circumstances where the Tribunal has accepted that there is a real risk of significant harm to the applicant then under s.36(2B) of the Act, there is no real risk of significant harm if the applicant can ‘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’[102] To satisfy s.36(2B)(b)[103], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[104] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[105] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[102] s.36(2B)(b) of the Migration Act 1958
[103] MIAC v MZYYL (2012) 207 FCR 211
[104] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
[105] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).
89.The Tribunal refers to and repeats the country information relating to effective protection in Estonia in relation to his claim as a refugee. Having considered the country information and the circumstances of the applicant where the Tribunal has accepted there is a real risk of him being harmed by those involved in the [plan], the Tribunal finds that the level of protection from the state and other authorities available to the applicant, if removed from Australia to anywhere within Estonia would remove the real risk of significant harm. That is, the Tribunal finds that the Estonian police and KAPO will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Estonia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), the Tribunal finds that there is no there is no real risk that the applicant will suffer significant harm in Estonia and does not satisfy s.36(2)(aa) in this regard.
Estonia as Member of the European Union (EU).
90.The Tribunal has found that under section 5J(2) of the Act the applicant does not have a well-founded fear of persecution due to the fact that effective protection measures are available to the applicant in Estonia. In addition, the Tribunal has found that pursuant to s.36(2B)(b) effective protection will be available to the applicant is he is returned to Estonia.
91.Nevertheless, if the applicant was not able to obtain effective protection in Estonia (which the Tribunal has specifically found that he will) then the Tribunal is required to consider if the applicant has taken steps to aval himself of the right to enter any other third-party country. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in, either temporarily or permanently, any other country. That is, the Tribunal is required to consider if the applicant could obtain, from an authority of a third party country, protection such that there would not be a real risk that the non-citizen will suffer significant harm. The Tribunal notes that 36(3) of the Act is qualified by s.36(4) and s.36(5) of the Act in particular in circumstances where the applicant has a well-founded fear of persecution if returned to a third-party country.
92.Estonia has been a member of the European Union since 1 May 2004. It holds six seats in the European Parliament and has been a member country of the Schengen Area since December 21, 2007. The “Schengen Area” refer to an agreement between EU countries to abolish their international borders. The European Communities (Free Movement of Persons) Regulations 2015 provides that citizens of EU member states are citizens of the European Union and free to move around the countries of the EU and have the right to live in those other countries if they fulfil certain conditions.[106] There was no evidence that the applicant had taken steps to avail himself of any right to enter and reside in any other country apart from Estonia, specifically any other country that is a member of the EEC.
[106] on the country information the applicant would have the right to live and reside in another EU country such as France or Germany. The country information[107] reports that in the Federal Republic of Germany, the responsibility for the maintenance of public security and order is divided between the 16 federal states and the federation with the federal states generally being in charge. The only policing carried out on the federal level lies with the Federal Police (Bundespolizei, BPOL) and the Federal Criminal Police Office (Bundeskriminalamt, BKA). Additionally, two other federal agencies are involved in security matters - the Federal Intelligence Service (Bundesnachrichtendienst, BND)and the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz, BfV). TheGerman Police University (Deutsche Hochschule der Polizei) is the main educational institute for law enforcement in Germany.
[107] OSCE polis; http//: polis.osce.org/country-profiles/germany
94.It’s reported[108] German State Police Service prevents and prosecutes local crime and can be divided between the uniformed police and the investigation section. The uniformed forces patrol the streets, respond to emergency calls, serve as a point of contact for the citizens and as traffic and petty crime police for 24 hours a day throughout the year. The investigation sections, in general, are responsible for investigations in cases of crime.
[108] ibid
95.The German courts are largely specialized and fall into five categories being civil and criminal courts, labour courts, administrative courts, social courts, fiscal courts - state and federal. The Federal Constitutional Court (Bundesverfassungsgericht), which is the country’s supreme court, is separate from the five branches of jurisdiction.[109]
[109] ibid
96.The public prosecution offices are institutions of the administration of justice enjoying independence from the courts. The prosecution service is part of the judiciary, but not a court. Prosecutors are civil servants by status. The public prosecutors are, for the most part, concerned with criminal proceedings. It is their responsibility to establish the facts when a person is suspected of having committed a crime. They must decide whether to discontinue the proceedings or to indict the suspect. In court proceedings, they are the prosecuting counsels. Unlike judges, public prosecutors are civil servants.[110]
[110] ibid
97.Having considered the country information in relation to the Germany as an EU member and the circumstances of the applicant, the Tribunal finds that the applicant has a right to reside in Germany and that the authorities in Germany would provide a level of protection to the extent that would the real risk of significant harm if the applicant was removed for Australia. That is, the Tribunal finds that the German police will provide effective protection to the applicant from physical harm. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from the German authorities, as a EU member, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), the Tribunal finds that the applicant could obtain, from an authority in Germany, protection such that there would not be a real risk that the applicant will suffer significant harm.
98.In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, that there is a real risk that she will suffer significant harm of any kind.
99.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
100.Having considered his claim and accepted circumstances, both individually and cumulatively, 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 Estonia that there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).
101.In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa), there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, that there is a real risk that he will suffer significant harm of any kind.
102.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
Applicant’s claim for Ministerial Intervention
103.The applicant has submitted that his matter be referred to the Minister for intervention in this matter under s.351 of the Act on the basis that there are exceptional and compelling circumstances which justify the Ministers intervention.
104.The Tribunal has read and considered each of the following letters (letters of the support) provided in support of the applicant:
(a)[Ms A].
(b)[Mr D].
(c)[community sport organisation].
(d)[Mr E].
(e)[Mr F].
(f)[Ms G].
(g)[Employer 1] 2017.
(h)[community housing organisation] 2015.
(i)[City 1] Community Health 2015.
105.The letters of support refer to the applicant good character and to the fact that he has a partner, a son and a stepson who need his support. The Tribunal accepts the contents of each of the letters of support.
106.The applicant has previously sought ministerial intervention on several occasions under s.195A of the Act. His requests were granted with the Minister intervening to grant him bridging vias on 11 February 2016, 23 March 2017, 10 May 2018 and 19 September 2019. The Department, however, denied the applicant most recent requests for Ministerial Intervention on 20 September 2020. As a result, the applicant became unlawful and on 11 November 2021 was placed in immigration detention.
107.The applicant submits that that he has a [age]-year-old son who is an Australian citizen, a partner and a stepson who rely on his care and support. In addition, the applicant has close ties to the community which he wishes to resume. The Tribunal accepts the applicant’s submission that it is a benefit to the Australia community and that he does not represent a risk to the Australian community. Accordingly, the Tribunal does recommend that the Minister exercise his/her discretion to intervene in the applicant’s case pursuant to s.351 of the Act.
CONCLUSION
108.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 the Act for the reasons mentioned in s.5J(1). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
109.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).
110.There is no suggestion that the applicant satisfies s.36(2) based on 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
111.The Tribunal affirms the decision not to grant the applicants a protection visa
Jason Pennell
Senior MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Standing
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Remedies
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Citations2202420 (Refugee) [2022] AATA 2516
Cases Citing This Decision0
Cases Cited13
Statutory Material Cited0
Kavun v MIMA [2000] FCA 370MZZIA v MIBP [2014] FCCA 717Zhang v RRT & Anor [1997] FCA 423