2304919 (Refugee)

[2023] AATA 3064

2304919 (Refugee) [2023] AATA 3064 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2304919

COUNTRY OF REFERENCE:                   Samoa

MEMBER:David McCulloch

DATE:5 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2023 at 3:01pm

CATCHWORDS

REFUGEE – protection visa – Samoa – Men in Samoa who suffer Mental Health issues – focus of harm is separation from his family in Australia – applicant having no suicidal ideation – criminal history – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 April 2023 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 Samoa, applied for the visa on 3 March 2023. The applicant attended an interview with a delegate of the Department on 8 March 2023. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 16 June 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant’s migration history is extracted from the delegate’s Decision Record:

Date	Event details
26 October 2016	The applicant is granted a [visa] valid until 13 November 2016
[Date] October 2016	The applicant arrives in Australia
13 November 2016	The applicant’s [visa] ceases and the applicant is unlawful
17 July 2022	The applicant is remanded into criminal custody on charges relating to destroy or damage property, common assault, stalk/intimidate intend fear physical etc harm (personal), enter inclosed land not presc premises without lawful excuse, common assault (domestic violence)
19 July 2022	The applicant is released from criminal custody and transferred to Immigration Detention
26 July 2022	The applicant lodges an application for a Bridging Visa E
28 July 2022	The Bridging Visa E application is refused
1 August 2022	The applicant lodges an application for review of the Bridging Visa E refusal at the Administrative Appeals Tribunal (AAT)
1 August 2022	The applicant lodges a request for a Waiver of Condition 8503
3 August 2022	The Waiver request is refused
12 August 2022	The decision to refuse the applicant’s Bridging Visa E is affirmed by the AAT
19 August 2022	The applicant lodges a second request for a Waiver of Condition 8503
14 September 2022	The Waiver request is refused
1 December 2022	The applicant lodges a third request for a Waiver of Condition 8503
27 February 2023	The Waiver request is refused
March 2023	The applicant lodges an application for a Permanent Protection (XA 866) visa

1. The following information is apparent from the application for protection forms. The applicant was born on [date] in [Village 1], Samoa. The applicant is of Samoan ethnicity, whose religion is Christian. The applicant speaks, reads, and writes Samoan. The applicant has been in a de facto relationship with [Ms A] since 10 March 2017. The applicant’s partner is an Australian citizen and her family reside in Australia. The applicant has two stepchildren [Child 1] (aged [age]) and [Child 2] (aged [age]) who are both Australian citizens. The applicant’s parents and sister reside in Samoa. From January 2003 to January 2010 the applicant resided in [Village 2], Samoa. From January 2010 to October 2016, the applicant resided in [Village 3], Samoa. The applicant attended, but withdrew from primary school in [Village 2], Samoa from February 1993 to December 1998. The applicant was unemployed until March 2010. From March 2010 to May 2016, he worked as a [Occupation 1] in [Samoa]. From May 2016 to July 2022 the applicant worked as a [Occupation 2] [in] [suburb], New South Wales. From January 2020 to July 2022 the applicant was also working as a contractor [Occupation 2] for a [company]. At the time of his application, the applicant was employed.

2. The applicant provided the following responses on his application form as his claims for protection (not corrected for spelling or grammar):

   Provide reasons why this applicant left that country or those countries:

   I left Samoa in search of better economic opportunities in Australia. I wanted to expand on my employment experience, make a reasonable salary and be able to establish a better life for myself when I eventually returned to Samoa. My claims for protection simply arise from very recent events that have occurred to me since the refusal of my waiver applications. They relate to serious concerns I have for my mental health and inability to seek adequate treatment in Samoa for them given structural issues within the countries recognition and treatment of mental health. For these reasons I never experienced harm in Samoa prior to my arrival and had no need to relocate to another part of the country to seek safety.

   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

   Give details for why this applicant did not try to move to another part of the country or those countries.

   As noted above, my claims for protection only arose recently and for this reason I never needed to relocate prior to my arrival when I resided in Samoa.

   Explain what the applicant thinks will happen to them if they return to that country or those countries:

   I think that if I am forced to return to Samoa that I will be persecuted because I will belong to a social group which would be Men in Samoa who suffer Mental Health issues. I feel like we don't pay enough attention to mental health issues in Samoa, that is a fact. Away from the fact the Government is still trying to come to terms with how to sort out the mess that is the health system, when it comes to mental health, top of the list in terms of challenges is the lack of qualified manpower, resources and finances. One of the biggest barriers is dealing with old attitudes and mindsets that have become ingrain in our thinking. We live in a country where mental health issues are often linked to superstition, curses and even associated with wrongdoing. For a country whose population is nearing the 200,000 mark, the Ministry of Health's Mental Health Unit only has one fulltime Psychiatrist. Pacific people view mental illness as either inherited or caused by spiritual problems. From a Samoan perspective, mental unwellness is believed to be a result of disrespectful behaviour or breaching tapu and sa within relationships. The high number of Pacific admissions to the inpatient forensic hospital indicates a significant mental illness component in Pacific people in the criminal justice system. Pacific people have poor access to community mental health care, yet they have more admissions to acute inpatient services and utilize forensic services to a greater extent. Pacific people experiencing severe mental illness are often recognized after they have been convicted and sentenced, rather than being recognized earlier in the court process.

   Does this applicant think they will be harmed or mistreated if they return to that country or countries?

   Yes

   Give details:

   I really do believe that I will be harmed or mistreated. This will be a direct result of the lack of treatment available. According to a story titled "Demand for psychiatrists increasing" published on page 3 of yesterday's Samoa Observer, Tuifagatoa Dr. George Tuitama, deals with more than 500 recorded mental health cases. Now and then Tuifagatoa gets help from some visiting Psychiatrists from New Zealand and Australia but the bulk of the work is done by him and his small team. The facts are that there is a shortage of professional help available to deal with mental health issues. Tuifagatoa and his team already face an uphill battle, in terms of dealing with the cases that have been recorded and noted. The stigma of mental illness in Samoa is contributing to the country's stubbornly high suicide rate, an NGO says. "Men are more vulnerable. I think it stems from the macho attitude that our Samoan men have that they're invincible, that they can overcome anything," Problems in relationships are the leading causes of suicide in Samoa and I am truly worried that the extended separation between [Ms A] and I will only compound this problem and put me at a higher risk of self harm.

   Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

   No

   Give details about why this applicant thinks the authorities could not, or would not, protect them.

   Of course I do not believe that the authorities have the ability to protect me as it is the failure of the authorities and the government to provide adequate access to treatment or recognition for people in my situation that leads to my serious fears of being harmed in Samoa.

   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

   Give details about why this applicant is unable to relocate.

   Relocating within the country will serve absolutely no purpose as the studies have proven a lack of mental health treatment is something consistently found across the country and will not be reduced by relocating to a different region or town.

3. The applicant provided the following documents to the Department in support of his application for protection and subsequent bridging visa:

   a.A Certificate of Citizenship for the applicant’s partner, dated 7 July 2005.

   b.New South Wales Birth Certificate for [Child 1] (DOB: [date]), registered on 14 May 2014.

   c.New South Wales Birth Certificate for [Child 2] (DOB: [date]), registered on 26 September 2018.

   d.Court Order Notice for Local Court of NSW at [Suburb 1], [the applicant], for an order date of 5 October 2022.

   e.Application for Apprehended Violence Order dated 2 March 2023 for [Ms A] v [applicant].

   f.A scanned copy of [Ms A]’s NSW driver’s licence.

   g.A pay slip for [Ms A] for the pay period 30/01/2023 to 05/02/2023.

   h.A pay slip for [Ms A] for the pay period 06/02/2023 to 12/02/2023.

   i.A pay slip for [Ms A] for the pay period 13/02/2023 to 19/02/2023.

   j.A pay slip for [Ms A] for the pay period 20/02/2023 to 26/02/2023.

   k.A letter from [a] High School dated 9 November 2022 confirming [Child 1] attends the school.

   l.A letter of support dated 10 August 2022 from [Mr B]. The letter states that [Mr B] will finance the applicant’s Partner visa application and assist the applicant and his family financially should the need arise.

   m.A scanned copy of the applicant’s Samoan passport.

   n.Six photographs of the applicant and his stepdaughters.

   o.A psychology report for [Ms A] dated 1 December 2022 from [psychologist] of [named clinic]. The report documents [Ms A]’s mental health and the potential psychological impact on her if she were to be separated from the applicant. The report states that [Ms A] is presented with severe anxiety, stress and depression, with separating from the applicant being a stressor. It further states that the applicant is reportedly the main source of emotional, parenting and financial support for the family. The psychologist states that the removal of the applicant is likely to worsen [Ms A]’s mental state.

   p.A letter of support from [Ms A] to the Department dated 3 March 2023.

4. The Tribunal wrote to the applicant requesting that he provide reports from medical professionals outlining his mental health issues and treatment. A response was provided just before the Tribunal hearing being records of consultations with the provider International Health and Medical Services which, as clarified by applicant in hearing, were his medical consultations during his period in Immigration detention from 19 July 2022. The records provided indicate 39 consultations between 19 July 2022 and 8 June 2023.

5. Most relevantly is a psychiatrist review of 25 May 2023. It indicates that the applicant has no past psychiatric history or treatment in the community. It describes the applicant’s experience of his ongoing detention as stressful and reports declining mental health over the last six months. He is distressed at the ongoing separation from his family. He has experienced initial insomnia and describes loss of appetite. There has not been suicidal ideation. The applicant indicates that he makes an effort to walk and attend activities despite having little interest. The report describes his immigration history in Australia. The applicant states that does not want to return to Samoa because his parents have passed away and he no longer has contact with his siblings. His relationships are in Australia with his de facto partner and her two daughters.

6. The report indicates that the applicant engages well, does not demonstrate psychosis or suicidal ideation. His insight was reasonable and that he recognises that stress from detention has impacted on his mental health.

7. A report of a medical consultation on 30 May 2023 is provided which indicates that the applicant was polite and pleasant and alert and oriented as to time and place. The applicant indicates that his sleep is not good. He uses [medication] for his sleep.

8. A report of a consultation with the applicant on 13 April 2023 indicates the applicant reporting that ‘everything is okay nothing has changed’; a consultation on 30 March 2023 indicates the applicant presenting with detention fatigue syndrome being ‘stressed out’ and anxious around the uncertainty of his situation. Similarly, a consultation on 14 May 2023 indicates that the applicant is upset and distressed because of his visa situation. There are no reports of any significant mental health issues in any of the many prior consultations from the first consultation on 19 July 2022.

9. The applicant’s partner, [Ms A], contacted the Tribunal in advance of the hearing indicating that it was important that she gave evidence. The Tribunal raised this with the applicant in hearing noting that he has not nominated [Ms A] as a witness to give evidence at the hearing. The applicant indicated that he did not do so because there was an Apprehended Violence Order in place preventing him having contact with her.

10. The Tribunal indicated to the applicant that it would provide the opportunity following the hearing for [Ms A] to provide a statement to the Tribunal which should particularly address why the applicant faces requisite harm in Samoa for protection purposes. The Tribunal wrote to [Ms A] after hearing inviting her to provide a written statement addressing this issue.

11. [Ms A] provided a letter to the Tribunal dated 26 June 2023. [Ms A] refers to her and the applicant being in a healthy and happy relationship for six years. Reference is made to two children from a previous marriage who feel that the applicant is their father. It is indicated that the past 11 months without the applicant in the home has been an ‘absolute nightmare’. It has caused mental health difficulties for [Ms A] as well as economic difficulties. Difficulties have been compounded by having to find new rental accommodation. The children love the applicant and his absence has affected the family unit greatly. The applicant has no family in Samoa. The applicant would return to Samoa with nothing and the shame and humiliation of deportation. [Ms A] is concerned for the applicant’s health and well-being if returned to Samoa including that he may take his life.

12. It is acknowledged that the applicant will not face physical threats in Samoa but will face mental persecution. Reference to limitations in mental health treatment in Samoa are made. The applicant would be reluctant to utilise any services that are available.

1. [Ms A] provided at the same time to the Tribunal a psychologist report for her dated 1 December 2022 outlined above. The report includes [Ms A]’s description of an argument between her and the applicant which led to his arrest and being detained by Immigration. [Ms A] indicates that it was a verbal argument. [Ms A] was not abused in any way.  

   Hearing, credibility, findings and assessment

2. The mere fact that a person claims fear of persecution for a particular 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

3. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

4. The Tribunal is satisfied that the applicant is a citizen of Samoa and accordingly his claims will be assessed against Samoa.

5. The Tribunal went through with the applicant in the hearing its assessment as indicated above in paragraphs 15 to 19 in this decision in terms of the medical treatment he has received in Immigration detention, particularly relating to mental health issues.

6. The Tribunal put to the applicant that the reports, particularly noting the psychiatrist review, did not indicate major mental health issues being faced by the applicant apart from understandable stress, anxiety and insomnia due to his visa situation. There is no indication that the applicant takes medication for mental health issues other than to assist in sleep. In the hearing the applicant had referred only to additional medication for pain and for muscle problems. The Tribunal also notes various medical reports indicating the applicant as not demonstrating psychosis or suicidal ideation. Medical reports indicate the applicant being polite, alert and cognitively able.

7. The Tribunal indicated to the applicant that the fact that Samoa may have inferior mental health treatment would not be harm that generally would meet protection criteria. This is because the harm would not be for a refugee criterion reason nor, for the purpose of the complementary protection criteria, would there be a deliberate intent by anyone to cause cruel or inhuman treatment or punishment or degrading treatment or punishment as required for defined categories of significant harm. The harm would simply be a product of the resources of the state, not a deliberate intention to harm as is required in the legislation.

8. The applicant was asked to comment and he indicated that he understands what the Tribunal is saying. He indicated that his focus of harm is his separation from his family in Australia.

9. The Tribunal put to the applicant that mental health problems would meet protection criteria in the situation where a person was so affected mentally that it would cause others to target and inflict serious or significant harm because of adverse mental health attributes demonstrated by the person. The Tribunal put to the applicant that, apart from the applicant having understandable stress, anxiety and insomnia, there was no indication at all from the medical reports that the applicant was disoriented, acting under psychosis or behaving in any other significantly antisocial adverse way which would cause individuals in Samoa to deliberately target him for harm as a result of his negative attributes. In response the applicant indicated that he is not claiming that he will be deliberately targeted for harm as a result of mental health issues. However, there will be shame suffered by him in mockery as a result of him being deported from Australia. The Tribunal noted to the applicant the harm of this nature was not likely to rise to the level of harm or meet relevant criteria required for a protection visa.

10. The Tribunal noted to the applicant that the psychiatrist’s report and evidence given by the inherent indicates the applicant stating that his reasons for not being able to return to Samoa are due to the fact that his parents have passed away and that he no longer has contact with his siblings. The applicant also claims harm due to the separation from his family in Australia. The Tribunal put to the applicant these difficulties would not be harm that would meet protection criteria. In response the applicant thanked the Tribunal for explaining this and asked for advice as to other opportunities he may have to remain in Australia.

11. The Tribunal notes that the applicant’s written claims potentially suggest that the applicant faces harm in Samoa because he will commit suicide.

12. It was noted to the applicant in the hearing that none of the many medical consultations with the applicant in Immigration detention indicate the applicant reporting a desire to take his life. Indeed, at least two of the reports indicate the applicant having no suicidal ideation.

13. The Tribunal noted to the applicant that, in any event, the risk of suicide does not generally meet protection criteria. This is because the harm would not be for a refugee criterion reason or that it would involve systematic and discriminatory conduct. It would not fall within definitions of significant harm for the purpose of the complementary protection criteria.

14. In response, the applicant indicates that he would not be at risk of suicide as a product of his religious beliefs that this is a sin.

15. The applicant did not ultimately maintain in the hearing that he faces requisite harm in Samoa as a result of inferior mental health treatment. Even if the applicant was to maintain such a claim, the protection criteria would not be met on this basis for the reasons given in the hearing to the applicant.

16. The applicant did not ultimately in the hearing maintain the claim that he would suffer deliberate serious or significant harm as a result of his mental health issues. On that basis, the Tribunal does not consider that the applicant faces a real chance of serious significant harm on this basis. The applicant’s concession at the end of the hearing that he does not face a requisite risk of harm on this basis is broadly consistent with the relatively low-level degree of mental health issues suffered by the applicant in Immigration detention.

17. The applicant in the hearing did not seriously maintain that he is at risk of suicide. Even if the applicant were at real risk of suicide, for the reasons given to the applicant in the hearing this would not meet protection criteria.

18. At the end of the Tribunal hearing the applicant was candid and honest in relation to his claimed circumstances and difficulties in returning to Samoa. At its heart, the applicant is claiming hardship due to him being separated from his partner and her children in Australia and no significant family support in Samoa. The applicant indicates some degree of shame and mockery as a result of him being deported from Australia. The applicant did not by the end of the hearing seriously maintain claims of harm based on inferior mental health treatment, being deliberately harmed as a result of mental health issues or based on the risk of suicide.

19. The Tribunal has sympathy for the applicant and the hardship he would face in Samoa in terms of being separated from his partner in Australia and her children. The applicant may be in a position to apply for a Partner visa offshore given his relationship with an Australian citizen although there may be hurdles in this process given the applicant’s criminal history in Australia. The Tribunal also accepts hurdles in terms of lack of family support in Samoa.

20. These difficulties, however, do not meet protection criteria.

21. For the reasons outlined the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

22. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Samoa, the applicant faces a real risk of significant harm.

23. In terms of Ministerial discretion, one of the grounds for potential Ministerial intervention in the relevant guidelines are ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’.[1]

    [1] Minister’s guidelines on ministerial powers (s 351, s 417, s 501J), 11 March 2016

24. The Tribunal accepts that the applicant is in a relationship with an Australian citizen who has two children from a former marriage. The Tribunal is willing to accept the statement of the partner, [Ms A], as to significant difficulties faced by her and her children as a result of separation from the applicant. However, the Tribunal does note there was a dispute in the relationship which resulted in an Apprehended Violence Order. [Ms A] indicates only verbal abuse by the applicant.

25. No request has been made that the Tribunal recommend a referral to the Minister recommending Ministerial intervention. The Tribunal is not inclined in the circumstances and given that it was not asked to make such recommendation although it does note that on [Ms A]’s impassioned account there may be harm to a family unit comprising Australian citizens. The applicant will have the ability to make his own recommendation for Ministerial intervention and may wish to provide a copy of this decision as part of a submission.

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. 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).

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

    DECISION

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

    David McCulloch
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …