2320261 (Refugee)

2320261 (Refugee) [2024] AATA 4442 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320261
COUNTRY OF REFERENCE:                   Zambia
MEMBER:Jessica Edis
DATE:4 October 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 October 2024 at 1:45pm
CATCHWORDS
REFUGEE – Protection Visa – Zambia – son of a former senior official – suspicion regarding circumstances of father’s death and subsequent deaths of associates – strong compassionate circumstances – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

OVERVIEW

This case concerns a decision made by a delegate of the Minister for Home Affairs on 1 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [age]-year-old male and is a citizen of the Republic of Zambia. He first arrived in Australia in August 2008. He has held a series of temporary visas since then. He married an Australian citizen in April 2015 and had an Australian citizen child in June 2018.
Between 17 November 2014 and 3 October 2019, the applicant received refusal decisions in respect of a student visa and a partner visa application. He unsuccessfully attempted to have those decisions reviewed and set aside. He did not receive professional legal help.
The applicant lodged the protection visa application via IMMIAccount on 21 October 2019. He has described it as a ‘last resort’ to avoid going back to Zambia. The applicant’s protection claims are connected to the circumstances of his father’s death. His father was a longstanding officer with [a workplace]. He was appointed [Senior official 1] in 2007. He died in March 2010 while holding that position and during his tenure as [Office Bearer 1] of [Association 1]. The cause of death was recorded as [Medical condition 1]. But the applicant and his family believe his father was poisoned because he refused to accept a bribe. When the applicant and his family started asking questions about it, they were told to keep quiet or ‘something bad’ would happen to them. The applicant is afraid to go back to Zambia. He fears being ‘locked up’ or killed by the authorities who he suspects were involved his father’s death.
The applicant lodged a review of the protection visa refusal decision with the Tribunal on 12 December 2023. He attended a Tribunal hearing before me on 30 August 2024. He gave evidence in a forthright manner to the best of his ability. He presented as an honest, prosocial person. I well understand why the applicant does not wish to return to Zambia. But, for the reasons which I set out below, I am not satisfied he meets the protection visa criteria.
However, that is not the end of the matter in this case. I have considered whether the applicant’s situation falls within the types of ‘unique or exceptional circumstances’ that may be brought to the Minister’s attention pursuant to the Minister’s guidelines on ministerial powers (the Minister’s guidelines). Under s 417 of the Act, the Minister can substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. This ministerial power is personal and discretionary.
The Tribunal may refer a case to the Department if the member believes the issues involved fall within the Minister’s guidelines. I acknowledge a referral should be made judiciously and after careful consideration. I make such a referral in this case. I expressly recommend the Minister substitutes my decision with one that is more favourable to the applicant.
For the sake of clarity, and avoidance of any doubt, I note that the Department must separately assess the circumstances of the case for referral to the Minister. For my part, I am strongly of the view that the applicant’s circumstances squarely fall within the following type of case explicitly stipulated in the Minister’s guidelines:
·strong compassionate circumstances that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen, namely, each of the applicant’s wife and his [age]-year-old child, who are both Australian citizens.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth).[1] 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 because they meet the definition of a ‘refugee’ (per s 36(2)(a)); or are entitled to ‘complementary protection’ (per s 36(2)(aa)); or are a member of the same family unit as such a person (per s 36(2)(b) or (c)).
[1] An extract of all of the key legislative provisions is set out in an attachment to this decision.
Refugee criterion
Put simply, an applicant meets s 36(2)(a) if he or she is determined to be a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a) of the Act.
The meaning of ‘well-founded fear of persecution’ is expounded in s 5J of the Act.
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: s 5J(1)(a); and
·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and
·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a).[2]
[2] That is: race, religion, nationality, membership of a particular social group, or political opinion.
Additionally, the persecution must involve:
·serious harm to the person: s 5J(4)(b); and
·systematic and discriminatory conduct: s 5J(4)(c).
Complementary protection
If a person is found not to be a refugee, he or she may nevertheless meet the criteria for the visa if there are 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) of the Act.
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).
Pursuant to s 36(2A), a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I am also required by law to take account of:
·the ‘Refugee Law Guidelines’ and the ‘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.
In the case of Zambia, DFAT has not published a country information assessment. However, I have taken account of information contained in the Country Report on Human Rights Practices for 2023 – Zambia, prepared by the United States Department of States. Having said this, I do not consider the country information to be strictly determinative in this case.
OUTLINE OF EVIDENCE
Country of nationality
The applicant has provided a copy of his current Zambian passport and there are no concerns with his identity. Accordingly, I am satisfied the applicant is a Zambian citizen.
Personal background
The applicant recounted his personal background at the hearing, which I accept. He was born in [City 1], but grew up in the city of Kabwe, located in a different part of Zambia.
The applicant completed his schooling in Kabwe. He finished at age 18, in [year]. He then took a ‘gap year’ during which time he worked on a farm that his father had purchased in the 1980s as a hobby property of sorts. In 2007, he undertook a bridging course which enabled him to apply for an Australian student visa. He enrolled in a course at [a] University and arrived in Perth in August 2008.
The applicant is one of 9 children. Several of them have studied [overseas]. One of the applicant’s older siblings was completing a [degree] in Perth at the time the applicant arrived to start his bachelor’s degree.
The applicant’s father died in March 2010 in circumstances which will be addressed below. His mother and each of his 8 siblings are still alive; all of them continue to reside in Zambia.
The death of the applicant’s father and what happened thereafter
The applicant claims his father was [Mr A]. He did not produce a birth certificate to the Department or the Tribunal. But, based on the level of detailed information he was able to give about [Mr A], and various other documentation that he has supplied in support of his application – including a certified copy of [Mr A]’s death certificate and numerous photos of [Mr A] – I have no hesitation in accepting the applicant is [Mr A]’s son.
I am also satisfied, based on credible documentary evidence provided by the applicant, that:
·[Mr A] was appointed as the [Senior official 1] in May 2007;
·[Mr A] had previously served as the [Senior official 2] for 10+ years;
·[Mr A] fell ill during [a] conference in early February 2010, held in [Country 1], which he attended in his capacity as the [Office Bearer 1] of [Association 1];
·[Mr A] died in a hospital in Lusaka, Zambia on [date March] 2010;
·[Mr A]’s cause of death was recorded as [Medical condition 1];
·a [funeral] was held for [Mr A] in Lusaka on [date] March 2010; and
·[Mr A] was posthumously awarded an [award] on 25 May 2014.
The applicant said as follows in a statement uploaded to IMMIAccount on 21 October 2019:
[…] The death certificate states that [my father] died of [Medical condition 1] and [a condition] they said he died of seafood poisoning – but he doesn’t eat seafood. I believe that he was killed because [he] was in a very high position and people were jealous of him. He was not corrupt as he was also a [occupation]; I believe that someone from the government – likely from the Department of Home Affairs – was responsible for his death. Strangely, 3 months after my father died, his [colleague Ms B] died […] in similar and questionable circumstances. I believe these two deaths are connected, as it is too coincidental to be an accident. I know the poisoning of my father has to do with an inmate wanting a parole. A high profile figure tried to bribe my father. My father was not that type of person. And we believe he was killed because of this.
In a further statement provided by the applicant to the Department in support of his claims, he added:
While we found [my father’s] death and cause of death suspicious, we only started asking the hard questions after [Ms B] died […] That is when the threats, harassment and mistreatment of my family and I began. As soon as we started probing and searching for answers regarding the death of my father, that’s when life started getting bad for our family. My mother was entitled to security and a personal driver up to 6 months after my father’s death, but security and the driver were taken away from her as soon as we started probing for answers after the death of [Ms B].
This was around June, July 2010 […] All these things were done to agitate, scare and intimidate our family for asking questions. My father’s vehicles were also taken away. The threats continued and heightened in September 2010 when they requested for my father’s phone, laptop, and [Passport]. They took the passport and laptop but I managed to take my father’s phone and returned to Australia.
I have not returned to Zambia since September 2010. Any time someone from my family asked about the death of my father they would be threatened and asked not to start trouble as something bad was going to happen to them.
My father’s driver [Mr C], for over 10 years also died while in office in 2016. This was after I had started [to] ask questions and talking to him trying to find out the truth regarding the death of my father. He was in his late thirties, early forties when he died. I find it very odd that three people that closely worked together all died in office under questionable circumstances.
I discussed the above matters with the applicant at the hearing on 30 August 2024.
I put to the applicant that there is no mention of seafood poisoning on the death certificate. He agreed. He explained that he and his family were told that his father’s illness commenced after he ate seafood, but ‘that story didn’t add up’ as far as they were concerned.
I put to the applicant that his claim meant that his father was poisoned outside of Zambia, in [Country 1]. He agreed. He thought that someone ‘most likely’ from within the Zambian government delegation to the [conference] organised it.
I asked the applicant how he came to believe that his father had been poisoned because he refused to take a bribe. He said it was based on what [Ms B] had said to a nurse at the hospital before she died. The nurse who cared for [Ms B] later relayed what [Ms B] said to the applicant’s mother, who then talked to the applicant and his siblings about it.
I checked if the applicant knew or was told the cause of death for [Ms B]. He said he didn’t know but that he heard from others that she looked similar to how his father looked when he was sick and dying.
I sought an explanation from the applicant as to the connection between his father’s death and the death of [Ms B]. He said she must have been poisoned too because of what she knew. I asked: ‘so she knew something that would implicate others?’ He replied: ‘Yes, but I’m just guessing.’
I asked the applicant about the death of [Mr C] in 2016, and its relevance. He said that [Mr C] had worked for his father, and it was suspicious that he died at a young age. But he readily admitted that he did not know how [Mr C] died and he had not spoken to [Mr C] in roughly 4 years as of 2016.
The applicant told me that the suspicions held by him and his family were heightened because of the manner in which they were treated by the government officials after they ‘started asking questions’ in mid-2010. He said that because they didn’t get any answers, they thought it was ‘fishy’; their line of thinking was that if the authorities had nothing to hide, why would they tell the family to leave it alone? He also spoke about himself and his family receiving ‘threatening phone calls’ during which they were told ‘something bad’ would happen if they didn’t stop making their enquiries.
I put to the applicant that nothing ‘bad’ ever in fact happened to him and his family despite what was said to them during the calls they received. He agreed, but he said that was because his family was effectively bullied into giving up, and he himself came back to Australia in September 2010 because he was ‘getting uncomfortable’ about the situation.
The applicant recounted how numerous assets, property and services were abruptly removed from his mother after she started enquiring into the circumstances of her husband’s death. I put it to the applicant that an explanation for these actions may have been she was no longer entitled to them if they were linked to his father’s [official role] and that, insofar as the phone and laptop were concerned, they may well have contained sensitive government information in the context of his father’s high-ranking position. He agreed but said, nevertheless, in his view, the authorities seemed ‘too pushy’ and ‘over the top’ in the way that they conducted themselves.
The applicant told me that he kept his father’s government-issued mobile phone, despite the authorities expressly requesting that it be returned to them by his mother (who had it in her possession at the family home in Kabwe). The applicant thought there must be ‘something important on it’. He brought the phone back to Australia. But he has never managed to ‘unlock’ it and does not know if it contains any information which substantiates his suspicions about his father’s death.
I asked the applicant if he received any unsolicited calls from Zambia after he returned to Australia. He said that he did, but they stopped when he changed mobile number. He could not remember when it was; he said he has changed his number a few times over the years.
I put to him that he might have in fact created a problem for himself when he left Zambia with his father’s phone; i.e., he had effectively stolen government property. He indicated it had not occurred to him until I pointed it out.
When I asked the applicant what he thought would happen if he went back to Zambia, he replied: ‘Honestly, I don’t know. I could disappear. I could get locked up. I honestly don’t know.’ He admitted he has not maintained regular contained with his family in Zambia over the years. He has not tried to make enquiries with them (or anyone else) about what might happen if he returns. He occasionally communicates with a [brother]. He said [the brother] doesn’t think it is a good idea for him to return but he didn’t say why.
I remarked to the applicant that it seemed his father was highly revered in Zambia, to the extent that he received a prestigious award 4 years after he died, and I asked the applicant whether it might be a ‘bad look’ for the government officials to harm the applicant if he returned, given his father’s reputation and legacy. The applicant’s reply was that I was looking at his circumstances from a viewpoint of a ‘first world country’; I needed to understand that, in third world countries, people disappear and are arrested without charge all the time.
The applicant also explained to me during the hearing that despite the passage of 14 years, some of the officials who held roles in the Zambian government at the time of his father’s death are still in ‘high positions’. In other words, not all of the officials who may have been involved in his father’s death have gone. He cited the current [Senior official 1] as one such person. I put to the applicant that he did not know ‘who did what’ in terms of his suspicions about the government officials; he agreed.
The documents
As noted, the applicant produced documentary evidence about his father and his death on [date March] 2010. He also produced news articles which confirmed that each of [Ms B] and [Mr C] passed away at around the time he said they did. The articles do not refer to their causes of death or indicate their deaths were suspicious.
The applicant additionally provided the Department and the Tribunal (collectively) with extracts from numerous other news articles dating between December 1997 and August 2024, which variously reported on the following matters:
·[Mr A] and the high-profile work that he carried out;
·the 2006 death of a Zambian politician whose supporters claimed he had been poisoned;
·the circumstances of [Mr A]’s appointment to the [Senior Official 1] role in 2007;
·former Zambian presidents (for whom [Mr A] worked) who were either found guilty of criminal offences or who died in office;
·fraud allegations against the former First Lady of Zambia;
·the recent abduction of a Zambian Member of Parliament;
·recent police interference with a meeting between a former President and a Catholic Bishop; and
·recent concerns about the Zambian judiciary being ‘compromised’.

The applicant gave the following statement to the Tribunal together with some of the above-described news articles:
Zambia is a democracy and the rule of law is upheld in certain cases but nowhere near you to the levels of a first world country like Australia. It is not unusual for those in power to flex and abuse their powers. To illustrate my fears, I have given examples of how a current and seating Member of Parliament like Mr Banda disappeared or a Catholic Bishop Clement Mulenga can be arrested by police without charge. I also have an example of the Former First Lady that was arrested by a mob of armed police. All of the above examples are people way more powerful and way more influential than I am but the law is not on their side.
Country information
I have taken account of the Country Report on Human Rights Practices for 2023 – Zambia, prepared and published by the United States Department of States.
According to the Executive Summary of that report:
Significant human rights issues included credible reports of arbitrary or unlawful killings, including extrajudicial killings; torture and cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; serious restrictions on freedom of expression and media freedom, including violence and threats of violence against journalists, censorship, and enforcement of or threat to enforce criminal libel laws to limit expression; substantial interference with the freedom of peaceful assembly and freedom of association; and laws criminalizing consensual same-sex sexual conduct between adults, which were enforced.
I accept there are indeed persistent, significant human rights issues in Zambia. Relevantly, on the basis of the report, I do not take issue with the applicant’s submission to me that the government authorities engage in various conduct from time to time which constitutes an abuse of power and the State’s security forces are sometimes used for political purposes.
ANALYSIS OF EVIDENCE
I repeat what I said at the outset. The impression I formed of the applicant at the hearing is that he is an honest and sincere individual. I do not think he fabricated anything or sought to embellish his claims. But, at the end of the day, I must consider the objective facts together with his subjective beliefs in assessing the evidence in this case. Put another way, I am not required to accept the applicant’s claims uncritically simply because there is a remote possibility that they could potentially be true.
The insurmountable problem faced by the applicant is that his claims are wholly comprised of speculation about:
·the cause of his father’s death in March 2010 – which was not recorded as suspicious and never investigated;
·the veracity of the hearsay of a hospital nurse who cared for [Ms B] when she fell ill and passed away 3 months later – which no one else appeared to be told;
·the reasons why the authorities acted in a certain manner towards his family after they voiced their concerns about the cause of [Mr A]’s death – in circumstances where 3 to 6 months had already passed since [Mr A] had died; and
·the applicant being harmed if he returns to Zambia – despite not having made any meaningful enquiries about such a possibility with any of his 7 immediate family members who have continued to reside in Zambia all this time, and who have never experienced any harm.
The only objective facts are that [Mr A] died from [Medical condition 1] while in office, [Mr A’s deputy, Ms B] died a few months later, and an officer by the name of [Mr C] died 6 years after that. There is no evidence to substantiate a claim that the 3 deaths are linked, nor that any of them involved foul play. I do not consider the simple connection that [Mr A] worked together with those 2 others as being consistent of a claim that he was poisoned, and the 2 others knew something about this.
Even if I accept that [Ms B] said something to a hospital nurse in June 2010 about how and why she believed [Mr A] had died, it is entirely unverifiable. As noted, when I asked the applicant about the connection between [Mr A] and [Ms B]’s deaths, and what [Ms B] knew, he admitted that he was indeed ‘just guessing’.
Insofar as the conduct of the government officials is concerned, I do not doubt the applicant and his family were treated in a most insensitive manner while they were still grieving from [Mr A]’s unexpected and unpleasant death. The officials’ conduct is entirely consistent with the country information about the manner in which the authorities go about their business in Zambia. By all accounts, they are renowned for running roughshod. But it does not support a claim that [Mr A] had been poisoned by someone within the Zambian government.
I do not consider the removal of services from the applicant’s mother (such as security officers and a driver) or the retrieval of [Mr A]’s government-issued vehicles, laptop and passport were done to agitate or scare the applicant’s family. The reality is that [Mr A] had died and, as a consequence, the authorities were entitled to get these things back.
I’m prepared to accept the applicant and his family received a number of intimidating calls during the second half of 2010, when they had expressed disquiet about the cause of [Mr A]’s death and ‘started probing’ into it, and they were warned not to pursue their enquiries. But I do not accept that such ‘threats’ amounted to serious harm, and I do not consider they are consistent with a claim that [Mr A] was poisoned. There are all sorts of sound reasons why the government authorities would not want to expend its time and resources on an investigation into [Mr A]’s death, or appear to give credence to an allegation that he was poisoned, not the least of which is because the cause of death had already been certified by an independent medical practitioner such that further investigation was evidently unwarranted. Not to mention, a [funeral] had been held for [Mr A] some months prior, and the prospect of exhuming his body to carry out a forensic autopsy (for example) without very strong justification for doing so would have been most unattractive to the Zambian authorities in terms of the indignity, the expense, and the potential for scandal.
I am not surprised the applicant continued to receive calls from Zambia after he returned to Australia. He left the country in possession of his father’s government-issued phone after all. However, given the passage of 14 years since the applicant did so, I do not consider there will be any consequences for him in that regard, should he return to Zambia. The phone in question is obsolete and valueless nowadays.
Finally, I accept that real problems exist in Zambia when it comes to the rule of law and the abuse of power by politicians, including instances of wrongful imprisonment and abduction. But I am unpersuaded the applicant will be harmed in that way (or similar) if he returns to Zambia. The applicant himself has no political ambitions or profile. He is the son of a former [Senior official 1] who has (ostensibly) lived in Australia since 2008. I am not satisfied he would be of any interest to the current authorities, regardless of whether some of them held roles within the government at the same time as his father’s death.
In summary, I am sympathetic to the applicant’s subjective fears and feelings of distrust towards the Zambian authorities. But I do not accept there is a sound basis for them.
ELIGIBILITY FOR THE PROTECTION VISA
Having assessed the evidence in this case, I turn now to consider the protection visa criteria.
Is the applicant a refugee?
The first question I must answer is whether the applicant’s claims meet the refugee criterion. To this end, I must be satisfied the applicant is a ‘refugee’, as defined by s 5H of the Act.
Section 5H(1)(a) relevantly provides that a person is a ‘refugee’ if, among other things, he or she has a ‘well-founded fear of persecution’. Section 5J(1)(a) provides that in order to have a ‘well-founded fear of persecution’ the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion, or because he or she is a member of a particular social group.
In this case, the applicant’s claims are linked to a uniquely personal situation. He has never suggested (nor is there any evidence which suggests) that his fear is linked to any one or more of the reasons set out in s 5J(1)(a).
On this basis, the applicant does not meet the definition of a ‘refugee’ and he is not eligible for the visa insofar as s 36(2)(a) of the Act is concerned.
Is the applicant owed complementary protection?
Alternatively, I must determine if the applicant is entitled to complementary protection. In this regard, I must be satisfied that Australia has protection obligations on the basis that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Zambia, there is a real risk that he will suffer significant harm.
Section 36(2A) of the Act provides that the term ‘significant harm’ means one of the following types of harm:
(a)arbitrary deprivation of life;
(b)the death penalty;
(c)torture;
(d)cruel or inhuman treatment or punishment; and
(e)degrading treatment or punishment.
The applicant has claimed that if he returns to Zambia, then he risks being locked up or killed by people who do not want him to probe into his father’s death. I do not accept these claims as credible, and I am not satisfied there is a real risk that any such thing will happen to the applicant. Moreover, based on my findings, I am not satisfied there is a real risk that the applicant faces any type of significant harm in Zambia.
Accordingly, I find the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
The applicant has not claimed, and there is no evidence to the effect, that he is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and who holds a protection visa. However, for completeness, I conclude he does not meet ss 36(2)(b) or (c) of the Act and therefore he cannot be granted the visa on the basis of those criteria either.
CONCLUSION
I conclude that the applicant is not eligible for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
REFERRAL TO THE MINISTER
In the course of the Tribunal hearing, I learned the applicant has been married to an Australian citizen since April 2015 but that a partner visa application he and his wife had lodged in August 2015 was refused because of what is known as a ‘Schedule 3’ issue.
Put simply, the applicant was on a bridging visa at the time he lodged the partner visa,[3] which caused a problem he and his wife had not anticipated. They never obtained any advice about the visa application process and did not understand the additional requirements that they needed to meet. The partner visa was refused in May 2018.
[3] Linked to a pending student visa application.
The applicant sought review of the partner visa refusal but lodged the application for review with the Tribunal 2 days late. As it turns out, the deadline coincided with the premature, emergency Caesarean birth of the applicant’s daughter. But there was no discretion on the part of the Tribunal to extend the deadline so the applicant’s opportunity was lost to rectify his partner visa application via merits review.
The applicant and his wife remain in a genuine, committed spousal relationship to date. The applicant’s wife is heavily reliant on the applicant for emotional and financial support. She cannot work due to numerous chronic health conditions about which the applicant has subsequently given me a voluminous bundle of medical evidence. In a letter written by the applicant to the Tribunal after the hearing, he explained:
My wife [name] has had her fair share of health problems over the years, she was diagnosed with [medical conditions]. A chronic ongoing problem [has] been causing her a lot of pain and digestive discomfort over the years. [She] has been having pain in her lower back, hands, and feet. [A condition] which causes fatigue and altered sleep. [She] has not been able to sustain employment due to these health complications.
Additionally, the applicant’s daughter has separately suffered from various severe medical problems since birth and has been diagnosed with a lifelong impairment. The applicant described his daughter’s circumstances in a statement to the Tribunal as follows:
[Miss D] was born one month premature on [date] at [a] Hospital. She has spent her young life in and out of hospitals. Having different consultants with Neurology, Neurosurgery, Physiotherapy, Occupational Therapy, Genetics and General Surgery. [Miss D] was born with [medical conditions], she also has a history of seizures and is on medication. [Medication] which she must take twice a day.
[Miss D] was recently diagnosed with [a condition] a genetic which is characterized by developmental delay and learning problems. This is a lifelong condition and [Miss D] will continue to have issues with her cognition due to this condition.
The applicant submitted a comprehensive letter of diagnosis for [Miss D] written by a clinical geneticist and dated 23 May 2023. The letter outlines the characteristics of [the condition] and confirms it is a lifelong condition in respect of which [Miss D] will require treatment and support.
In short, I received a substantial amount of documentation from the applicant in support of a referral of his case to the Minister in the event I determined he is not owed protection. I have closely considered that material and I am satisfied there are strong compassionate circumstances which would result in serious, ongoing, and irreversible harm and continuing hardship to two Australian citizens if the applicant was forced to depart Australia.
In my view, there is no question that this case falls within the Minister’s guidelines for intervention. It would be in the public interest for the Minister to substitute my decision in this case with a more favourable one, pursuant to s 417 the Act, and I recommend that course of action.
Jessica Edis
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4442

4 October 2024

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Immigration

Administrative Law

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Procedural Fairness

Statutory Construction

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