2406618 (Refugee)

2406618 (Refugee) [2024] AATA 3017 (24 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2406618
COUNTRY OF REFERENCE:                   Romania
MEMBER:Sydelle Muling
DATE:24 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 July 2024 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – Romania/Palestinian Territories (Gaza) – born in Romania but living in Gaza from young age – fear of harm from Hamas and Israeli army – border now closed – physical disability and mental health, length of residence, community ties and marriage to Australian citizen with physical and mental health challenges – criminal charge and immigration detention – country information – Palestinian Authority can grant permanent residency but not citizenship, and applicant is Romanian citizen – no Romanian language ability, support network or employment prospects – mocking and discrimination against people with physical disability – religious discrimination – proximity to Ukraine – inconsistent evidence about mental health – work history – separation from wife not serious harm – applicant can request ministerial consideration directly – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1949 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZEJN v MIMIA [2005] FMCA 961
SZRSN v MIAC [2013] FCA 751

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Romania and a citizen of Palestinian Territories (Gaza), applied for the visa on 30 October 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.
The applicant appeared before the Tribunal on 14 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and the applicant’s former employer.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
According to the applicant’s protection visa application, he was born on [Date] in [City 1], Timis, in Romania. He claims to be a citizen of Romania and Palestinian Authority. He resided in [City 1], Timis, Romania from [Birth] to January 2003. From January 2003 until 6 January 2019, he was residing in [City 2], in the Gaza Strip, Palestine and from 25 January 2019 to June 2019 he was residing in [in Country 1]. The applicant attended primary school from [Year] to [Year], middle school from [Year] to [Year] and high school from [Year] to [Year] in [City 2]. He completed high school in [Country 1] in 2019. The applicant was employed as [an occupation 1] for a [business] in [City 2] from July 2016 to October 2018. In Australia, he has worked at [Employer] from June 2019 to July 2020, as [occupation] for a [workplace 1] from May 2021 to September 2021, [occupation] at [workplace 2] from September 2021 to 24 December 2021 and as [an occupation 2] for [a company] from May 2022 to May 2023. The applicant last arrived in Australia in June 2019. He was married [in] 2023.
The applicant presented his claims in his protection visa application, summarised as follows:
·He left Palestine as his mother applied for a 461 visa, which was approved. His plan was to come to Australia to study, work and have a better life as it is not easy to live in the Gaza Strip where there are no jobs and if you have a job, you are underpaid, and things are expensive. Also, there is constant conflict between Palestinians and Israelis, so it is not safe at all.
·He has been through 4 wars and has experienced bombings and seen people killed in horrific ways, which has reflected on his mental health over time.
·The people causing him constant harm is Hamas and their people and government, alongside the Israeli army.
·There is nobody to seek help from either being bombed in a war or facing hard life circumstances or Hamas who is so cruel to people and hurts those who do not agree with them.
·Nobody is allowed to leave the Gaza Strip towards the Palestinian Territories as Israel has closed the border and does not let anyone through. As of 26 October 2023, there is a massive war going on in the Gaza Strip. The place is doomed with over 1 million homeless. If he goes back he will not have a place to start over or get a job.
·He has nobody to go to there. He does not talk to his family at all. They would let him be homeless.
·He has been in Australia for nearly 5 years. He knows the law here, the people and the culture. He has settled in Australia, and he wants to live and build a family here.
The applicant provided a number of documents in support of his application including a Palestinian Authority Birth Certificate dated [Date]; Palestinian Authority Certificate of Good Conduct dated [Date]; Romanian Birth Certificate dated [Date]; an explanation letter for his late disclosure of criminal offences; and support letters from the owner, [manager] and a co-worker at the [Employer] where he worked, the applicant’s wife and the applicant’s wife’s grandmother. In the letter from the applicant’s wife, she addresses the criminal charges against the applicant, the support the applicant has provided her in relation to the medical conditions she suffers from and the effect separation from the applicant has had on her since he was put in detention.
In a statement of claims dated 12 December 2023, the applicant provided the following additional information with respect to the ongoing conflict in Palestine and the challenging circumstances he would face in Romania:
·He is seeking refuge from the protracted and devastating conflict between Palestinians and Israelis, which has created an environment devoid of basic human rights and safety.
·The conflict has severely impacted his ability to lead a normal life, with constant threats to personal safety, lack of access to essential services and general absence of basic life rights.
·He suffers from a physical disability which significantly hampers his ability to lead an independent and sustainable life.
·His mental health is adversely affected, compounded by anxiety stemming from the difficult living conditions and uncertainties in Romania.
·He lacks the financial means to secure necessary medical treatment and support for his disability and mental health conditions.
·He is in a precarious situation with no financial resources, family support or a stable place to live in Romania.
·The language barrier poses a substantial obstacle to employment opportunities, hindering his ability to secure meaningful work and sustain himself.
·While he has Romanian citizenship due to his birth in the country, his life has been predominantly shaped by his upbringing in Palestine since the age of [Age].
·The linguistic disparity between Romanian and the languages he is proficient in further exacerbates the challenges he faces securing employment and integrating into Romanian society.
·He lacks a familial support network in Romania making it even more challenging to navigate the complexities of life, especially given his physical disability and mental health concerns.
The applicant also provided a letter outlining the compelling reasons he should be allowed to remain in Australia including his strong ties with the local community made during the nearly 5 years he has been in Australia, his engagement in work and his marriage to an Australian citizen who has severe health and mental health challenges.
On 20 December 2023, the applicant was sent correspondence from the delegate inviting him to provide further information in respect of a number of specific matters relevant to his claims for protection. The applicant provided a detailed submission in response to the invitation, in addition to documents outlining his wife’s medical circumstances, a letter indicating the applicant has had 2 teeth extracted since he has been in detention and medical records created since his placement in immigration detention.
The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 28 March 2024.
On 7 April 2024, the applicant provided the Tribunal a submission outlining the “compelling reasons” he believes the delegate’s decision should be reconsidered including the critical medical circumstances of his Australian wife and his role as her primary caregiver; his disability; the significant toll the prospect of deportation has taken on his mental health and the stress and uncertainty surrounding the well-being of both him and his wife; the potential legal and safety risks associated with his return to Romania and fear of undue legal repercussions including imprisonment or worse. The applicant submitted that any decision to deport him would not only affect him but also have a profound impact on his wife by not only ruining their future but also placing his wife’s health and safety at risk.
On 14 April 2024, the applicant submitted a number of reports in support of his application, including:
·Amnesty International, Council of Europe resolution is a call for action against Islamophobia in Europe, 10 October 2022;
·Amnesty International, Regional Overview of Islamophobia in Europe, 1 June 2022;
·Cupcea, A., Islamophobia in Romania: National Report 2022, in: Enes Bayrakli & Farid Hafez, European Islamophobia Report 2022, Vienna: Leopold Institute, 2023;
·Enes Bayrakli & Farid Hafez, European Islamophobia Report 2022, Vienna: Leopold Institute, 2023;
·European Network Against Racism, ENAR Shadow Report 2011–2012: Racism and related discriminatory practices in Romania, March 2013.
·European Parliamentary Research Service, Combating anti-Muslim hatred in the EU, December 2018.
On 24 April 2024, the Tribunal received a copy of the applicant’s clinical records, a copy of 2 scripts in his wife’s name and 2 letters from [Emergency Department] dated 7 March 2021 with respect to the applicant’s wife’s presentation at the Emergency Department at [Hospital] on 7 March 2021.
On 7 June 2024, the applicant forwarded to the Tribunal a statement made by his former employer and a Health Assessment Summary Report from [Organisation] dated 31 May 2024.
On 13 June 2024, the applicant forwarded statements made by his wife, his wife’s grandmother, and a former colleague at [Employer] (which he had previously submitted to the Department).
The applicant appeared before the Tribunal on 14 June 2024. The evidence provided by the applicant during the hearing will be discussed below, in the analysis and findings.
Following the hearing, on 26 June 2024, the Tribunal received 3 articles in support of his claim that he faces significant harm if deported to Romania due to the conflict between Ukraine and Russia. The applicant submitted that Romania, as a member of both NATO and the European Union (EU), shares a border with Ukraine and has been deeply affected by the ongoing conflict between Ukraine and Russia. He asserts that the current geopolitical situation presents credible risks of regional escalation and military involvement and that Romania could be drawn into this conflict. He claimed that “based on the current geopolitical dynamics and the strategic stance of Romania, the risk of significant harm due to potential regional conflict and military involvement is substantial” and that if deported to Romania he would be exposed to severe and immediate threats.
On 18 July 2024, the applicant forwarded to the Tribunal a link to a video from a Russian news channel, shared on X (formerly Twitter), which he claimed discusses potential geopolitical threats and highlights Bucharest, Romania’s capital, as a possible target under certain circumstances.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
As discussed above, s 5H(1) provides that a person is a refugee if:
(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.
Section 5J(1) sets out the meaning of ‘well-founded fear of persecution’ and refers to the relevant country of nationality or former habitual residence as a ‘receiving country’. For both the refugee and complementary protection criteria, receiving country is defined in s 5(1) of the Act as:
(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.
For persons who have a nationality, the ‘receiving country’ is the country of nationality.
The applicant was born in Romania and claims to be a citizen of Romania. The applicant has provided a copy of his Romanian passport which was issued [in] 2023. The applicant has also provided a copy of a Palestinian travel document issued in his name [in] 2022 and claims to be a Palestinian citizen. The Tribunal notes country information referred to in the delegate’s decision, a copy of which was provided to the Tribunal, provides that the Palestinian Authority does not have a nationality or citizenship law and does not have full control over the issuing of official documentation and entry and exit to its territory. The Palestinian Authority, the Territory of Palestine, constituting the West Bank and the Gaza Strip, remains under Israeli military occupation. Whilst the Palestinian Authority can grant permanent resident status to existing residents and certain persons returning from abroad, pursuant to the Oslo Accords, it requires permission from Israeli authorities to do so. Permanent residency is not legal citizenship.
The Tribunal finds that the applicant is a citizen of Romania based on the evidence before it, namely his Romanian passport. According to the United Nations High Commissioner for Refugees (UNHCR), ‘possession of ... a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise’.[1] The Tribunal notes that in the hearing the applicant advised that he had spoken with the Romanian Embassy in Australia about renouncing his Romanian citizenship and had been informed that he could, what documents were required to do so and the period of time. The applicant’s evidence was that he thought about doing this but did not want to look like he was “playing the system”. Based on the evidence before it, the Tribunal finds that at the time of making its decision the applicant is a Romanian citizen. Accordingly, the Tribunal finds that Romania is the applicant’s country of nationality and therefore it has assessed his claims for protection against Romania. While the Tribunal accepts that the applicant previously resided in the Gaza Strip for a considerable number of years and claims to face persecution there, for the purposes of ss 5H(1) and 36(2)(aa) and Article 1A(2), as the applicant is a national of Romania, he must be considered in relation to his country of nationality.[2]
[1] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, (UNHCR, reissued 2019) (‘Handbook’) at [93].
[2] For example, in SZEJN v MIMIA [2005] FMCA 961, the applicant had claimed to fear harm in both Malaysia, where he had lived and worked, and India. However, the Tribunal found that he was a citizen of India and that his claims of persecution needed to be assessed against that country. The Court held at [14] that the Tribunal had properly considered the applicant's claims in relation to India, his country of nationality.
Analysis, reasons and findings

The issues in this review are whether there is a real chance that, if the applicant is required to go to Romania, he will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Romania, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As discussed above, the Tribunal accepts the applicant was born in Romania. It accepts that the applicant moved to [City 2], in the Gaza Strip to live with his father in January 2003 when he was nearly [Age] years old, and that he resided in [City 2] until January 2019 when he travelled to Australia on a 461 visa to join his mother. The applicant claimed in the hearing he came to Australia because he missed his mother and wanted a better life and education. He wanted to work on himself and create a better future. The applicant’s evidence was that he spent one week in Australia after arriving in January 2019 before departing the country because of difficulties he experienced whilst living with his mother. He left Australia and travelled to [Country 1] where his paternal uncle lived and where he was able to enter and reside on his Romanian passport. The Tribunal accepts the applicant lived there for several months during which time he completed his final year of high school, before returning to Australia.
The applicant has provided several reasons why he believes he cannot live in Romania which the Tribunal has considered below.
The primary reason the applicant explained he does not want to go to Romania is because of the effect this will have on his Australian citizen wife, particularly in light of her medical conditions. The applicant stated that if he is required to go to Romania, his wife will have to come, and this will be a heavier burden on him because he will have to work to pay for her medical expenses as she will not be entitled to any financial assistance from the Australian government while she is residing overseas. Further, his wife will not be able to find a job because of the language and possible visa complications. He will have to worry about keeping her safe and providing all her medical needs. However, as the Tribunal put to the applicant in the hearing, his wife is an Australian citizen, and as such there is no requirement for her to depart Australia with him. The Tribunal has taken into consideration both the applicant and his wife’s evidence regarding their plans if the applicant is required to depart Australia. While the applicant spoke about the situation both he and his wife would face if she was to go to Romania with him, the Tribunal notes the applicant’s evidence in the hearing that he does not want to take his wife away from her country, her family and culture. Further, the applicant’s wife stated in the hearing that as she is not working and is relying on government support it would be difficult for her to go to Romania until she has enough money to do so. In her written statement submitted to the Tribunal, the applicant wife states that if the applicant is deported she will reside in Australia for the time being and whilst she talks about joining the applicant in Europe, it is unclear when this will be. The Tribunal notes the applicant’s claim that he is his wife’s primary care giver and considered whether this would require his wife having to depart Australia with him if he is made to leave. The Tribunal refers to the applicant’s evidence that his wife resides with her grandmother and her grandmother can provide her with the care she requires but that his wife prefers him. The Tribunal also notes that in addition to her grandmother, the applicant’s employer’s evidence was that the applicant’s wife also has the support of her mother and sisters. The Tribunal is not satisfied that these circumstances necessitate the applicant’s wife having to depart Australia with the applicant because he is the only person who can care for her. The Tribunal understands and accepts the effect separation from the applicant may have on the applicant’s wife if he is required to depart Australia and vice versa and while it appreciates the significance of this to both of them, as the Tribunal explained to the applicant, its role is limited to considering whether he meets the criteria for a protection visa. In this respect, while the Tribunal accepts the applicant’s claims regarding the mental harm that might be caused to him from being separated from his wife if he is removed from Australia, it does not accept that this of itself amounts to serious harm, even taking into consideration the applicant’s particular circumstances such as the potential impact to his mental health from the challenges he faces establishing himself in a country where he has spent very limited time and has no support.
The applicant claimed his other main concern is the war between Ukraine and Russia and the fact that Romania shares a border with Ukraine. He asserted that the possibility of NATO going to war with Russia makes him nervous and scared, particularly in light of his past experiences in [City 2]. He stated that it was his understanding that if one NATO country goes to war, all NATO countries have to join as allies and Romania is part of NATO. The Tribunal accepts that the applicant may be worried about the prospect of the Ukraine/Russia conflict expanding in the future if NATO becomes involved. It also accepts that being situated in a country in close proximity to Ukraine may heighten the applicant’s anxiety in light of his previous experiences in Gaza. However, the Tribunal does not accept that the applicant’s feelings of uncertainty or anxiety regarding the conflict between Ukraine and Russia constitute serious harm. Further, as the Tribunal put to the applicant in the hearing, it finds his assertions regarding Romania being drawn into the conflict between Ukraine and Russia in the reasonably foreseeable future speculative. As the Tribunal observed in the hearing, NATO has demonstrated a reluctance to become directly involved in the war, resulting in a more protracted conflict between Ukraine and Russia than what was initially anticipated.
The Tribunal has considered the information the applicant submitted following the hearing and his submission that there is a credible risk that Romania could be drawn into the ongoing conflict, either through direct military involvement or as a result of regional escalations and this potential for heightened military action and instability presents significant grounds for concern regarding his safety and well-being if he were to be deported to Romania. The Tribunal refers to the article War in Ukraine will not end in 2024 or 2025, NATO Deputy Secretary General says dated 13 January 2024, in which the Deputy Secretary General stated that NATO should prepare for a prolonged war between Russia and Ukraine as neither side has the military capability to secure a decisive victory. While he states that NATO will never accept that Russia occupies Ukraine and “returns to Romania’s border”, the Tribunal notes that there is no suggestion made by the Deputy Secretary General in this article that NATO has any intention of joining the conflict, particularly in the foreseeable future. In the article titled We need to be ready for war with Putin, Romania’s top general says dated 21 February 2024, the Chief of Defence of Romania is reported as advocating voluntary basic military training for men and women up to 35 years due to the end of compulsory military service in Romania being a reason for a shortfall in the army’s readiness for a potential war with Russia. The article also notes a number of other defence leaders making comments regarding the preparedness of various European countries for the possibility of war with Russia, with the German Defence Minister suggesting a Russian attack on the NATO military alliance “possible” in “five to eight years”. The final article War in Ukraine: A View from Romania dated 19 April 2022 discusses Romania’s reaction to the war in Ukraine being one of initial shock before people and authorities mobilised to support Ukrainian refugees fleeing to Romania. While the Tribunal accepts Romania shares a border with Ukraine and has been affected by the ongoing conflict, as discussed in the article War in Ukraine: A View from Romania particularly by the influx of Ukrainian refugees, the Tribunal does not accept that these articles, or the video on X of a one-minute Russian news report regarding a response to a White House press release (which essentially is that all European capitals will be at risk, in particular those in Britain) is evidence that the conflict will expand or that NATO will become involved, as the applicant suggested. The Tribunal does not accept on the evidence before it that the current geopolitical situation places the applicant at risk of serious harm. The Tribunal therefore does not accept on the evidence before it that the applicant faces a real chance of serious harm, including being drafted to fight in Ukraine, as a result of the conflict between Ukraine and Russia.
The applicant also raised claims regarding his physical disability, which in the hearing he asserted limits him a lot. He claimed that he cannot run, jump or do any heavy work. He cannot walk straight because he has tight tendons. He sometimes cannot stand for long periods of time and will have to sit until he feels better. When he walks, he has to walk at a certain speed because if he walks too fast he will lose his balance and start tripping and if he walks too slow it makes his feet sore. According to the applicant, he has not been diagnosed with a particular condition. He explained in the hearing that whilst he was in Gaza he had seen 3 specialists and each had identified a different issue; one said it was his nerves, another his muscles and the third was not sure because he has tight tendons as well. The applicant claimed the only treatment he has received was surgery on his [ankle] whilst he was in Gaza when he was [age] years old. When asked what the purpose of the surgery was, the applicant stated that as far as he could remember the doctors were trying to take the stress off the tendons to make it more relaxed and to make his movement easier but it did not help.
The Tribunal accepts that the applicant has a physical disability which affects his legs and results in him having an atypical gait. However, the Tribunal does not accept that the applicant’s disability significantly hampers his ability to lead an independent and sustainable life, as he claimed in his statement dated 12 December 2023. The applicant clarified in the hearing that what he was referring to with this statement was that he is very limited where he can work. The Tribunal observes, as it did in the hearing, that the applicant worked in [Country 1] in a Palestinian [workplace] and in Australia at [Employer], a [workplace 1] and a [workplace 2], all jobs that required him to be on his feet for extended periods of time. The Tribunal notes the applicant’s evidence in the hearing that it got to a point he could not work at [Employer] anymore because his legs became really painful from standing many hours and walking around a lot. However, his clear evidence was that his employment at [Employer] ceased when he was fired from this job. Further, the Tribunal notes that the applicant’s next job in a [workplace 1] was very similar to his job at [Employer]. The Tribunal has some concern that if the applicant had found working at [Employer] physically challenging so much so that he felt he could not continue his employment, he would subsequently engage in the same type of work. It has taken into consideration the applicant’s employer’s evidence that the applicant’s duties at the [workplace 1] included [duties]. The Tribunal finds most if not all these duties would require the applicant to be standing. The applicant’s employer’s evidence in the hearing was that he was cognisant of the applicant’s physical limitations so the applicant was not required to do any heavy lifting or heavy cleaning that may be required. However, his employer confirmed those were the only alterations to the applicant’s duties and he was able to do most other things. Considering the applicant’s past employment, the Tribunal does not accept that the applicant’s physical disability impedes his ability to work or live independently.
The applicant also raised in his response to the delegate’s invitation for further information that he might be subject to bullying because of his physical disability. In the hearing when asked about this claim, he explained that when he was living in Gaza he used to be bullied a lot because of the way he walks and he would be called all sorts of names, including a term which when translated referred to him walking with a limp. He stated there were a lot of bullies, mainly in school, who picked on his walking. The applicant also claimed that even in Australia, when he was living in [City], people would make fun of the way he walks and he is sure that wherever he goes, he will be called names or made fun of. The Tribunal notes information it put to the applicant in the hearing from the US State Department Report which provides that discrimination against persons with disability is a problem in Romania. The report refers to discrimination against children in education being a problem due to the lack of adequate teacher training on inclusion of children with disabilities and lack of investment in making schools accessible. It also refers to limited access to justice for suspects and defendants with intellectual or psychosocial disabilities and abuse of institutionalised persons with disabilities and people in psychiatric hospitals and centres for people with disabilities.[3] While the Tribunal accepts on the independent information before it that there is discrimination against persons with disabilities in Romania, particularly people with intellectual and psychosocial disabilities and for those people with disabilities who are institutionalised, it does not accept that the applicant’s physical disability would result in him facing a real chance of experiencing the discrimination or abuse discussed in the report. The Tribunal accepts the applicant’s claims regarding being made fun of and being called names, particularly whilst he was in school, because of his physical disability which affects the way he walks. The Tribunal accepts the applicant’s assertions that he may be subjected to such similar behaviour anywhere he goes, just as he has experienced in Australia. However, as the Tribunal put to the applicant, it does not accept that bullying in the form of name-calling and/or mocking or teasing is of the type and level of harm that would constitute serious harm, particularly taking into account the applicant’s particular circumstances including his past experiences in Gaza and in Australia and his attributes.
[3] United States Department of State, 2023 Country Reports on Human Rights Practices: Romania, 22 April 2024
With respect to any medical treatment the applicant may require for his physical disability, the Tribunal finds the weight of the applicant’s evidence suggests that he has not required any treatment for his physical disability during his time in Australia. When the Tribunal observed in the hearing that he had not appeared to have sought medical treatment whilst in Australia, the applicant asserted that he could not afford to see specialists because he was not earning enough to do so and he was also distracted by the legal issues he faced. However, the Tribunal notes the applicant’s earlier evidence that he had not seen any doctors in Australia prior to being placed in immigration detention because he was focused on fixing himself and building a future and that it is only since he has been in immigration detention that he has seen anyone because the Department had requested evidence of his disability. The Tribunal finds this consistent with the clinical records the applicant submitted in support of his application which notes that on 5 January 2024 the applicant had a GP consult during which he requested further investigations “to help with immigration pathway, to show the immigration officers the disability”. The Tribunal notes in particular the same record states “noted to have disability for years – nil change.” It also refers to a clinical record dated 20 December 2023 in which it was recorded that the applicant did not seek any medical support in the community regarding his disability and denies feeling any pain or discomfort from his disability. Based on the evidence before it, including the medical records submitted by the applicant, the Tribunal does not accept that the applicant requires any regular or ongoing treatment for his physical disability.
However, in the event that the applicant does require medical treatment for his physical disability or for any other reason, the Tribunal refers to the independent information it discussed with the applicant in the hearing, which states that the Romanian healthcare system provides universal healthcare coverage. Primary level care is delivered by family doctors, while hospitals and specialised medical centres provide secondary and tertiary care services. According to an article published in July 2023 analysing the healthcare system in Romania, there are some 65,000 health units operating in the country with 53,000 in urban areas and 12,000 in rural areas. There are 543 hospitals in the country as well as 160 other hospital-like establishments. However, there is unequal access to healthcare between urban and rural settings. The public sector owns the majority of hospitals and provides national health insurance to nearly all Romanian citizens.[4] Romania has a compulsory social health insurance system governed by the Ministry of Health. SHI payroll contributions are paid by working residents, while unemployed people, pensioners and those receiving social benefits, among others, are exempt from making contributions.[5] The applicant provided no comment or response to this information. While the independent information highlights a number of challenges faced by the healthcare system in Romania including insufficient funding, shortages of medical personnel and ineffectiveness in the provisioning of services, as the Tribunal put to the applicant in the hearing, it does not suggest that healthcare is not available in Romania or that the applicant would be denied access to it for any reason, if required.
[4] Petre I, Barna F, Gurgus D, Tomescu LC, Apostol A, Petre I, Furau C, Năchescu ML, Bordianu A. Analysis of the Healthcare System in Romania: A Brief Review. Healthcare (Basel), 19 July 2023
[5] OECD/European Observatory on Health Systems and Policies, Romania: Country Health Profile 2023, State of Health in the EU, 2023
In addition to his physical disability, the applicant raised a number of mental health issues. When asked in the hearing about this, the applicant responded that he has been through 3 wars in Gaza during which he had witnessed a lot of destruction and people being injured and killed. He explained that especially since he has been in immigration detention he has been experiencing flashbacks. The Tribunal has considered the medical information the applicant submitted and notes in a clinical record dated 8 December 2023 it was stated that in addition to denying any previous history of mental health issues, the applicant denied any psychological trauma or torture. Further, in a clinical record dated 20 December 2023 it was again recorded that the applicant denied any mental health history or any admission to hospital for mental health-related concerns. However, it is noted that the applicant reported the recent emergence of flashbacks regarding distressing war-related experiences whilst living in Palestine. On 9 January 2024 the applicant is reported as disclosing torture and trauma issues. The Tribunal has also taken into consideration the recent report from [Organisation] dated 31 May 2024 which states that the applicant did not disclose having received psychiatric treatment before or having been diagnosed with a mental health condition. It was noted that a full assessment of the applicant’s underlying symptoms was difficult to establish as his overall affect was observed to be restricted however it was believed that some of his symptoms are consistent with a stress-related disorder. Given the inconsistency in the applicant’s evidence regarding his mental health, the Tribunal has some concerns regarding his claim to have experienced flashbacks of armed conflict he witnessed in [City 2], particularly since he has been in immigration detention. However, the Tribunal accepts that the applicant is currently impacted by numerous psychosocial stressors, as noted in the [Organisation] report, including his uncertain situation and separation from his wife. The Tribunal notes that the [Organisation] report does not provide a psychiatric assessment of the applicant or a diagnosis. The Tribunal accepts that the applicant’s mental health may be impacted by anxiety stemming not only from the challenges he will face establishing himself in Romania but also the stress and uncertainty surrounding the well-being of his Australian citizen wife. The Act provides a non-exhaustive list of the type and level of harm that may amount to serious harm. Section 5J(5) provides that the following are instances of serious harm: a threat to a person’s life or liberty; significant physical harassment of a person; significant physical ill-treatment of a person; significant economic hardship that threatens a person’s capacity to subsist; denial of access to basic services, where the denial threatens a person’s capacity to subsist and denial of capacity to earn a livelihood of any kind, where the denial threatens a person’s capacity to subsist. The Tribunal notes that the serious harm test does not exclude serious mental harm.[6] Having regard to all the information before it, the Tribunal does not accept that any stress or anxiety the applicant may experience meets the required threshold of severity to constitute serious harm, considering the applicant’s personal circumstances and attributes such as his limited ties to Romania.
[6] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25].

The applicant raised in the hearing that he does not speak Romanian. In his statement of claims dated 12 December 2023 the applicant submitted that the language barrier poses a substantial obstacle to employment opportunities, hindering his ability to secure meaningful work and sustain himself. Further he claimed the linguistic disparity between Romanian and the languages he is proficient in exacerbates the challenges he faces securing employment and integrating into Romanian society. The Tribunal accepts that the official language of Romania is Romanian. It also accepts that the applicant does not speak Romanian and that he is fluent in English and Arabic. However, as the Tribunal put to the applicant in the hearing, independent information provides that 29–49% of the Romanian population are estimated to speak English and English is the primary second language taught in schools,[7] with 98% of students at upper secondary level having studied English as a second language.[8] Language organisation Education First estimates Romanians are some of the best English speakers in Europe, ranking 20^th in the world for their spoken English.[9] A study reported in June 2023 notes the overwhelming majority of young Romanians aspire to learn a foreign language and English is the most sought after.[10] Most of the big international operators in IT such Adobe, Amazon and Microsoft have a base in Romania, as well as Orange and Vodafone and in these companies the in-house language is English.[11] English is also reported to be one of the most requested languages by local employers.[12] The Tribunal also notes country information it discussed with the applicant in the hearing regarding the availability of language classes for new arrivals in Romania. There are language schools which cater to all levels from beginning to advanced and Romanian is said to be a relatively easy language to learn. The Tribunal notes the applicant’s response when asked if he wished to comment on this information, was that it was not about the language and instead he would focus on other areas which would impact him directly such as the war between Ukraine and Russia and legal issues. It particularly notes the applicant’s statement that “like you said the language can be learnt”. In light of the independent information discussed above, the Tribunal does not accept that the applicant’s inability to speak Romanian will hinder his ability to integrate into Romanian society or to find any employment at all such that he would not be able to sustain himself. The Tribunal refers in particular to information it put to the applicant regarding the use of English predominantly in [deleted] sector, which the applicant’s wife specifically noted in her statement received on 13 June 2024 the applicant has a passion for and interest in pursuing and which the Tribunal notes he has had previous experience working within whilst in [City 2]. Based on the information before it which suggests that English is relatively widely spoken in Romania, particularly amongst the younger population, including at workplaces, the Tribunal does not accept the applicant’s inability to speak Romanian will result in him facing a real chance of serious harm if he was to go to Romania.
[7] How To Move To Romania – The Complete Guide, ExpatFocus (United Kingdom), accessed 15 August 2022
[8] What languages are studied the most in the EU?, Eurostat, 25 September 2020
[9] How To Move To Romania – The Complete Guide, ExpatFocus (United Kingdom), accessed 15 August 2022 – Romania’s current listing on Education First English Proficiency Index is 15 out of 113 countries.
[10] Study reveals most searched foreign languages in Romania, English and German top the list, Romania-Insider.com, 19 June 2023
[11] How To Move To Romania – The Complete Guide, ExpatFocus (United Kingdom), accessed 15 August 2022
[12] English, German, the Most Popular Foreign Languages in Romania; French Comes in 5^th, Clubul Copiilor, 22 July 2023
The applicant also raised claims regarding the treatment he may receive in Romania because he is Muslim. When asked if he believes he will be harmed if he is required to go to Romania, the applicant stated “yes, on the religious side”. He claimed to have faced discrimination in [Country 1] “quite a few times”, with people attacking him verbally, calling him all sorts of names and telling him to go back to his country. The applicant noted that as his wife is also Muslim, he cannot imagine what she would face if she were to join him in Romania because it is more obvious that she is Muslim. The applicant referred to the independent information he submitted to the Tribunal prior to the hearing which discusses the discrimination against Muslims in the EU. He claimed he had seen on the news and pictures on Tik Tok and YouTube that “they” are trying to “kick” Muslims out or not let Muslims take over Europe. When asked who he thought will harm him for this reason, the applicant responded it could be anyone.
The Tribunal has considered the information that was submitted by the applicant. As it discussed with the applicant in the hearing, 3 of the documents he submitted discuss the situation in Europe generally. In particular, the Amnesty International report focuses on particular countries such as the UK, France, Germany, Switzerland and the Netherlands but not Romania. With respect to information particular to Romania, the Tribunal notes that the report Islamophobia in Romania provided little evidence of racially motivated violence or incidents directed at Muslims, noting that there were none reported in 2022 which was the period focused on in the report. Several reasons for this outcome were identified, including the lack of a system to collect data and produce statistics of cases of racist and homophobic hate crimes and underreporting. In terms of employment, it was noted that there were no significant developments regarding the employment of Muslims reported in the period under investigation and that discrimination in employment was based on other criteria such as gender, disability and HIV/AIDS. The report noted that Islam is not an issue encountered in mainstream politics. In terms of promoting racism, the most prominent actor in Romania is the Alliance for the Union of Romanians however their main targets are Hungarians, Roma, Jewish and LGBT communities. The other report the applicant provided from the European Network against Racism which is dated 2011–2012 states that interviews with important Muslim representatives revealed no major problems related to discrimination. The majority of Muslims are migrants and were identified as being vulnerable to discrimination as migrants, especially undocumented migrants, rather than Muslims. It also states Islamophobia is not an issue of major concern in Romania and that in general, there are good social relations between the integrated Muslim community and the majority population. The Tribunal observes that this report is quite dated however it also covers the period post 9/11. The Tribunal notes that when it asked the applicant if there was anything in particular he wanted to point to in the numerous reports that he had submitted or if there was anything specifically he wanted the Tribunal to consider, the applicant responded that it was more his wife than him because “you would not say I am a Muslim looking at me”.
The Tribunal has also had regard to other independent information including the US State Department Report on Human Rights Practices,[13] Minority Rights Group,[14] European Commission against racism and intolerance report on Romania,[15] Freedom House[16] and Amnesty International.[17] As the Tribunal put to the applicant, these reports refer to discrimination and violence predominantly against Roma but also Jewish people and Hungarians. There was very little, if any, information with respect to Muslims. The information provides that the main targets of racism and intolerance, including violent sporadic attacks, are Roma, the Hungarian majority, LGBT persons and the Jewish community. While the Tribunal accepts that the applicant may be subjected to discrimination in the form of being called names or other verbal abuse similar to what he experienced in [Country 1], the Tribunal does not accept that such treatment constitutes serious harm. The weight of the information before it suggests that Muslims are not a group that is victimised in Romania or subject to violence, racism or hate speech. Considering all the information before it, including the reports provided by the applicant, the Tribunal does not accept that the applicant faces a real chance of serious harm because he is Muslim in Romania.
[13] United States Department of State, 2023 Country Reports on Human Rights Practices: Romania, 22 April 2024
[14] Minority Rights Group, Romania, May 2020
[15] European Commission against Racism and Tolerance, ECRI Report on Romania, 5 June 2019
[16] Freedom House, Freedom in the World 2023, March 2023
[17] Amnesty International, Romania 2023,
The Tribunal also does not accept that the applicant would be prevented from practising his religion in Romania. The Tribunal notes information from the US Department of State Report on International Religious Freedom on Romania, which it discussed with the applicant in the hearing, provides that the Constitution stipulates all religions are independent from the state, and religious groups have the freedom to organise “in accordance with their own statutes”. Islam is one of the 18 religious organisations recognised as a religious denomination. The law bans discrimination on religious grounds in all areas of public life, as well as religious defamation and generating conflict on religious grounds.[18] The Tribunal finds on the information before it that the applicant would be able to practise his religion in Romania and there are protections from the authorities in relation to religious freedom.
[18] United States Department of State, 2023 Report on International Religious Freedom: Romania, 22 April 2024
The Tribunal has considered the applicant’s claim regarding the precarious situation he faces in Romania because he has no financial resources, family support or a stable place to live. The Tribunal accepts the applicant faces challenging circumstances in Romania in establishing himself, including finding employment and a place to live, particularly in light of the limited ties he has to the country. The Tribunal notes the independent information it discussed with the applicant provides that Romania has a social welfare system which affords social assistance benefits including guaranteed minimum income or social aid and social housing.[19] While the Tribunal accepts that the applicant is returning to a country that he has not lived in since the age of [Age], has no familial support and is unable to speak the language, as a citizen of Romania, it finds the applicant would have access to such services and would not face a real chance of serious harm including significant economic hardship that threatens his capacity to subsist.
[19] European Commission, Your social security rights in Romania, July 2021
In the applicant’s response to the delegate’s invitation to provide further information he raised the fact that he looks different in terms of his skin colour and facial features. When asked to explain what he meant by this, the applicant demonstrated a lack of awareness of what he had written. The Tribunal noted that he had indicated that he will be easily discriminated against because he looks different. The applicant explained that as far as he could remember he was referring to the fact that his father is not his biological father, and he does not know who his real father is. He stated that he could not recall saying he looked different. When the Tribunal asked the applicant if he believes he will look different from others in Romania for any particular reason, the applicant stated that when he was in [Country 1] he looked a bit different in that others looked more European than him. He stated that some people said he looked Arab and some said he looked European. The Tribunal notes, as it did in the hearing, that the applicant claimed in his response to the delegate’s invitation to provide further information that there is a high rate of crime in Romania and he would be an easy target because of language, skin colour and facial features and his disability. When the Tribunal put this to the applicant, he responded stating that he had read online that a lot of people impersonate police officers and ask people for their ID and then steal it or jump on people and steal their belongings. He noted that travel advice for Romania advised people to be aware of such activity. The Tribunal accepts that such criminal activities do occur in Romania, however there is nothing before it to suggest that the applicant would be targeted for such activity for any of the reasons he has claimed.
The applicant also raised concerns regarding possible consequences he may face in Romania due to the criminal charges he faced in Australia. In the applicant’s statement received by the Tribunal on 7 April 2024, he claimed to fear facing undue legal repercussions including imprisonment because of the uncertain nature of his past charges. In the hearing, the applicant explained that it is already hard for him to find jobs in Australia, but he does not know what will happen to him if he goes to Romania. Further, he knows the law in Australia and what he is required to do but does not know what the situation will be in Romania. The applicant asserted that if he goes to Romania he will have to tell the Australian police that he is going somewhere else and provide the address where he is living. He asserted that he was told by a police officer that they will notify the authorities in Romania. Further, he claimed to have read only 2 years ago, depending on the country, if they have a register system (sexual offenders register), sometimes the country a person travels from lets the other country know that they are on the register and they take it over. When the Tribunal asked the applicant if he knew whether Romania had such a system, the applicant stated no because there is no public information. As the Tribunal put to the applicant in the hearing, it could find nothing to suggest that there is no double jeopardy in Romania to prevent a person from being tried for the same offence after being convicted. The Tribunal finds that even if the applicant is placed on a register and is required to report to the authorities, including where he resides, as he currently does in Australia, it does not accept that such treatment constitutes serious harm. On the basis of the information before it, the Tribunal does not accept that the applicant faces a real chance of serious harm, including being investigated, detained and imprisoned or being denied employment, because of his criminal convictions in Australia. The Tribunal finds the applicant’s claims regarding the possible legal implications and other ramifications his criminal history may have on him, including if he is forcibly removed from Australia, to be unsupported assertions.
Similarly, the Tribunal finds the applicant’s claim that the uncertain nature of the past charges against him in Australia will pose a significant risk to his well-being to be speculative. When asked in the hearing to explain on what basis he believes he is at risk for this reason, the applicant asserted that if somehow someone found out about what happened in Australia, it may put him at direct risk. The applicant explained if someone who does not know the case in some way found out about him and saw what happened as “bigger than it is”, he will be at risk, including of being jumped. He stated that he did not know how people think in Romania but was raising what if that happens. The Tribunal finds the applicant’s assertions regarding people in Romania learning about his charges in Australia to be conjecture and does not accept that there is a real chance of people (generally) in Romania learning about his convictions or that even if they did, this would result in the applicant facing a real chance of serious harm.
The Tribunal accepts that the applicant faces a somewhat uncertain future in Romania given the extremely limited time that he spent there during his formative years. It accepts the prospect of being sent to a country where he has no ties whatsoever is incredibly daunting. The Tribunal notes the applicant’s evidence that he does not know the culture or the laws in Romania. It observes that he similarly did not know the culture or the laws in Australia before he travelled here. The Tribunal does not accept that the applicant’s lack of familiarity with Romania and its people, culture and law gives rise to a claim for protection.
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted for any of the reasons outlined in s 5J(1)(a) of the Act, including his physical disability, Muslim religion, mental health, language or the conflict between Ukraine and Russia. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
COMPLEMENTARY PROTECTION
As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criteria in s 36(2)(aa), that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Romania, there is a real risk that he will suffer significant harm as exclusively defined in s 36(2A) of the Act.
Having regard to the definition of significant harm in s 36(2A) of the Act, as set out in the attachment of this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience if sent to Romania will involve a real risk of: being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
As discussed above, the Tribunal accepts that the applicant may experience bullying in the form of name-calling or being made fun of because of his physical disability. It also accepts that the applicant may be called names or experience similar verbal abuse as a Muslim, analogous to what he claimed to have experienced while residing in [Country 1]. However, the Tribunal does not accept that such treatment constitutes significant harm, having regard to each element of the definition in s 36(2A) of the Act as it does not accept name calling or being made fun of is at a level where it amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, in that it would cause the applicant severe pain or suffering or extreme humiliation, even taking into account the applicant’s characteristics and circumstances including the possible mental health issues he may face due to being separated from his wife and having to establish himself in a country where he has limited ties.
The Tribunal accepts the applicant may suffer mental harm as a result of the stress and uncertainty of his situation and his separation from his wife but does not accept that this meets the definition of significant harm in s 36(2A). The Tribunal refers to the decision in SZRSN v MIAC which provides that any claim of harm arising from family separation resulting purely from an applicant’s removal from Australia will not satisfy s 36(2)(aa).[20]
[20] SZRSN v MIAC [2013] FCA 751. See also AWC21 v MHA [2022] FCA 1568 in which the appellant submitted that his mental health issues, inability to speak Italian and separation from his support network put him at risk of harm should he be returned to Italy. The Court, following the decision in GLD18 held that harm which arises from the act of removal, including by reason of separation from family and other support available in Australia, is not harm faced in the receiving country by reason of acts or omissions occurring or circumstances prevailing in the receiving country, and as such, is not significant harm for the purposes of s 36(2)(aa): at [29].

Further, while the Tribunal accepts the applicant may be worried about the prospect of the Ukraine and Russia war expanding in the future and feel uncertain and anxious about the conflict given Romania’s proximity to Ukraine and his past experiences in [City 2], the Tribunal does not accept that the applicant’s emotions constitute significant harm within the meaning of s 36(2)(a) because it does not meet the requisite intention element which forms part of the definition.
Nor does the Tribunal accept, for the reasons provided, that the applicant faces a real chance of significant harm as a Muslim, including in the form of denial of the practice of his religion, having no access to medical treatment or social services, being unable to subsist, or due to the conflict between Ukraine and Russia.
The Full Federal Court held in MIAC v SZQRB that the ‘real risk test’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[21]
[21] MIAC v SZQRB [2013] FCAFC 33 at [246], [297], [342]
Based on the above, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Romania, there is a real risk that the applicant will suffer significant harm.
The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).
Other considerations
The applicant has submitted that there are a number of compelling reasons he should be allowed to remain in Australia, which if not recognised would lead to serious harm and continuing hardship to his Australian citizen wife. The Tribunal notes that s 417 gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal notes in the applicant’s statement received on 7 April 2024 the applicant raised his wife’s medical issues and his role as her primary caregiver and the direct impact their separation would have on his wife’s well-being and safety as a vulnerable person. The Tribunal refers to both the applicant and his wife’s evidence regarding the applicant’s wife’s health issues. The Tribunal accepts the applicant’s wife suffers from seizures which are brought on by stress and anxiety. Both the applicant and his wife discussed with the Tribunal the support that the applicant provides his wife, not only when she is suffering a seizure, but also in preventing a seizure eventuating by reducing her stress and assisting her to be calm. The Tribunal accepts that the applicant plays an essential role in managing his wife’s health and that his wife is heavily reliant on the applicant for emotional support.
The applicant has also raised the fact he has spent 5 years in Australia and has established strong ties with the local community and has engaged in meaningful work. He has discussed his aspirations to establish a family with his wife and to join the army or secure a government job in order to make a lasting contribution to the Australian community. Further, the applicant has expressed remorse for his past actions and a desire to make amends for the harm he caused.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in Department policy, ‘Minister’s guidelines of ministerial powers (s 351, s 417 and s 501J)’ but has decided not to refer the matter. The applicant may make a request directly to the Minister.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sydelle Muling
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 3017

24 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal