1601141 (Refugee) [2016] AATA 3684 (16 March 2016)

Last Updated: 28 April 2016

1601141 (Refugee) [2016] AATA 3684 (16 March 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1601141

COUNTRY OF REFERENCE: Germany

MEMBER: Christopher Smolicz

DATE: 16 March 2016

PLACE OF DECISION: Adelaide

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

Statement made on 16 March 2016 at 9:06am

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant who claims to be a citizen of Germany, applied for the visa [in] January 2016.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
4. 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.
5. 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 themself 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).
6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this case are whether the applicant meets the refugee or complementary protection criteria because:
   • He left Germany to be with his de facto partner
   • He fears his partner’s life will be under imminent threat if he returns to his home country.
   • He will be unable to obtain employment in Germany
   • He is viewed as a traitor by the German authorities
10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

11. The applicant is a citizen of Germany born [in specified year]. He has travelled to Australia as the holder of [temporary] visas in June 2012, December 2013 and most recently July 2015. His most recent visa ceased [in] October 2015 and the applicant became an unlawful non-citizen.
12. [In] October 2015 he was granted a Bridging visa on departure grounds valid until [November 2015]. The applicant did not depart Australia and he was detained under s.189. [In] December 2015 he applied for a combined Partner (subclass UK 820/BS801) visa. The visa was deemed invalid and [in] January 2016 the applicant applied for a protection visa subject of the current application.

Summary of substantive claims

13. According to the applicant’s statement of claim he met his current partner, [Ms A], on line in about 2008.
14. They were physically and mentally abused by their parents since their childhood. [Ms A’s] love gave him the courage to return to his native country to seek closure and forgive. They are committed to each other and their goal is to have a normal and healthy family life.
15. The applicant states that [Ms A] “has had to live in fear of violence, threats and intimidation and therefore has sought refuge with friends in our community, since without me she does not feel safe in her own home.”
16. [Ms A] provided a statement in support of the application titled “Statement in support of Relationship with [the applicant]” in which she makes the following claims:
    • She met the applicant on line on MYSPACE in 2008.
    • The applicant was astounded by her [work] and she was amazed by the originality and perfection of his [work]. They began communicating via email, phone, letters and skype.
    • [In] March 2009 they officially decided to have a relationship despite the distance and played online games together since this time.
    • After months of planning and saving she picked the applicant up from the airport [in] March 2012 and knew she could not be with anyone else. When he had to go back she was heartbroken. She felt relieved and safe when he returned.
    • She has fallen out with her family and become depressed and insecure and would never have made it through without the applicant.
    • She works at the local [workplace] while the applicant stays at home and looks after the animals, plays music and does the chores.
    • They have abided by the rules and laws and want a future together in Australia.
    • It has been difficult being separate due their financial situation.
    • Since the applicant has been in detention she has been unable to stay at home due to fear for her personal safety from her family. She claims that if the applicant were deported it would be dangerous for her life.
17. The applicant has provided a letter to the Tribunal in which he makes the following claims:
    • He has made every effort in the past to remain lawfully in Australia in order to have a family life with his spouse/de facto who is an Australian citizen by birth.
    • He was incorrectly told by the Department that his Onshore Spouse Partner visa was not valid and he had to apply offshore.
    • Subsequent attempts to remain lawfully in Australia were met with outright hostility and deception.
    • He was detained before his visa expired by officers of the Department and he and his partner were subject to bullying, threats and intimidation including psychological coerced compliance/consent techniques (Sequential Emotional Contrast Technique) which are banned under the Geneva convention.
    • Statements, facts and evidence were falsified, edited misrepresented and forged and lies were used to justify the conduct of the department and the refusal to grant further bridging visas.
    • The department has breached The Constitution of Australia, Commonwealth Law, the 1988 Privacy Act which is a matter under investigation by ACORN, Cybercrime Unit/Federal Police) and the United Nations Human Rights Charter.

Tribunal hearing

18. The Tribunal explained to the applicant that it must determine if he is a refugee or meets the complementary protection criteria in the Act. The Tribunal explained to the applicant that it must first determine if he has a well-founded fear of persecution for one more of the five grounds set out in s.5J of the Act.
19. The applicant said he has been [performing] since he was [age] years old and described himself as a professional [Occupation 1]. He said he has been living and working in [Country 1] for the past [number] years. He has no family in Germany.
20. The applicant said that he would not describe himself as religious although he was a spiritual person. He said he is not politically active. He was born in Germany to German parents. He was educated in Germany completed schooling to year [level]. He has no criminal convictions and has never had any trouble with the German authorities.
21. He had one issue with the authorities in [year] when he was [performing with a group] in Germany and the authorities did not like his [style].
22. After further questioning the applicant said that when he last returned to Germany to attend his mother’s funeral he was called a traitor. He said that he attended the Department of Works and Pension and was told he was a traitor because he had been living in [Country 1] for many years.
23. He said he could not return to Germany because he would not be able to find work and would be homeless because he has been living away from Germany for many years. The Tribunal questioned the applicant about his work history. The applicant conceded that he has never had any trouble securing work as [Occupation 1] and has been working in [Country 1] as a [Occupation 2] in different [work places]. He said he has travelled to [other] countries as [Occupation 1] without any problems. The applicant declared in his protection application that he was also employed [with] [a company in] Germany and worked as [Occupation 3] in [Country 1]. He currently still maintains his [Occupation 3] registration.
24. The applicant said that he has been provided with false information by the Department and has made a complaint to the Ombudsman which is currently under investigation.
25. The Tribunal asked the applicant to explain why he cannot travel to Germany or [Country 1]. The applicant said he cannot leave [Ms A] alone in Australia because she comes from an abusive family and her father has tried to kill her. The applicant said that he has used up all his money applying for visas to remain in Australia and does not have enough money to lodge a new application for a partner visa.
26. [Ms A] gave evidence at the hearing. [Ms A] said she is a [age] year old Australian citizen. She works in a [workplace]. She does not want to travel to Germany or [Country 1]. She is [profession] but is unable to make a living from her [work] at the present moment. She suffers from anxiety and depression. Her father is abusive and has tried to kill her. The Tribunal asked if she has made a report to the police. [Ms A] said she is afraid to report her father to the police. [Ms A] said that she has arranged to marry the applicant [in] March 2016 and are now obtaining some migration assitance.

Findings

27. The applicant entered Australia on a valid and legally issued German passport issued in his own name. The Tribunal accepts that the applicant is a national of Germany and assessed his claims against Germany as his country of nationality.
28. The Tribunal finds that since 2012 the applicant has spent approximately twenty months in Australia travelling on various [temporary] visas which have made it possible for him to live with [Ms A] in Australia. The Tribunal finds that the applicant’s last substantive visa ceased [in] October 2015 and he became an unlawful non-citizen. The Tribunal finds that the applicant only applied for the protection visa when he became an unlawful non-citizen and was placed in Immigration detention. The Tribunal finds the applicant’s migration history relevant to assessing the merits of his claims for protection in Australia.
29. Essentially, the applicant claims that he does not want to return to Germany because he travelled to Australia to be with [Ms A]. He fears that if he departs Australia it will be detrimental to [Ms A’s] mental and physical health. He has not claimed any fear of serious harm or significant harm if he was to return to Germany in the reasonably foreseeable future. He claims he has been called a traitor in Germany because he has lived in [Country 1] for many years. He fears he will be unable to find employment or accommodation in Germany.
30. The Tribunal finds the applicant a confident, articulate and resourceful person, who has worked, lived and travelled to many countries. He is an experienced [Occupation 1] and [Occupation 2]. He has a history of working in Germany and [Country 1]. The applicant has lived and worked in [Country 1] for [number] years. The Tribunal finds that Germany is part of the European Union which permits the applicant as a German citizen to travel and work in member states. According to the European Commission, “All Union citizens have the right to enter another Member State by virtue of having an identity card or valid passport. Under no circumstances can an entry or exit visa be required”.^[1]
31. The Tribunal finds that the applicant is well placed to find employment or accommodation when he returns to Germany. The Tribunal does not accept that the applicant will face significant economic hardship that threatens his capacity to subsist or that he will denied a capacity to earn a livelihood of any kind if he returns to Germany in the reasonably foreseeable future.
32. The Tribunal finds he applicant’s claim that he was called a traitor because he lived in [Country 1] vague and lacking in detail. The Tribunal does not accept the applicant’s claim that he was called a traitor because he spent time living in [Country 1] or because of his nationality.
33. The Tribunal finds there is no evidence that his nationality or his migration history would result in him facing persecution in Germany.
34. The Tribunal finds that the applicant has made no claims and provided no evidence to suggest that he is unwilling or unable to return to Germany or any other country because there is a real chance he would face persecution for reason of his race, religion, nationality, membership of a particular social group or political opinion in the reasonably foreseeable future. The Tribunal finds the applicant’s fear of persecution are not well-founded.
35. As the Tribunal has found it is not satisfied that the applicant meets the refugee criterion under section 36(2)(a) of the Act, it must consider whether the applicant meets the complementary protection criterion under section 36(2)(aa) of the Act.
36. As stated earlier in this decision record above, 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 a protection visa if he or she is a non-citizen in Australia to 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 applicant 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’).
37. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
38. Having regard to the findings of the facts above in response to specific claims made by the applicant and its findings as to his profile in Germany, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Germany there is a real risk he will suffer significant harm.
39. 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).
40. The applicant did not provide any evidence that if he were to return to Germany or any other EU country that this would likely result in significant harm as defined in s.36(2A) of the Act.
41. 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).
42. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
43. 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 the criterion in s.36(2).

DECISION

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

Christopher Smolicz
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.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

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

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

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...

---

^[1] European Commission 2009, The Schengen area and cooperation, 3 August <http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33020_en.htm>