1. Is Larrel entitled to merits review and, if so, is the merits reviewer able to consider information which was not provided to the Department?
2. Assuming that Larrel is able to place all her claims and evidence thereof before the merits reviewer, is the merits reviewer likely to make a decision favourable to Larrel?
3. Assuming Larrel receives a final negative determination in respect of her visa application and is repatriated to Tegria, is this likely to be consistent with Australia’s international legal obligations?
4. Assuming that Larrel is granted a Safe Haven Enterprise Visa, is there any respect in which Australia could be considered nevertheless to be in breach of its Refugee Convention obligations.
The procedure to review the Protection Visa refusal decision depends on the time and the manner in which the applicant has entered into the country[1]. In case, the applicant has arrived in the country illegally by boat on or after 13 August 2012, but prior to January 1, 2014 and the applicant was not taken to any regional processing country, the application might have been processed under the Fast Track Assessment process. The Migration and Refugee Division of the Administrative Appeals Tribunal does not review the visa refusal decision of any fast track applicant but the General Division of the Administrative Appeals Tribunal [AAT] may review some of the decisions[2].
An applicant shall not be eligible for a review under the following circumstances:
The Immigration Assessment Authority [IAA] shall consider information provided in the Protection Visa application based on which the department refused the visa application[3]. However, the IAA permits the applicant to provide new information to IAA otherwise it does not consider any new information under the Migration Act 1958. Such circumstances include:
In the given case scenario, Larrel arrived in Australia by boat in early September 2013. She was neither taken to any other legal processing country after his arrival. It signifies that her visa application was being processed under the Fast Track Assessment Process.
Further, considering the eligibility criteria for review of visa refusal, she does not fit in any of the criteria that excludes a person from exercising his or her rights to review the decision of the Immigration Department. Since the Migration and Refugee Division of the Administrative Appeals Tribunal does not review the visa refusal decision of any fast track applicant, the AAT shall review her application[4].
While reviewing the decision of visa refusal, the merits reviewer shall determine the decision based on the information provided in the Protection visa provided to the Department only provided Larrel establish that her information about her social transitioning would have affected the consideration of the Department regarding her protection claims, if it was included earlier.
Conclusion
Thus, it can be said that she is entitled to review, as she did not fit in any criteria that would deny her to exercise her rights to review her decision and merit reviewer shall determine decision based on the information provided in protection department and accept new information under exceptional circumstances.
Whether Larrel is entitled to a favorable decision
In Australia, a person may apply for a protection visa that is, the Safe Haven Enterprise Visa [SHEV] if he satisfies its eligibility criteria if he has arrived in Australia illegally. The Immigration Department shall grant an applicant with the SHEV if he satisfies the character, health and security requirements of the visa otherwise the application is refused. However, if the visa application is refused, the decision of refusal shall be subjected to merit review conducted by the merit review tribunal of Australia, Administrative Appeals Tribunal [AAT].
Under the Migration Act 1958 (the Act), the term ‘refugee’ is defined as a person in Australia who is a national of their home country and has a well-founded fear of persecution due to which such person is unable or is unwilling to return to their home country for seeking protection in that country. A Protection Visa is granted when the non-citizen meets either the complementary protection criteria stipulated under section [36(2) (aa)] or refugee criteria stipulated under section [36 (2) (a)] of the Migration Act[5].
As per section 36(2)(a), the definition of ‘refugee’ shall be applicable to any particular case when the applications have been made before 16 December 2014.The Minister must be satisfied that the applicant are ‘non-citizen’ in Australia who gives rise to protection obligations under the Refugees Convention by the Refugees Protocol. According to section [36(2) (aa)] of the Act, the complementary protection criteria is granted to applicants who are although not refuges under the Act but they cannot return to their country for the fear of being persecuted and infliction of significant harm, giving rise to the protection obligation of the country[6]. Although it does not refer the protection obligation of the county under the human rights instruments, it purports to provide a mechanism that enhances the integrity of Australia’s arrangements for meeting its non-refoulement obligations under Second Optional Protocol, CAT, ICCPR and CROC[7].
The visa applicant is required to establish that the applicant has a fear of being persecuted if they are sent back to their home country, giving rise to protection obligations of the country. The five grounds based on which a person fears of being persecuted for serious harm inflicted on him are as follows:
The applicant must have a well-founded fear of being persecuted on the above five grounds[8]. The Migration Act 1958 states that a person has well-founded fear of persecution under following circumstances:
The ‘significant harm’ caused to the visa applicant includes:
The discriminatory conduct against the applicant may take place if the applicant is a member of any particular group and such discrimination may seclude the applicant from the rest of the community. Further, there must be a ‘real chance’ that the person shall be persecuted in near future if he is returned to his home country.
In regards to the particular social group, the applicant must establish that he is a member of particular social group, which refers to:
However, as per the Migration Act, a person may not have a well-founded fear of persecution if they undertake reasonable steps to modify such behavior in order to avert the chance of being persecuted in his home country provided such modified behavior does not have to alter or conceal their gender identity[9].
While reviewing any Visa refusal decision, the merit-reviewer must be satisfied that the applicant is a non-citizen and engages protection obligation in respect of refugee criteria stipulated under section [36(2) (a)] or the complementary protection criteria under section [36(2)(aa)] of the Act. Further, as mentioned earlier, that the IAA shall assess the decision based on the information provided in the Protection visa. However, only if the applicant can satisfy that the new information, if provided before, would have affected the consideration of the Immigration department regarding her protection claims, it shall be considered.
In the given scenario, if Larrel wishes to obtain a favorable decision from the merit reviewer, it is important that she satisfy that she has a well-founded fear of being persecuted if she is returned to her country. In order to grant a Protection visa to Larrel, the merit reviewer must be satisfied that Larrel is entitled to protection visa. Firstly, the reviewer must be satisfied that her protection claims give rise to protection obligation of the country under the complementary protection or refugee criteria set out in section [36 (2) (aa)] and section [36(2)(a)] of the Migration Act 1958. Since she has applied before 13 December 2014, she must satisfy that her protection claims engages the protection obligation of the country.
Secondly, the reviewer will determine whether Larrel has a well-founded fear of persecution on any of the five grounds that give rise to protection obligations of the country. Larrel must state that despite being a male biologically; she believes herself to be a female and behaves as one, which implies that she belonged to the LGBTQ group, which is a particular social group, and such particular group is not acceptable in her home country Tegria.
Thirdly, the merit viewer must be satisfied that her well-founded fear of persecution is based on the ground of membership in a particular social group like LGBTQ. Such membership in a particular social group is not acceptable in Tegria and it forms a significant reason for persecution. The decision-maker must be satisfied that this fear of persecution on ground of membership in particular social group is associated with all the areas of the country and forms a significant risk of harm to her, if she is returned.
Fourthly, the decision-maker must be satisfied that there is no chance for her to modify her behavior to avoid persecution in Tegria as that would amount to concealment of her gender identity. Further, the decision-maker should be convinced that Larrel possesses a characteristic that is separate from the rest of the communities in Tegria and for which she cannot be forced to renounce it as well.
Lastly, it must established that Larrel shall be subjected to discrimination if returned to Tegria and there is a ‘real chance’ of being subjected to significant harm like significant physical ill treatment or harassment of the person; denial of earning livelihood; denying access to basic services that threatens the ability of the person to survive, victimization and discrimination.
Conclusion
If the merit reviewer is satisfied, that Larrel’s well-founded fear of persecution gives rise to protection obligation of the country and it would cause her significant risk, thus, threatening the survival of Larrel in Tegria, if removed from the country. Under such circumstances, the merit reviewer is likely to make a decision favorable to Larrel and may grant complementary protection under [section 36(2) (aa)] of the Act. She must also satisfy in addition, that she does not possess any risk to the security of the country under section 36(1B) of the Act.
Is repatriation of Larrel consistent with Australia’s Legal obligations?
Australia is a signatory to the Refugee Convention and the Migration Act incorporated the definition of ‘refugee’ stipulated in the Convention into its domestic law, which enforced the obligation of non-refoulment on the country[10]. This implies that the country is obligated not to return a refugee to the country or territories where the life of the person shall be threatened on grounds of race, nationality, religion and membership in any particular social group[11].
According to section 36(2) of the Act, protection visa is granted to ‘non-citizens’ of Minister is satisfied that the person gives rise to protection obligation under the Refugees Convention as per amendments of Refugees Protocol. The term ‘persecuted’ defined under Article [1A(2)] of the Refugee Convention is qualified by section [91R(1)] of the Migration Act that states that ‘persecution’ shall be established if there is significant reason which involves serious harm as well as discriminatory and systematic conduct. Significant ill-treatment physically and denial of services to earn livelihood, threatening survival of the person shall amount to significant harm as per section [91R (2)] of the Act[12].
In this case, if Larrel is repatriated to her home country Tegria, it will be inconsistent with the international legal obligation of the country, as it would breach the obligation of non-refoulment that is enforced in Australia as an effect of the incorporation of article stipulated in the Refugee Convention in its domestic law.
As per Article 1A(2) of the Convention, Larrel has a fear of being persecuted on grounds of membership in particular group like LGBT in Tegria and it forms a significant reason of persecution which may cause her significant harm to the extent of denial of earning livelihood, threatening her survival.
Conclusion
Therefore, repatriating Larrel to Tegria where she has a well-founded fear of persecution and is likely to subjected to significant harm under section [91R (2)] amounts to a breach of obligation of non-refoulment and its international legal obligation.
Does Australia violate its Refugee Convention obligations if Larrel is granted Safe Haven Enterprise Visa?
As per section [1A(2)] of the Refugee Convention, a visa applicant who establishes that he or she is unwilling or unable to return to his home country for the fear of being persecuted on the grounds of race, nationality or membership in particular social group, Australia must not return the person to his or her home country[13].
The fear of persecution and causing of significant harm on the grounds of membership in particular social group is qualified by section [91R and 91S] of the Act[14]. The Safe Haven Enterprise Visa is a protection visa granted to those who arrived in Australia illegally and claims protection for the fear of persecution, which must give rise to protection obligations of the country.
Since Larrel has been granted the Safe Haven Enterprise visa which implies that she has satisfied the decision-maker that her fear of being persecuted on grounds of belonging to a particular social group like LGBTQ that shall not be acceptable in Tegria, her homeland. Her persecution was a significant reason that would cause her significant harm and subject her to systematic and discriminatory conduct. This is consistent with Article 1A (2) of the Refugee Convention which is further qualified by section [91R (1)] of the Migration Act.
Conclusion
Hence, it can be stated that Australia has been consistent with the refugee definition stipulated under section [1A(2)] of the Convention and has granted her protection visa to safeguard her from being persecuted on grounds of belonging to a particular membership group like LGBTQ in Tegria.
References
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Brysk, Alison. “2. Contracting the refugee regime: the global citizenship gap.” Contracting Human Rights: Crisis, Accountability, and Opportunity (2018): 9.
Crock, Mary, and Kate Bones. “Australian exceptionalism: temporary protection and the rights of refugees.” Melb. J. Int’l L. 16 (2015): 522.
Harvey, Colin. “Time for reform? Refugees, asylum-seekers, and protection under International Human Rights Law.” Refugee Survey Quarterly 34.1 (2015): 43-60.
Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global perspective. Stanford University Press, 2014.
Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library, 2016.
Killedar, Anagha, and Patrick Harris. “Australia’s refugee policies and their health impact: a review of the evidence and recommendations for the Australian Government.” Australian and New Zealand journal of public health 41.4 (2017): 335-337.
Koser, Khalid. “Australia and the 1951 Refugee Convention.” (2015).
McAdam, Jane. “The enduring relevance of the 1951 refugee convention.” (2017): 1-9.
McDonald, Douglas. “Freedom to Be: Assessing the Claims of LGBTQ Asylum Seekers.” Socio-Legal Rev. 10 (2014): 35.
Mishra, Devershi, and Komal Khare. “Responsibility of the first world nations to protect refugees: non-refoulement as an obligation erga omnes.” LSE Human Rights Blog (2017).
Morales, Katelin. “Australia’s Guantanamo Bay: How Australian Migration Laws Violate The United Nations Convention Against Torture.” Am. U. Int’l L. Rev. 31 (2016): 327.
Raj, Senthorun. “A/Effective Adjudications: Queer Refugees and the Law.” Journal of Intercultural Studies 38.4 (2017): 453-468.
“Refusal Of A Temporary Protection Visa Or Safe Haven Enterprise Visa Application.” Homeaffairs.gov.au. N.p., 2018. Web. 21 Mar. 2018.
Spijkerboer, Thomas. Gender and refugee status. Routledge, 2017.
Weissbrodt, David, Laura Danielson, and Howard Myers. Immigration law and procedure in a nutshell. West Academic, 2017.
[1] Weissbrodt, David, Laura Danielson, and Howard Myers. Immigration law and procedure in a nutshell. West Academic, 2017.
[2] Karlsen, Elibritt. Refugee resettlement to Australia: what are the facts?. Parliamentary Library, 2016.
[3] Hollifield, James, Philip L. Martin, and Pia Orrenius, eds. Controlling immigration: A global perspective. Stanford University Press, 2014.
[4] “Refusal Of A Temporary Protection Visa Or Safe Haven Enterprise Visa Application.” Homeaffairs.gov.au. N.p., 2018. Web. 21 Mar. 2018.
[5] Migration Act 1958 at section [36(2) (a)] and [36(2) (aa)].
[6] Koser, Khalid. “Australia and the 1951 Refugee Convention.” (2015).
[7] “Refusal Of A Temporary Protection Visa Or Safe Haven Enterprise Visa Application.” Homeaffairs.gov.au. N.p., 2018. Web. 21 Mar. 2018.
[8] “Refusal Of A Temporary Protection Visa Or Safe Haven Enterprise Visa Application.” Homeaffairs.gov.au. N.p., 2018. Web. 21 Mar. 2018.
[9] McDonald, Douglas. “Freedom to Be: Assessing the Claims of LGBTQ Asylum Seekers.” Socio-Legal Rev. 10 (2014): 35.
[10] Spijkerboer, Thomas. Gender and refugee status. Routledge, 2017.
[11] Koser, Khalid. “Australia and the 1951 Refugee Convention.” (2015).
[12] Migration Act 1958 at section [91R (2)].
[13] McAdam, Jane. “The enduring relevance of the 1951 refugee convention.” (2017): 1-9.
[14] Migration Act 1958 at section [91R] [91S].
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