V95/03543 [1996] RRTA 2514 (30 August 1996)

1 This is an application for review of a decision made by a delegate of the Minister for Immigration and Ethnic Affairs, that the applicant is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 (the Convention) as amended by Article 1 Paragraph 2 of the Protocol relating to the Status of Refugees 1967 (the Protocol); and therefore refusing to grant a Protection visa.

2 The applicant is a 31 year old man, a citizen of xx and Venezuela. He arrived in Australia in May 1989, travelling on a Venezuelan passport. His application for a protection visa was lodged with the Department of Immigration and Ethnic Affairs (the Department) on 15 December 1994. The application was rejected by a delegate of the Minister 27 June 1995.

3 The applicant applied for review of this decision to the Refugee Review Tribunal (the Tribunal) on 31 July 1995.

4 On the same day the Tribunal wrote to him acknowledging his application. On 5 September 1995 the Tribunal wrote to the applicant asking for submission, within 21 days of the letter. The applicant was reminded of the importance of advising the Tribunal of any change of address. On 1 August 1996 the Tribunal wrote to the applicant, by certified mail, setting a hearing date, 23 August 1996, and asked the applicant to respond immediately. No response was received, and the Tribunal again wrote to the applicant on 12 August 1996, using the postal address he had given in his application for review. On 19 August 1996 the letter of 12 August was returned to the Tribunal by the Post Office.

5 On 19 August the Tribunal requested the Department to check its database, for the latest address known to the Department. The residential address was the same address as had been given to the Tribunal; the postal address was care of an Immigration Agent. On 26 August the Tribunal rang the named immigration agent, to ask if he had a more recent address. The immigration agent had not had any contact with the applicant since December 1994, and had the same address as the Department and the Tribunal. A check with the Post Office showed that the letter of 1 August 1996 had not been collected.

6 Where the Tribunal is not prepared to 'make the decision most favourable to the applicant', the Tribunal must give the applicant an opportunity to appear before it to give evidence (ss 424, 425 of the Act). The Tribunal has made all reasonable efforts to locate the applicant and give him the opportunity to appear before it. However, these efforts have not been successful. Therefore the Tribunal decided to make a decision on the evidence available to it.

7 The jurisdiction of the Tribunal arises by virtue of -

(i) sub-s 414 (1) of the Act which requires the Tribunal to review an "RRT-reviewable decision" where a valid application is made under s 412;

(ii) sub-s 411 (1) (c), which defines an "RRT-reviewable decision" to include a decision to refuse to grant a protection visa.

(iii) s 412, which prescribes the criteria for a valid application.

8 I am satisfied that the jurisdictional requirements listed under paras. (i) to (iii) supra exist in this matter. ]

9 On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose.

10 The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations.

11 It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866.211 of Schedule 2 of the Regulations.

12 It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations.

13 The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl. 866.22 of Schedule 2 of the Regulations.

14 "Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

15 Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended defines a refugee as any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; . . "

16 "Well-founded fear". The test for a well-founded fear of persecution contains both a subjective and an objective component (Chan's case, at 396). Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality. There must be a "real chance" that the applicant will be persecuted for a Convention reason if he or she is returned to the country of nationality. A "real chance" is one that is substantial as distinct from remote (Chan's case, at 389, 398, 406-407); 'Obviously, a far-fetched possibility of persecution must be excluded' (per McHugh J at 429).

17 The applicant's case is set out in his application for refugee status to be found on his Departmental file, as well as information and submissions given to the Tribunal.

18 The applicant stated that he considered his true home to be xx, and that he had been persecuted there. He said he could not just move to Venezuela, as he has no family or connections there.

19 However, he arrived in Australia on a valid Venezuelan passport. He has renewed this passport since arriving in Australia. He went to Venezuela from xx in November 1988 and lived there for some six months.

20 He has indicated that he does not wish to live in Venezuela, but has not claimed that he would suffer persecution if he did live there.

21 Where an applicant has more than one nationality, Australia only has protection obligations to that person if he or she is a refugee as against all of his or her nationalities. This is a consequence of the definition of refugee in the Convention which states at Article 1(A)(2)

. . . .

'In the case of a person who has more than one nationality, the term, 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on a well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.'

22 Paragraphs 106 and 107 of the Handbook read as follows:

106. This clause [Article 1 A(2)], which is largely self-explanatory, is intended to exclude from refugee status all persons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals. Where available, national protection takes precedence over international protection.

107. In examining the case of an applicant with dual or multiple nationality, it is necessary however to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to such nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status. As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. If there is no explicit refusal of protection, absence of a reply within a reasonable time may be considered a refusal.

23 In the applicant's case it appears that the Venezuelan authorities regard him as a national, his passport has been renewed, he is able to travel in and out of Venezuela as he desires.

24 It is therefore not necessary for me to decide whether applicant has a well-founded fear of persecution in xx. He has protection available in Venezuela.

25 Based on the evidence available to me, and the findings I have made on that evidence, the applicant does not satisfy the definition of refugee in that:

Although he is outside his countries of nationality, and is unwilling to avail himself of the protection of those countries, he does not have a well-founded fear of persecution, in the sense that there is no real chance that he will be persecuted in Venezuela.

26 The Tribunal decides that the applicant is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 (the Convention) as required by sub-section 36(2) of the Migration Act 1958. Therefore the decision of the primary decision-maker, which has the effect of refusing the deemed application for a protection visa is affirmed.

[1]In accordance with s.431 of the Migration Act 1958 (C'th), (as amended),the published version of this decision does not contain any statement which may identify the applicant or any relative or other dependant of the applicant.