Case Scenarion on Refugee Protection-Free-Samples for Students

Question: Discuss about the Case Scenarion on Refugee Protection. Answer: Introduction Australia has a refugee and humanitarian program that entitles persons already in Australia to apply for protection or asylum. The underlying factor to be considered in granting a protection visa is the manner in which the said individual or asylum seeker arrived in Australia. The Migration Act 1958 describes refugees as persons who are out of their home country and are afraid to return due to a well-founded fear of persecution as a result of race, political opinion, and religion, membership of a social group or nationality[1]. Though Dain did not arrive in Australia as a refugee, circumstances have changed in his home country, Gethaysia, and he fears going back home due to his condition which has been associated with devil worshipping. Change of circumstances, therefore, makes him a refugee in Australia. Australia is therefore obliged, in compliance with the Refugee convention to provide a protection visa to Dain which ensures that he is not returned to Gethaysia for fear of persecution for being associated with a certain social group as provided for under the Migration Act 1958. The hurdles that Dain is likely to be faced with in his application for protection are numerous, but he is capable of overcoming them. The most basic hurdle will be to bring himself and situation under the definition of a refugee[2]. The description and interpretation of who qualifies or can be referred to as a refugee was discussed in the High Court interpretation of the case of Chan (1989) and Ibrahim (2000). Dain, therefore, has to fall within the interpretation given in Chan (1989) and Ibrahim (2000) to access protection under the Migration Act 1958. The criteria for awarding a protection visa is provided under the Act[3] and is to the effect that every applicant for the said visa has to be a non citizen to whom a protection obligation is owed by Australia in accordance with the Refugee Convention and the subsequent amendment by the refugee protocol. The circumstances and happenings in Gethaysia in addition to the condition of Dain makes him an asylum seeker which is however not automatic. He has to prove the fear of persecution and imminent danger of harm on return[4]. There is a requirement that the individual must have arrived in Australia legally and has since engaged in Australias protection obligations. A protection visa entitles the applicant to live and work for gain in Australia as a permanent resident. Dain is capable of making a valid application for protection visa having arrived in Australia legally. He can apply for protection visa class XA (subclass 866) which will allow him to live and work in Australia permanently and therefore; he will not return to any form of denouncement due to heterochromia iridium in Gethaysia. Dain will be required to prepare and lodge his visa application by himself. He can also get assistance from migration agents, some exempt persons as well as advice from a government-funded scheme, the Immigration Advice and Application Assistance Scheme (IAAAS).[5] Before processing the application for a protection visa, Dain will be required to undergo health examination to protect his health and those of the Australian Community. The said health examinations are conducted by the Bupa Medical Visa Services which gives the applicant an identifier Identity Card. The only hurdle in successfully going through a health examination is the medical fees required to conduct the examination. However, Dain has been a resident of Australia, has made so many friends who can assist in helping him pay the medical examination fees.[6] The requirement as to the cost of acquiring a protection visa is also likely to pose a great challenge to Dain. Every applicant for a protection visa is required to pay up to AUD 35. Raising this money can be a challenge to Dain since he is still a student with no source of income. An applicant who does not pay the prescribed fee will have his application declined as invalid. However, there is a provision that the said amount can be paid by installments, a requirement which Dain can use to pay for the protection visa. Dain can also obtain assistance from the numerous friends he has made in Australia to assist him in paying the requisite fees required for grant of a protection visa.[7] There are character requirements that have to be met by Dain when applying for a protection visa. To ascertain the character traits of every applicant for a protection visa, an applicant is required to submit a police clearance certificate obtained from every country the applicant has lived for twelve (12) months in the last ten years preceding application for a visa and after the applicant turned 16 years old. The Immigration officials, however, have to ask the applicant for the police certificate before arrangements to procure and submit it to the immigration officials is done.[8] The decision to ask for a police certificate is determined on a case by case basis. The decision is informed by the reasons for seeking protection contained in the application form. Assuming that Dain is asked to provide a police certificate, it will be a big blow since he is afraid of going back to Gethaysia as his condition is associated with devil worshiping and he is likely to be killed. The immigration officials are unlikely to ask him for the police clearance certificate since it will be impossible to go back to Gethysia to process it.[9] Dain is likely to be exempted from providing the police certificate, and the character can be as well ascertained from confidential reports obtained from La Trobe University administration. There are also requirements as to identity. An applicant is required to give true and complete information about their identity, the nationality, and their citizenship. Dain might be faced with the challenge of obtaining authentic identity documents. There is information that the father is a Lostoewana citizen. This might pose a problem as to his identity and nationality especially if the father is traced and he claims paternity. The only information that Dain has to confirm his identity and nationality is the information from his mother. Since Dain was young and has not seen his father ever, it is only justifiable to conclude that he believed that he is a citizen of Gethysia on the information provided by the mother. There is, therefore, a possibility that Dain falls under the provisions of section 91M which permits a person capable of getting protection from a third country due to factors such as nationality or any other right that permits them to re-enter and reside in the third country. Application for protection visa can be declined on this ground and the applicant required to seek protection from the third country. However, Dain can overcome this hurdle by advancing the argument based on the provisions of the Act[10] because he has never resided in the third country even for a single day. He was born in Gethysia and has never set foot in the third county, Lostoewana. Dain has to satisfy the criteria for an award of a protection visa as stipulated under the Act[11].Dain falls under the description in section 36 (2) (aa). He, however, has the burden of proving the risk of and the probability of suffering significant harm. An individual would suffer significant harm where, as provided under section 36 (2A)[12], if: The individual is likely to be deprived of life arbitrarily A death penalty will be preferred on the individual The individual is likely to be subjected to torture, cruel or inhuman treatment or degrading punishment or treatment The treatment given to persons who possess the condition described as heterochromia iridium in Little Chailask falls within the criteria described in section 36 (2A). Such persons are accused of devil worshiping and are killed on the said accusations. Dain, therefore, satisfies the criteria for the award of a protection visa but the burden of proof lies on him to justify the claims and provide an authenticated source and evidence of his claims. Though the acquisition of evidence can be challenging, Dain can contact and rely on the information provided by the editor of the online version of Gethysias national daily newspaper to substantiate the claims of substantial harm. In the case of Minister of Immigration and Citizenship v SZQRB (2013) FCAFC 33, the minister for immigration was restrained from removing the asylum seeker to Afghanistan pending the legal assessment of his claims of perceived inhuman and torture treatment in Afghanistan. The court held that international Treaty Obligations had been affected by the jurisdiction error since the wrong legal test had been applied thus denying the applicant procedural fairness[13]. Therefore, an applicant for protection whose visa has been denied has recourse to apply to the court to have such decision reviewed. The agent of persecution in the case of Dain is the state. The state has even enacted an act of parliament referred to as the Protection of True Faith Act 1950 which protects persons who torture or kill persons suspected to be Satanist or devil worshippers. This is a ground that Dain can cling on as it supports his claim of persecution on return. The fact that Gethysia is a small country with a population of about 8 million makes it very easy for Dain to be identified and subjected to torture and degrading treatment. The government does not offer protection to victims but to persons accused of torturing others. There are no effective protection measures that the Minister for immigration can allege to exist in Gethyasia since the state is and forms part of the agents and perpetrators of inhuman treatment.[14] A permanent protection visa entitles the applicant to permanent residence within Australia, to work and study, enrolment in Australias Medicare, application for Australian citizenship upon qualification; travel to and from Australia and to sponsor relatives for residence in Australia provided that they are eligible. Dain, however, is required upon a successful grant of the protection visa to comply and observe all the protection visa conditions and obligations that the visa puts on him. A complaint of assault is a criminal offense that is categorized as very serious in Australia. A refugee who commits or is accused of having committed a criminal offense in Australia can be removed or deported from Australia, and their visas canceled by character grounds. The circumstances that warrant cancellation are set out under section 203 of the Migration Act 1958. Dains protection visa is likely to be canceled and be deported back to the country of origin. The Minister for Immigration has the powers under the Act [15] to deport a non-citizen accused of committing serious criminal offenses. Dain falls within the definition of a non-citizen because he had only acquired the protection visa class XA but had not applied to be granted Australian Citizenship. The deportation is justified by the fact that the person subject to deportation threatens national security. The visa is then canceled under the provisions of the Act[16] and removal of the person from Australia. Dain will be said to have failed the test as to character which therefore warrants the cancellation of his visa. The grounds that warrant a person to be said to have failed the character test include: The individual found to be having a substantial criminal record The individual has been convicted of any criminal offense There is suspicion that the individual has associated or is in association with someone accused of having committed a criminal offense The minister determines that the individual seems to be of bad character The minister believes that the individual if left in Australia is likely to engage in other criminal incidences and acts The effect of cancellation of a visa renders the person a non-citizen. The person cannot, therefore, be eligible to apply for another protection visa under section under section 48A[17]. However, the Minister can decide to lift the ban under the provisions of section 48B of the Migration Act which will afford the person an opportunity to apply for another protection visa. The provisions of section 48B are however applied discretionary by the minister, and the individual is not guaranteed that the minister might make a personal decision allowing him to apply for another protection visa. Where the immigration department decides to cancel a visa like in the case of Dain, he can apply and present his grievance before the Administrative Appeals Tribunal (AAT) for the decision to be reviewed on its merits. Such application to the AAT should, however, be made within nine days after receiving the notification of a visa cancellation under section 501 of the Migration Act 1958. Where an individual is not satisfied with the decision of the AAT, he can apply to the federal court as was in the case of Minister of Immigration and Citizenship v SZQRB (2013) FCAFC 33, the minister for immigration was restrained from removing the asylum seeker to Afghanistan pending the legal assessment of his claims of perceived inhuman and torture treatment in Afghanistan. The court held that international Treaty Obligations had been affected by the jurisdiction error since the wrong legal test had been applied thus denying the applicant procedural fairness[18]. Therefore, the consequences likely to be visited on Dain include visa cancellation and deportation. Where the Australian department decides to deport Dain, it will be inconsistent with international law on the treatment of refugees especially the principle of non refoulement. Countries have an obligation not to send refugees back to their countries where they have a well-founded fear of being subjected to inhuman treatment on the basis of religion, race, political opinion, membership of a social group or nationality. Cancellation of refugee visas under section 501 of the Migration Act 1958 therefore goes against the provisions of section 33 (2)[19] of the Refugee convention that places an obligation on states to protect the rights of asylum seekers. In addition to the Refugee Convention, Australia is also bound by other human rights treaties especially the International convention on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (CAT).[20] Therefore, the visa cancellation or deportation of Dain for breach of visa conditions or obligations, therefore, is inconsistent with Australian international obligations under the Refugee Convention, ICCPR, and CAT. Conclusion In conclusion, therefore, Dain fits within the definition of a refugee as provided under section 5 of the Migration Act 1958. He can, therefore, apply and obtain a protection visa class AX (Subclass 866) which will allow him to stay permanently in Australia and work in the country. However, if he engages in criminal acts or omissions, the said protection visa can be canceled by the Minister for Immigration under section 48A. International treaties do not offer effective protection to Dain as states can act against the Refugee Convention, ICCPR or CAT especially where the asylum seeker is a threat to the security of the said state. References Allain, Jean. "The jus cogens Nature of non?refoulement."International Journal of Refugee Law13.4 (2001): 533-558. Catrina Cook, Laying Down the Law (Cambridge University Press, 2014) Crock, Mary.Immigration and refugee law in Australia (Federation Press, 2008) Dauvergne, Catherine.Making people illegal: What globalization means for migration and law (Cambridge University Press, 2008) Duffy, Aoife. "Expulsion to face torture? Non-refoulement in international law"International Journal of Refugee Law20.3 (2008): 373-390. Feller, Erika, Volker Trk, and Frances Nicholson, eds.Refugee protection in international law: UNHCR's global consultations on international protection. (Cambridge University Press, 2003) Foster, Michelle.International refugee law and socio-economic rights: refuge from deprivation. Vol. 51 (Cambridge University Press, 2007) Goodwin-Gill, Guy S. "The right to seek asylum: Interception at sea and the principle of non-refoulement."International Journal of Refugee Law23.3 (2011): 443-457. Goodwin-Gill, Guy S., and Jane McAdamThe refugee in international law (Oxford University Press, 2007) Lambert, Helene. "International refugee law" (Cambridge University Press, 2010) McAdam, Jane. "Complementary protection in international refugee law"Order60 (Oxford University Press, 2007) McFerran, Ludo.Taking back the castle: how Australia is making the home safer for women and children. Australian Domestic Family Violence (Clearinghouse, UNSW, 2007) Stephen Hall, Principles of International Law, (Lexis Nexis, 2016) Williams, George.The case for an Australian Bill of Rights: freedom in the war on terror. (UNSW Press, 2004) White, Derek N., et al. "International Refugee Law."Int'l Law.47 (2013): 349. List of Cases Minister of Immigration and Citizenship v SZQRB (2013) FCAFC 3 List of Acts and Conventions Migration Act 1958 Protection of True Faith Act 1950 Convention against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) International convention on Civil and Political Rights (ICCPR) Crock, Mary.Immigration and refugee law in Australia (Federation Press, 2008) 31 Migration Act 1958 s 5 Migration Act 1958 s 36(2) Foster, Michelle.International refugee law and socio-economic rights: refuge from deprivation. Vol. 51 (Cambridge University Press, 2007) 23 Foster, Michelle.International refugee law and socio-economic rights: refuge from deprivation. Vol. 51 (Cambridge University Press, 2007) 75 Dauvergne, Catherine.Making people illegal: What globalization means for migration and law (Cambridge University Press, 2008) 7 McAdam, Jane, Complementary protection in international refugee law Order60 (2007) 48 Lambert, Helene, International refugee law (2010) 27 McFerran, Ludo.Taking back the castle: how Australia is making the home safer for women and children. Australian Domestic Family Violence (Clearinghouse, UNSW, 2007) 12 Migration Act 1958 s 91N (2) (b) Migration Act 1958 s 36 Migration Act 1958 Minister of Immigration and Citizenship v SZQRB (2013) FCAFC 33 Goodwin-Gill, Guy S., and Jane McAdamThe refugee in international law (Oxford University Press, 2007)4 Migration Act 1958 s 202 203 Migration Act 1958 s 501 Migration Act 1958 s 48A Minister of Immigration and Citizenship v SZQRB (2013) FCAFC 33 International Convention Williams, George.The case for an Australian Bill of Rights: freedom in the war on terror. (UNSW Press, 2004)