OPINION: I CAN’T BREATHE!

OPINION: I CAN’T BREATHE!

by George Botros & Jimmy Morcos

A spine-chilling plea etched into the dark history of the United States. The shocking news we are reading and watching this past week about this devastating plea came from the lips of George Floyd who died as a result of the actions of a police officer in the US. This moment should unite us against the presence of brutality, the fear of violence and persecution. But the most alarming is that the death occurred at the hands of an individual who is supposed to be a protector and to uphold the law. A police officer who is tasked with safeguarding citizens from harm and to protect life.

There is no crime that justifies this punishment. Whether he had a criminal history, was arrested on suspicion of committing a crime, there is no justification for this death. It was absolutely gut-wrenching to watch this defenseless man calling out for his mother and being denied the right to breathe, the right to live! Every soul deserves the opportunity to explore life, to breathe and no one should suffer such fate regardless of their race or religion.

As we reflect on this incident and the subsequent protests and riots across the US that the rest of the world is watching in horror, one cannot help but imagine the volume of other incidents which do not reach the attention of the global media. Whilst we do not wish to detract from the magnitude of George Floyd’s death, we also feel also obligated to raise awareness for the plight of many refugees and asylum seekers who are also unable to seek protection from the authorities in their own home countries.

For the last 10 years, we have been have been advocating for the human rights of applicants seeking protection and asylum in Australia. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The criteria for a Protection Visa are set out in the Migration Act and Migration Regulations. An applicant for the visa must meet one of the alternative criteria in section 36(2)(a), (aa), (b), or (c). That is, the applicant 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.

The Act 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, “the Refugees Convention”, or “the Convention”).

There are four key elements to the Convention definition:

First, an applicant must be outside his or her country.

Secondly, an applicant must fear persecution and the persecution must involve ‘serious harm’ to the applicant, and systematic and discriminatory conduct. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Thirdly, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, and nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

If a person is found not to meet the refugee criterion, he or she maynevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen inAustralia in respect of whom the Minister is satisfied Australia has protection obligationsbecause the Minister has substantial grounds for believing that, as a necessary andforeseeable consequence of the applicant being removed from Australia to a receivingcountry, there is a real risk that he or she will suffer significant harm (‘thecomplementary protection criterion’).

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. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.

We will never cease fighting for the rights of those who are vulnerable. Let’s all take a deep breath, unite and continue to advocate for a better world.

“Injustice anywhere is a threat to justice everywhere” (Martin Luther King Jr.)

Prepared by George Botros (MARN: 1799679) and Jimmy Morcos (MARN: 0533759)

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