By Amina Youssef
An Applicant, who is a part of a family unit, must not be seen to have protection claims simply arising from his experience and detached from the experiences of members of his family unit. In cases where the applicant has a family, the court has reaffirmed the importance of assessing whether psychological harm might arise to the applicant as a result of a disruption to the unit (through separation for example), or as a result of harm that the members of the family unit might experience which is not necessarily fear that the applicant might directly have.
In a recent case, BFM16 v Minister for Immigration & Anor [2016] FCCA 2037, the court found that the Tribunal was legally unreasonable and had applied an incorrect test in concluding that the wife and child of the applicant would suffer continuing fear for their personal safety if returned to Bangladesh while the applicant would not. Both the applicant’s wife and child were from different cultural and religious backgrounds—the wife was an Australian Christian while the child was an Australian citizen.
The failure of the Tribunal arose from the fact that it failed to assess the psychological harm that the applicant might experience as a result of fear on the personal safety of the wife and child even though it accepted that their fear, although separate, was credible.
In the previous case of Minister for Immigration v SZQOT [2012] FCAFC 141, the full court accepted that an independent merits reviewer was required to assess the psychological harm that a male applicant might face if returned to Iraq without his wife and child. This was essential information for the purpose of the protection visa assessment.
The submissions relating to psychological harm as protection claims were not expressly raised before the Tribunal; however, it was sufficiently clear and arose from the material and that was enough to satisfy the court that there was a jurisdictional error committed.
Conclusively:
- If there is a family unit, do not detach the claims of the dependants from the guardian—even if the risk of harm is not directly to the guardian—and consider the psychological harm the guardian might face as a result of the risk to personal safety of the dependants or other members of the family unit.
- The other members of the family unit do not need to be on the application.
- Consider the role that these court decisions might have on Schedule 3’s “compelling reasons”—where you may be able to impute psychological harm on the applicant if separated, and where there are extraordinary circumstances that leave the applicant or the partner in a situation where they may be vulnerable or at risk.