1415692 (Refugee)

[2015] AATA 3233

1415692 (Refugee) [2015] AATA 3233 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

RRT CASE NUMBER:  1415692

COUNTRY OF REFERENCE:                  Mauritius

TRIBUNAL MEMBER:  Bruce MacCarthy

DATE:30 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 30 July 2015 at 8:18am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Mauritius, applied for the visas [in] January 2014 and the delegate refused to grant the visas [in] August 2014.

3. [In] March 2015, the first named applicant wrote to the Tribunal asking that his [child] to be included in the application before the Tribunal.  However, as the [child] was born after the decision under review there is no decision regarding [the child] before the Tribunal.  In these circumstances, the Tribunal has no jurisdiction to consider matters relating to the applicants’ [child].

4. The first-named applicant (the applicant) appeared before the Tribunal on 27 July 2015 to give evidence and present arguments.  The second named applicant (the applicant’s wife) did not attend the hearing, but the Tribunal telephoned her during the hearing and took evidence from her.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mauritian Creol and English languages.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.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.

   Refugee criterion

6. Section 36(2)(a) 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).

7. 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; ...

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition.  First, an applicant must be outside his country.  Second, an applicant must fear persecution.  Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)).  Examples of ‘serious harm’ are set out in s.91R(2) of the Act.  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.

10. Third, the persecution that the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, 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: s.91R(1)(a) of the Act.

11. 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 he has 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 probability of the persecution occurring is well below 50 per cent.

12. In addition, an applicant must be unable, or unwilling because of his fear, to avail himself of the protection of his country or countries of nationality.  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.

13. 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.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of a protection visa if he is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he will be arbitrarily deprived of his 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.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. 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: s.36(2B) of the Act.

    Section 499 Ministerial Direction

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

18. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.  Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include a spouse of the person.

    Credibility

19. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant.  When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.  However, it is not required to accept uncritically each and every assertion made by an applicant.  Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

20. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. In connection with the applications, the applicants have submitted photocopies of pages of their Mauritian passports.  Given this evidence, and evidence in the Department’s records, the Tribunal finds that the applicants are citizens of Mauritius.  Accordingly, the Tribunal will assess their claims as against that country.  There is no evidence to suggest that either applicant has any right to reside in any country other than Mauritius.

22. The applicants’ claims are set out in the application forms and other documents.  The applicant also gave oral evidence to the delegate.  A CD recording of the interview is contained in the Department’s file.  The Tribunal has listened to the recording and is satisfied that the delegate’s decision record presents a fair précis of their claims and evidence.

23. The issue in this case is whether the applicants would face harm if they returned to Mauritius because they entered into a mixed Hindu/Muslim marriage.  They claim to fear the relatives of the female applicant angered by her conversion from Islam and marriage to a Hindu.  At the hearing, the applicant confirmed that there was no other reason why he and his wife feared to return to Mauritius.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicants’ migration history

24. The applicants’ migration history is set out on page 2 of the decision record, a copy of which the applicants have provided to the Tribunal.  In brief, they were granted Subclass 572 student visas in November 2008 and arrived in Australia in December 2008.  They were subsequently granted further Subclass 572 student visas in May 2011.  The female applicant left Australia in June 2011 and returned in July 2011.  The applicants’ student visas were cancelled [in] July 2013. 

25. The Tribunal is aware that, [in] July 2013, the applicants applied to the MRT (the Migration Review Tribunal, now part of the Migration and Refugee Division of this Tribunal) for review of the decision to cancel the male applicant’s student visa.  On 12 December 2013, they were invited to appear before the MRT on 15 January 2014 to give evidence and present arguments relating to the issues arising in that case.  However, on 10 January 2014, that application was withdrawn. 

    Delay in application

26. Although the applicants arrived in Australia in December 2008, as noted above they did not apply for protection until [date] January 2014.  At the hearing, when the Tribunal raised this issue, the applicant said that when they first came to Australia he had no intention of remaining here.  He had a business in Mauritius and thought that things would settle down there and it would be safe for him to return after he completed his education in Australia.

27. However, as stated in the decision under review (provided to the Tribunal by the applicants) the applicant’s wife had returned to Mauritius in June 2011 and had come to know that her family were still opposed to the marriage.  The applicant also claimed that relatives of his wife had burnt down his business [in] September 2011.  If this were the case, the Tribunal would have expected the applicants to have sought protection soon after those alleged events.

28. Further, as also stated in the decision under review, the Department cancelled the applicant’s Student visa in July 2013 because he did not adhere to its conditions.  It would then have been apparent to the applicant that he might be required to return to Mauritius in the immediate future.  At the hearing, the Tribunal asked him if he had sought review of that decision at the MRT.  He said that he did not know whether such an application had been made indicating that he had placed everything in the hands of his migration agent.

29. As discussed with him at the hearing, in accordance with the provisions of s.424AA of the Act, the applicant applied to the MRT for review of that decision in July 2014.  In December 2014, he was invited to a hearing to discuss his application but he withdrew the application a few days before the date of the hearing.  He signed the notification of withdrawal.  The Tribunal said that this information was relevant because it would have expected him to have sought protection immediately after becoming aware of his visa might be cancelled.  The applicant again said that he did not know anything about what his agent was doing on his behalf at the time.  The Tribunal does not accept this.  Given the applicant’s evidence at the hearing that he was being represented at all relevant times by a registered migration agent, the Tribunal does not accept that the applicant would not have been made aware of what was being done on his behalf. 

    Claims of harm in Mauritius

30. the applicant has claimed that his wife’s relatives destroyed a [business] that he had established prior to his departure for Australia.  He claims that this event took place in September 2011.  He submitted to the Department a letter from one of his friends in which the friend referred to the alleged destruction of the applicant’s business.  Another letter, from the applicant’s landlord, referred to a “financial issue” which caused the applicant to struggle to pay his rent.  However, at the hearing, the applicant conceded that the writers of these 2 letters only knew about the alleged destruction of his business because he told them, and that they did not have first-hand knowledge.  The Tribunal therefore gives little weight to these letters.

31. At the hearing, the applicant said that he establish the [business] in March 2008, though it was not his own business but a family business in which he assisted.  He said he did all kinds of work in that [business] before coming to Australia in December 2008.  If this had been the case, the Tribunal would have expected him to have mentioned in his application that he had been employed in this capacity before coming to Australia.  However, in response to the relevant question in application form 866C, he said that he had never been employed.  In response to an earlier question he said that his occupational or profession before he came to Australia was that of a student. 

32. When the Tribunal discussed this with him at the hearing, he said that he had said he had never been employed because he did not regard assisting in the family business as employment.  However, the Tribunal pointed out that he had also completed a form 80 in connection with his application and the relevant question in that document made it clear that he was to give details of all employment, including periods of unemployment.  He was asked how he had occupied his time and how he supported himself.  Again, he said he had never been employed.  Had the applicant genuinely been working in a family business for 9 months before he came to Australia, the Tribunal would have expected him to have explicitly mentioned this in his application form and related documents.  At the hearing, the applicant said that he had no documents or other evidence which would confirm that he had such a business or that had been burnt down. 

33. Given the applicant’s failure to disclose any prior employment in the [business], whether as a self-employed person or as an assistant in a family business, the Tribunal is not satisfied that he owned such a business and is not satisfied that such a business was destroyed, whether by relatives of his wife or by anyone else.

34. Given this conclusion, the Tribunal is also not satisfied that relatives of his wife threatened to kill him and her.  It follows from this that the Tribunal does not accept that he took such threats to police only to have them refuse to assist him.

    Claims that the applicant’s wife was once a Muslim

35. in his original claims, the applicant asserted that, when he and his wife wanted to marry, he had to pay someone at the registry to change her birth certificate to show her as a Hindu, not a Muslim.  As set out in the decision under review, he initially said that the celebrant had told him they could not marry if they were of a different religion.  However, in submissions to the Tribunal he acknowledged that there was no legal barrier to people of different religions marrying.  He said that the celebrant had destroyed the original birth certificate and arranged for a new one to be issued.

36. At the hearing, the Tribunal pointed out that the birth certificate submitted makes no mention of the person’s religion, so there would have been no reason to change the original certificate.  He said that the certificate submitted to the Tribunal was in a new format and that earlier versions showed more information.  However, the Tribunal pointed out that the applicant’s birth certificate was in the same format.  He said that he had needed a new ID card and that the office concerned would only accept the new version of the birth certificate.

37. However, when the Tribunal asked when he applied for the new ID card he said it was in February 2008.  As the Tribunal pointed out the applicant’s birth certificate could not have been obtained for that purpose, since it was issued some months after the time when the applicant said the ID card was requested.  The applicant then said that he had an earlier birth certificate issued for the ID card, but he had obtained yet another one for the purpose of his marriage.  He said that because his wife was applying for a new birth certificate he obtained one at the same time the 2 birth certificates were issued at the same time.

1. The Tribunal does not accept these explanations.  The documents submitted by the applicant indicate that his birth certificate was issued [in] June 2008, whereas his wife’s was issued [in] August 2008.  In all of these circumstances, the Tribunal does not accept that the applicant’s wife’s birth certificate was issued in its present form in order to disguise the fact that she was a Muslim.

2. Moreover, as discussed with the applicant and his wife in accordance with the provisions of s.424AA of the Act, there is information before the Tribunal indicating that the applicant’s wife’s given name is a Hindu name.  The Tribunal obtained information from the Internet (see for example Satyabhama -Wikipedia, the free encyclopaedia at Satyabhama and Satyabhama: Krishna’s Warrior Wife downloaded from Hindu Human Rights Online News Magazine –wife) that indicates that, in Hindu religion, Satyabhama is recognised as the third wife of the Hindu god Krishna, and the second most important of his wives.

3. The applicant and his wife had previously confirmed in their application forms and the related form 80 that the applicant’s wife had never been known by any names other than her maiden name and her married name which only differ in the surname.  She confirmed this at the hearing.  The Tribunal said to the applicants that it found it difficult to believe that the applicant’s parents, if they had been devout Muslims from before the time of the applicant’s birth (as she claimed) would have named their child by a Hindu name.  The applicants did not seek more time in which to respond to this information when given the opportunity.

4. They said that it was legal in Mauritius for people to choose any name they wished for a child.  The applicant’s wife said that her parents came from different branches of Islam.  One was a Sunni Muslim and the other was a Shia.  She said that this might account for the fact that they had chosen a Hindu name.  While the Tribunal accepts that there was no legal barrier to a couple choosing any name for their child, the Tribunal does not accept that the fact that 2 devout Muslims came from different branches of Islam would explain them giving their daughter a typical Hindu name. 

5. In all the circumstances, the Tribunal is satisfied that the description on the marriage certificate of the wife as being a Hindu reflects her religious background from the time of her birth.

6. In reaching this conclusion, the Tribunal has taken note of the fact that the applicant submitted to the Tribunal a photograph of his wife wearing a headscarf and standing in a position suggesting prayer. However, it gives no weight to this photograph as there is nothing in it to suggest when or where it was taken. The Tribunal’s impression is that the photograph was taken specifically to create the impression that she was a Muslim. In the submissions made to the Tribunal to which the photograph was attached, the applicant said the photograph was taken “years ago” but, to Tribunal’s eye, the wife, as depicted in the photograph is some years older than she was in the photograph contained in her passport as issued in [2008]. The Tribunal is satisfied that the photograph was taken after the time when the applicant’s claim she had converted to being a Hindu. In the submissions, the applicant said that, when they ran away she did not take any clothes or anything with her. If, as they claim, she was no longer a Muslim after she ran away, there would be no reason for her to acquire an Islamic headscarf.

7. In reaching the conclusion in paragraph 42 above, the Tribunal also has noted that, when it took evidence from the applicant’s wife and asked her about the basic beliefs of Islam and the 5 pillars of Islam, she was able to refer to some elements of the Islamic religion, such as the fact that Muslims fast at Ramadan and believe in prophets and angels.  However it gives little weight to this knowledge, since these are facts that can be obtained with minimal research on the Internet [see for example Islam Guide: Some Basic Islamic Beliefs, downloaded from on 30 July 2015, and The Islamic Bulletin downloaded from newsletters/issue_24/beliefs.aspx on 30 July 2015].  In this regard, the Tribunal notes that the applicant did not mention such fundamental issues as Muslims being required to pray 5 times a day, the Shahada (the verbal commitment and pledge that there is no God but Allah, and Mohammed is the messenger of Allah), or the requirement to undertake pilgrimage to Mecca once in a lifetime [see the sections entitled Pillars of Islam and Pillars of Faith in The Islamic Bulletin cited above.]

8. It follows from the conclusion in paragraph 42 above, and the earlier conclusions that the Tribunal does not accept that the applicant and his wife come from different religious backgrounds.  It therefore does not accept that the parents of the applicant’s wife opposed the marriage on the grounds of religion.  In the absence of any other reason being given, the Tribunal does not accept that the parents and other relatives of the applicant’s wife are opposed to the marriage and wish to harm either applicant.

   Conclusion regarding the refugee criterion

9. The applicants has made no claims other than those discussed above.  Having rejected those claims, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore they do not satisfy the criterion set out in s.36(2)(a).

   Final conclusions

10. Having concluded that neither applicant meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  However, as the applicant’s do not claim to fear harm in Mauritius for any reason other than those discussed and rejected above, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Mauritius, there is a real risk that they will suffer significant harm.  The Tribunal is therefore not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Bruce MacCarthy
    Member