1504221 (Refugee)

[2017] AATA 541

1504221 (Refugee) [2017] AATA 541 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504221

COUNTRY OF REFERENCE:                  Japan

MEMBER:Sean Baker

DATE:21 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 March 2017 at 2:27pm

CATCHWORDS
Refugee – Protection visa – Japan – Political opinion – Opposing gender inequality – Opposing human trafficking in Japan – Particular social group – Women – Non-conventional life choices – Request for Ministerial Intervention

LEGISLATION
Migration Act 1958, ss 36, 345, 351, 391, 417, 454, 499, 501J
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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. [The applicant] is [an age] year old Japanese citizen, born in [City 1], Saitama-Ken. The applicant (through the submissions of her representative) claims to have been defrauded by a migration agent in Australia, limiting her ability to apply for certain types of visas, specifically for a [nominated] visa, and led to a situation where she had few options for applying for visas to remain in Australia. She lodged a protection visa, and it was submitted that she opposes the gender inequality, societal discrimination against women and exploitation of victims of human trafficking in Japan and it is submitted that if she returned to Japan she would suffer economic hardship and discrimination on the basis of her gender and her political outlook. Her representative was instructed to request that the delegate refuse the application as soon as possible in order for the applicant apply for review and seek Ministerial Intervention.

2. The delegate refused the application, after confirming that the applicant wished to have the application refused and had waived her right to an interview. The delegate was not satisified that Australia had protection obligations to the applicant. The delegate went on to assess the applicant’s claims under complementary protection and found that there was no real risk of significant harm. The applicant provided a copy of the delegate’s decision with her application for review. 

3. Following the information on the Departmental file and the signed instructions from the applicant to her solicitors instructing them to waive her interview, and the conversation on [a date in] March 2017 with her [representative], who confirmed verbally that the applicant declined a hearing, understood the consequences of declining a hearing, accepted the decision would be made on the papers  would no longer be eligible for protection and would be requesting Ministerial intervention, the Tribunal has concluded that it can proceed to make a decision on the review without taking any further action to allow or enable [her] to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

4. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Identity and nationality

5. The applicant provided a certified copy of the bio-page of her Japanese passport. On the basis of this evidence I accept that the applicant is [applicant’s name], and a national of Japan, which is also her receiving country. There is no evidence before me to support a finding that she can access protection in a third country and I so find.

   Claims and findings

6. It is clear from the material on the Departmental and Tribunal files that the applicant, with the assistance of her representatives, seeks to bring her situation to the Minister for consideration under s.417. However, and as noted by her representative, this requires a decision by this Tribunal on her claims.

7. Her claims are set out in the submission of her representatives [in] January 2014. The submission highlights that the purpose of the application is to seek the intervention of the Minister. She seeks to remain in Australia where she has lived since 2011 and where she has contributed to the community with her sporting talent, warmth, kindness and eagerness to participate. The submission sets out her immigration background including that she was raised predominantly by her mother, travelled to Australia on a [temporary] visa, and has remained in the [District 1] area of Victoria which has become her home. She continued to play [her sport] in Australia, her passion, and since April 2011 has been a member of [Club 1]. She has been employed in a variety of roles, and around 2013 the applicant sought advice from her then-employer about her visa status. Her employer engaged a migration agent who lodged an application for a temporary work visa in the name of the applicant but without her knowledge or consent, which included false information and, it is claimed, the forging of her signature. This application was refused [in] December 2013 and was tainted by what the representative states they are instructed was the fraud of her then agent. The applicant was then barred from applying for many classes of visas but was unaware of this fact and subsequently lodged an application for a [nominated] visa (sponsored by the [Club 1]) which was invalid. She then was left with no option but to pursue the present application. It is claimed that the applicant has been cruelly exploited and this wrong should be redressed. She lives in [Suburb 1] and plays [her sport] in [competition] for [Club 1] and has been in talks with [her sport’s governing body] about playing at the National level.

8. The submission then moves on to set out her fears of returning to Japan. It is submitted that if she returns, she will face economic hardship and problems because of her gender and political outlook. It is claimed that life was and would be very difficult for the applicant because of her gender and political choices, as a high level sports player with non-conventional life choices, the discrimination she faces is significant. She is at odds with the prevailing Japanese world view resulting in serious consequences forcing her to live in a curtailed manner. It is claimed that the applicant is highly critical of the situation making her more likely to face these difficulties. More generally Japan is a destination and source country for women trafficked for forced labour or sexual slavery, and societal discrimination against women in employment, domestic violence and sexual harassment are also serious problems.

9. The reasons for the applicant seeking the Minister’s consideration of her case under s.417 are set out, discussed below. The submission concludes that the applicant would face significant hardship as a result of her gender and political opinion and fears long-term poverty, psychological distress and repression of her career and talents on any return to Japan, and country information supports that there are human rights issues for women. It is acknowledged that her circumstances are such that it is most appropriate for the Minister to consider her case, and the instructions of the applicant are to request that the delegate refuse the application as soon as possible so review can be sought and then the Minister’s consideration. The applicant wishes to continue playing [at a high level in her sport] and to become a legal resident of Australia. Included with the submission were Country reports dated 2013 on the situation in Japan.

10. The applicant has declined to appear before the Tribunal and has not taken up the opportunity to provide further information about her claims. The Tribunal has considered her claims to fear return and be owed protection. Had the applicant attended the hearing, the Tribunal would have questioned her about her claims that if she returns to Japan, she will face economic hardship and problems because of her gender and political outlook. The Tribunal would have asked her how her life had been difficult for her and how it would be difficult in the future because of her gender and political choices. The Tribunal would have asked about her sporting career there and her non-conventional life choices. The Tribunal would have discussed her claim that the discrimination she faces is significant. The Tribunal would have discussed the country information provided, as well as more up to date country information about the situation in Japan and her claims to be at odds with the prevailing Japanese world view, as well as the more general gender-based problems in Japan including Japan is a destination and source country for women trafficked for forced labour or sexual slavery, and societal discrimination against women in employment, domestic violence and sexual harassment are also serious problems. The tribunal would have asked what effect these things have had on her life, and her views on these things and her claimed critical views on these and other matters and why this would make her more likely to face these difficulties. The Tribunal would have asked her how she was or would be forced to live in a curtailed manner.

11. The Tribunal would have asked her whether she had been harmed in the past in Japan, whether she feared harm amounting to serious or significant harm in the future, on what basis, who she feared this harm from and whether she could access state protection to protect her from the claimed harm. The applicant has declined to attend a hearing so the Tribunal could not ask her about these things. The applicant’s claims are vague and very limited, with very little detail regarding the situation she claims leads her to fear harm on return to Japan.

12. On the basis of the very limited evidence before it, the Tribunal is not satisfied that the applicant will face economic hardship and problems because of her gender and political opinion, nor that as a high level sports player with non-conventional life choices, she would face significant discrimination, nor that any criticism she might make of the prevailing Japanese world view or culture, or the gender-based issues including trafficking and sexual servitude, domestic violence and societal (particularly employment) discrimination would lead to her being harmed, nor that she would be forced to live in a curtailed manner. On the information available to it the Tribunal does not accept that the applicant has a genuine subjective fear of serious harm from anyone for any reason if she returns to Japan, now or in the reasonably foreseeable future. On the evidence before it, the Tribunal does not accept there to be a real chance that the applicant faces serious harm amounting to persecution for any Convention reason if she returns to Japan, now or in the reasonably foreseeable future.

13. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because the person is a refugee. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. The Tribunal has considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Japan, her receiving country, there is a real risk that the applicant will suffer significant harm.

15. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from anyone for any reason if she returns to Japan, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the definition. Having found above that the Tribunal is not satisfied that the applicant will suffer harm as claimed, nor has the fears she claims, and that there is no real chance that the applicant will face persecution for any Convention reason, and having considered her claims above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Japan, there is a real risk that the applicant will suffer significant harm.

16. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

17. I have read the submission made to the Department and that made to the Tribunal, with many attached letters of support, photographs and video.

18. The submission to the Tribunal contains considerable and helpful detail on the applicant’s background and where she may meet the ministerial guidelines. The submission and the letters demonstrate that the applicant was instrumental in making a successful grant application for Australia to be involved in [an international sports leadership exchange program], which the Department of Foreign Affairs notes will foster positive working relationships between [international sporting] organisations, she has been a volunteer coach of women and girls, at [several levels], and has assisted in the growth of the sport through her advocacy, enthusiasm and skill, all of which is attested to by letters of support from coaches and managers at [several levels] and which may be indicative of unique or exceptional circumstances, namely exceptional cultural and sporting benefits would result from the applicant being permitted to remain in Australia. The submission goes on to detail other relevant information including the applicant’s history of cooperation and engagement with the department to resolve her immigration status, and the level to which she has integrated into the community since arriving in 2011.

19. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

    Conclusions

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sean Baker
    Member

    
    

    ATTACHMENT A - RELEVANT LAW

24. 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.

25. 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).

26. 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.

27. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she 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 or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

28. 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.