1600202 (Refugee)

[2018] AATA 573

1600202 (Refugee) [2018] AATA 573 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600202

COUNTRY OF REFERENCE:                  Cambodia

MEMBER:Jason Pennell

DATE:7 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

Statement made on 7 March 2018 at 4.51pm

CATCHWORDS
Refugee – Protection Visa – Cambodia – Fear of harm from an individual – Police officer – Applicant did not attend hearing – Limited evidence of claims

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 426A, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 [in] December 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa [in] April 2014. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia has protection obligations as outlined in s.36(2)(a) and s.36(2)(aa) of the Act..

3.By a letter dated 13 February 2018 the Tribunal invited the applicant to attend a hearing on 7 March 2018 to give evidence and present arguments in relation to her application for review of the delegates decision to refuse to grant a protection visa. By a letter dated 5 March 2018 the applicant advised the Tribunal that she would not attend the hearing on 7 March 208.  

4.The applicant was represented in relation to the review by her registered migration agent.

5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

6.Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a protection visa.

Refugee criterion

7.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 Refugees Convention.

8.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:[1]

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.

1.The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

2.

9.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.

10.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11.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)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: 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.

12.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.

13.Third, the persecution which 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.

14.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 fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.

15.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.

16.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

17.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’).

18.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19.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

Member of the same family unit

20.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. 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 spouse.

CLAIMS AND EVIDENCE

21.The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

The application

22.In her application the applicant states that she was born on [birth date] in [a particular city in] Cambodia and that she has been a citizen of that country since birth.  She states that she is of Khmer ethnicity and a Buddhist and that she speaks, reads and writes Khmer.  The applicant’s first husband passed away in 1985 and their [children] all reside in Cambodia with her family. [In] June 2011 she married [Mr A] (an Australian Citizen) in [a particular Australian city].

23.The applicant travelled to Australia [in] April 2010 on a Cambodian [passport] issued [in] 2010 as a holder of a [temporary] visa granted [in] March 2010 and which ceased [in] July 2010. [In] October 2011, the applicant lodged a request to have the 8503 condition associated with her visa waived, to apply for a spouse visa in Australia. This request was refused [in] November 2011.

24.The applicant became an unlawful non-citizen when she failed to depart Australia after the cessations of her [temporary] visa.

25.[In] April 2014 the applicant lodged the current protection visa application and was granted a bridging visa C.

26.The applicant’s protection claims are contained in her visa application dated [in] April 2014 and are as follows:

I am seeking protection in Australia so that I do not have to go back to Cambodia.

Why did you leave that country?

To find safety and to escape from being intimidated and death threat.

Have you experienced harm in that country?

I have had experienced harm from a local police officer who wrongly use his power to threaten me and had made many death threats. He borrowed money form me and he got angry when I asked him for my money back with interest.

What do you fear may happen if you go back to that country?

If I go back, the same policeman will do me harm. He will continue intimidate and threaten to kill me.

Who do you think may harm/ mistreat you if you go back?

I am still vulnerable and no-one would provide protection to me.

Why do you think this will happen if you go back?

The police officer will not stop his attempt to stop me from doing my everyday business and I know that he has network in Cambodia where I would not be able to find safety.

Do you think the authorities of that country will protect you if you go back?  If not, why not?

No. The authority does not and will never protect normal citizen like me.

27.The applicant provided the following documentation to the department in support of her application:

(a)  Copy of her [passport] from the Kingdom of Cambodia.

(b)  Copy of [Mr A]’s [passport] from Australia.

(c)  Copy of Commonwealth of Australia Certificate of Marriage between the applicant and [Mr A] dated [in] June 2011.

(d)  Certified copy of Registry of Birth Deaths and Marriages Certificate of Marriage between the applicant and [Mr A] dated [in] June 2011.

(e)  Notes from [a doctor] dated [in] July 2011 and [September] 2012.

(f)   [Mr A]’s [medical] report dated [in] April 2011.

(g)  Certificate of Australian citizenship of [Mr A] dated [in] 1980.

(h)  Certificate of Divorce between [Mr A] and [an individual] dated [in] 2008

The review application

1. The applicants sought a review from the delegate's decision dated [in] December 2015 from this Tribunal on 7 January 2016. In that review application the applicants appointed a representative to act on their behalf, however the review application contained no other new information.

2. On 13 February 2018 the Tribunal wrote to the applicants through their appointed representative advising them that it had considered the material before it but was unable to make a favourable decision on this information alone and inviting them to appear before the Tribunal on 7 March 2018 to give evidence and present arguments in support of the review application.  By a letter dated 5 March 2018 the applicant’s representative advised the tribunal that the applicant would not be attending the hearing on 7 March 208. The applicant and her representative did not attend the scheduled hearing.

3. In these circumstances, and pursuant to section 426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

FINDINGS AND REASONS

1. As the applicant did not attend the hearing, the Tribunal was denied an opportunity to test her claims.  The Tribunal understands the applicant’s claims to arise out of circumstances where she had lent money to a police officer. Her claim is in essence that when she asked for the money to be paid back he intimidated her and threated to kill her. The applicant claims fear in the event that she returns to Cambodia from the police officer. She states that she fears the police officer will do her harm by continuing to intimidate and threatening to kill her. In addition, she claims that he will stop her from doing her ‘everyday business.’

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  It remains for the applicants to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[2]

   [2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

3. The Tribunal considers the applicant’s claims to be vague and lacking in detail.  In particular she does not provide any details of how the money was lent to the police officer. The applicant has not provided the tribunal with any details of the terms of the loan to the police officer, including the period of loan, the interest rate (if any) and principle amount advanced to the police officer. In addition she does not provide any details as to the arrangements originally made for the repayment of those moneys or the manner in which those arrangements are now said to have changed. In addition, the applicant has failed to provide any details of how she says the police officer intimidated her and/or threatened to kill her, including where and when such threats were made and on how many occasions.

4. Therefore, on the basis of the very limited evidence before it, the Tribunal cannot be satisfied that the applicant has suffered harm or been mistreatment in the past, or that she faces any harm or mistreatment in the foreseeable future.  Therefore, the Tribunal does not accept that the applicant faces ‘serious harm’ that would amount to persecution as claimed by the applicant. 

5. The Tribunal notes that even if it had been satisfied as to the factual matters underpinning the applicant’s claims, the Tribunal is not satisfied that the essential and significant reason for the persecution the applicant claims to fear is due to her race, religion, nationality, political opinion or membership of a particular social group. 

6. Having considered the applicant’s claim, the Tribunal finds that there is no real chance that she will face persecution for any of the Convention reasons if she was to return to Cambodia now or in the reasonably foreseeable future.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.  As such, it is not necessary for the Tribunal to consider whether it might be reasonable for the applicant to relocate to another part of Cambodia where she might be protected.

   Complementary protection

7. The Tribunal also 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 a receiving country, there is a real risk that she will suffer significant harm.

8. A real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal. The risk must be assessed on grounds that go beyond mere theory or suspicion but does not have to meet the test of being highly probable. The danger of harm must be personal and present.

9. For the reasons set out above, the Tribunal has not accepted that the applicant has suffered harm or mistreatment in the past, or that she faces such harm or mistreatment in the foreseeable future.  On the very limited evidence before it, 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 Cambodia, there is a real risk that the applicant will suffer significant harm.

CONCLUSIONS

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that she is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As she does not satisfy the criteria for a protection visa, she cannot be granted the visa.

2. 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).

3. As the Tribunal has found that the applicant is not a person who satisfies s.36(2)(a) or (aa), it follows that she cannot can satisfy the criterion in s.36(2) for a protection visa on the basis of being a member of the same family unit as the other. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as any other person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2) for a protection visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

   Jason Pennell
   Member