1605244 (Refugee)

[2019] AATA 3959

1605244 (Refugee) [2019] AATA 3959 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605244

COUNTRY OF REFERENCE:                  Peru

MEMBER:Penelope Hunter

DATE:11 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2019 at 4:44pm

CATCHWORDS

REFUGEE – protection visa – Peru – particular social group – returnee from a wealthy country – threats to life – extortion – threats to family – delay in applying for protection – multiple inconsistencies in evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 417, 438, 499

Migration Regulation 1994 (Cth), Schedule 2

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Peru, applied for the visa on 15 September 2014 and the delegate refused to grant the visa on 6 April 2016.

   BACKGROUND AND CLAIMS

   Information contained in the Department File

3. The applicant is a [age] year old male, who was born in Lima, Peru. He speaks, reads and writes Spanish and English. He received 16 years education in Peru and training as a [Occupation 1]. The applicant worked as a [Occupation 1] from 1992 until 2008.

4. The applicant first arrived in Australia [in] May 2009 on a TU -570 Student visa, this visa expired [in] February 2010. [In] April 2011 the applicant applied for a Remaining Relative visa (BU 835), which was refused by the Department [in] December 2012. The applicant sought a review of that decision before the Migration Review Tribunal which was affirmed [In] August 2013. [In] September 2013 the applicant made an application for Ministerial Intervention, and that application was refused [In] August 2014. [In] September 2014, the applicant applied for the Protection visa under review.

5. In a statement the accompanied his application the applicant set out his claims as follows;

   i.While in Australia he has been subject to threats from Peru. He had heard of many incidents happening in Peru and that his life would be in danger if he returned to the country.

   ii.He received bad news from his aunt in Peru, some months prior to September 2014. Some criminals had called her and asked for money saying that the applicant had taken contraband things and he was detained in Peru customs. She was told she had to take US $[amount] so that he could be freed.

   iii.His aunt managed to raise the money and then called the applicant only to discover that he was in Australia. She told him that the criminals had used his full name and told her where the applicant had lived in [Australia]. They had even pretended to use the applicant’s voice to plead with his aunt for money.

   iv.Later his aunt told him that they called her again and asked her to send US$[amount] as a bond. They frightened his aunt threatening to hurt her if she did not send the money.

   v.Recently, they contacted his aunt again and asked for the applicant’s number so that they could contact him. His aunt gave them his number and the applicant was rung and requested to deposit via [a money transfer of] [amount] Peruvian Sol.

   vi.They have also occasionally threatened to hurt the applicant’s aunt and kill her if money is not paid to them. They have also told the applicant’s aunt that his life was in danger and that sooner or later they will find him. They were mafia who knew how to find their victims. They sent his aunt some photos of him with his full name, date of birth and all his personal details. The mafia think that because a person is in another country that they are rich and they try to blackmail.

   vii.Due to the threats the applicant’s aunt returned to [Country 1] as she was a [Country 1] citizen. She asked the applicant not to return to Peru in any circumstances. She has not had any further threats.

   viii.The applicant’s older brother was killed by criminals when he was 18.

   ix.There are criminals in Peru that are capable of killing the applicant for as little as a $1.00. He is afraid to return to Peru due to the constant threats that they are making against his life. There is also a lot of racism against people who are not white or do not have bank accounts.

6. The applicant attended an interview with a Departmental officer on 5 April 2016 and the Tribunal has listened to the recording of that interview. The applicant reiterated and expanded on his claims. Details of information provided at the interview are included in the delegate’s decision statement, a copy of which was provided to the Tribunal by the review applicant. Where relevant, the Tribunal has discussed the information provided by the applicant to the delegate below.

   The Certificate

7. The Department file relating to the applicant’s protection visa application contained a document purporting to be a s.438(1) Certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1) certificate, which requires the reason specified in the certificate for why disclosing matters contained in the specified folios of the Department’s file would be contrary to public interest. The Certificate is not issued on Department letterhead. The folios the subject of the certificate consistent of the Department’s identification checklist and an internal disclosure decision checklist and identity checklist. The only reason stated in the s.438(1) certificate was that the information contained in the folios identified was related ‘to internal working documents and business affairs’. The Tribunal is not satisfied that this provides a sufficient basis for non-disclosure due to public interest. The Tribunal finds the certificate to be invalid and has proceeded to treat the document in the usual way as if there were no certificate. Furthermore, having reviewed the documents in question the Tribunal also finds that they do not contain any information which is in any way relevant to the applicant’s claims for protection.

   Tribunal application

8. Prior to the Tribunal hearing, on 14 January 2019, the agent for the applicant provided a submission that repeated the claims of the applicant, and set out his migration history.

9. It was further submitted that the applicant was the only son of his father who was an Australian citizen. If he was not granted refugee status it was claimed that the applicant would be isolated from his family in Australia. Family had a role as the central of human society, entrenched in all cultures. It was requested that if the Tribunal did not find the applicant to meet the criteria for a protection visa, the Tribunal was requested to consider whether to refer the matter for Ministerial Intervention under s.417 of the Act.

10. The applicant appeared before the Tribunal on 21 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his father, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant was represented in relation to the review by his registered migration agent.

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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).

13. 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.

14. 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’).

15. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The Tribunal did not find the applicant to be a credible witness and has concluded that the decision under review should be affirmed for the following reasons.  

17. The Tribunal raised with the applicant his delay in lodging an application for a Protection visa. It appeared that the application had been lodged only after the applicant had exhausted other options to remain in Australia. It was the evidence of the applicant to the Tribunal that the threats had occurred a year before the visa application. At this time the applicant did not have a valid visa, and was only in Australia awaiting a response to his request for Ministerial Intervention in relation to his Remaining Relative visa application. It was not until after his request for Ministerial Intervention had been refused that the applicant lodged a claim for protection. The applicant did not provide to the Tribunal a satisfactory reason for the delay, he said that if it was his intention just to stay in Australia he would have just stayed illegally. The Tribunal then put to the applicant that he did continue to stay in Australia after his student visa had ended in February 2010 until he applied for the Remaining Relative visa in April 2011. The applicant suggested that this had been a result of a miscommunication.  The Tribunal considered that if the applicant had a genuine fear of harm in Peru it is considered he would have lodged a claim for a Protection visa immediately or at least proximate to the time of the threats, rather than wait until his request for Ministerial Intervention had been determined, and risk the possibility of being deported to Peru.

18. The applicant also gave evidence in the hearing that when he was reunited with his father in 2009 in Peru, his father made promises to bring him to Australia to live. He told the Tribunal that he had no family remaining in Peru and made claims that he was abandoned by his mother into the care of his aunt as an infant. The Tribunal had concerns that when the applicant first travelled to Australia in 2009 he intended to remain permanently. The applicant gave evidence that after his student visa had expired, which occurred in February 2010 he intended to remain permanently in Australia, and indeed he did continue to stay for over 12 months before lodging a further visa application. The evidence before the Tribunal was that it had been a long term intention for the applicant to remain permanently in Australia. In these circumstances it appeared to the Tribunal that the applicant was motivated to seek a protection visa for reasons other than his fear of harm in Peru, and this motivation may have led to the creation of the applicant’s claims.

19. When discussing the substance of his claims and the threats that he received the Tribunal considered that the applicant’s evidence contained considerable embellishment from his original claims. This further caused the Tribunal to doubt the reliability and the veracity of the applicant’s claims. The applicant suggested in his evidence that his problems arose because when his father came to visit him in Peru in 2005, his father was talking about how good things were in Australia and that he was wealthy and had a lot of things. The applicant thought that this brought him to the attention of those who wished to extort him. The Tribunal had several difficulties with this proposition. Firstly, the applicant did not depart Peru for several years until 2009. Between 2005 and 2009, although he was the son of a proclaimed wealthy Australian he confirmed in his evidence that he did not suffer any harm, or in particular any threats of harm or claims for money or extortion. Secondly, the threats by the mafia that the applicant claimed gave rise to his fear did not occur until after he had been in Australia for a further four years. The Tribunal considered if the mafia wished to target him because they thought he was wealthy or his father was wealthy, it was improbable that the mafia would wait eight or nine years before they made an extortion attempt. The timing was very coincidental to the applicant needing claims to found a protection visa application. Finally, the Tribunal was concerned that the applicant had not previously raised this motivation for the threats in his written claims, and it was not recorded in the evidence set out by the delegate in their decision. If this was a genuine motivation for the treats the Tribunal considered that the applicant would have raised it from the first instance.

20. The Tribunal further questioned why the mafia would contact the applicant’s aunt to make the threats that formed the substance of his claim. This was because when discussing his family circumstances with the Tribunal, the applicant gave evidence that although he had been raised by his aunt since a young child, they had become estranged when he turned 18. This was due to problems that had arisen with his uncle, as the applicant said that he treated him as less than human. The applicant discussed at certain times how is aunt had kept him away from his father, and that when he came to Australia he learned certain things about his aunt and uncle from his father, that damaged their relationship. In addition, the applicant further gave evidence that his aunt had moved to [Country 1] to live with his cousin when he was 23 years of age. In these circumstances, where the relationship was estranged and the applicant had minimal contact with his aunt since he was 18, it seemed improbable that the mafia would contact her to make an extortion attempt at a time when the applicant was approximately [age] years of age and not been in Peru for several years. As the applicant was estranged from his aunt, and she did not communicate with his father, the Tribunal questioned how his aunt would even know where to contact the applicant in Australia. In response to the Tribunal’s concerns the applicant adjusted his evidence and said that his aunt travelled back and forth between [Country 1] and Peru due to his uncle’s business. He then said that although he lost contact with his aunt at the age of 18, when he came to Australia he used to have phone contact with her and she would ask how he was going and about Australia. Although she would not speak to his father. Once more the Tribunal considered that the applicant was embellishing his claims in an effort to address perceived deficiencies in his evidence. This further raised concerns about his credibility.

21. The applicant’s evidence regarding the alleged threats were made is not considered to be consistent. Firstly in his written claims the applicant said the events occurred a couple of months prior to September 2014, at the hearing the applicant gave repeated evidence that it was at least a year before September 2014. Further, the applicant’s narrative was not consistent with respect to how many threats were made and when they were made. At first the applicant said that there was a phone call and the sum of US $[amount] was demanded because the applicant was held in Peruvian customs. When the applicant’s aunt demanded to speak to the applicant, the caller said they would ring back in 10 minutes and in the next call they pretended to put the applicant on the phone and the person cried to his aunt for assistance. So it would appear from the evidence at hearing there were in fact two calls at this time, although the applicant also gave evidence at hearing that his aunt only received a total of two calls. Within 24 hours the applicant claimed that there was a second phone call to his aunt and at this time the amount of US $[amount] was requested. The delegate records that the applicant said at his Department interview [a much larger sum] was requested. The Tribunal also did not consider this narrative as consistent with the written claims of the applicant suggest that the extortion attempts took place over a longer period of time, and that there were several calls, although no specific dates are provided. The applicant told the Tribunal that after the second call his aunt then rang the police. When the Tribunal questioned the timing of this contact with the police, the applicant said that his aunt was threatened not to contact the police and then the person made threats on the phone to his aunt, that they would harm her if she did not pay money. The Tribunal pushed the applicant to clarify if a complaint was made to the police or not. In response the applicant said that there was a report to the police after the second phone call. This was inconsistent with the information recorded by the delegate in her decision that the applicant said his aunt did not go to the police. These multiple inconsistencies, regarding the calls made to his aunt, cast further doubt on the credibility of the applicant and the reliability of his claims.

22. The Tribunal’s doubts were further exacerbated by the evidence of the applicant which was inconsistent regarding the contact from Peru he claimed to have experienced in Australia. In his written claims the applicant sets out that his aunt gave the extortionists his number and he was contacted and requested to deposit the sum of [amount] Peruvian Sol via [a money transfer]. At the hearing the applicant gave evidence that once they called Australia and they asked if [the applicant] lived there, my father was drunk and said yes and they never called back after that. When the Tribunal raised the omission of the direct contact he received with the applicant at the hearing, he denied that he had said his father took the call. The Tribunal has reviewed the audio recording and confirmed that this was the applicant’s original evidence. He also adjusted his evidence and said that he was not contacted directly but that his aunt had told him to pay the money, she had said to him that she did not have the money and that he should send the money to the account. Aside from the fact that the applicant was considered to be changing the substance of his original claim, this was inconsistent with the earlier evidence of the applicant that his aunt had not been given an account but was told to take the money to an alleged customs address in Peru. When this was pointed out to the applicant, the Tribunal considers that he further embellished his response by claiming that his aunt had told him to fix the problem and they had given her an account number. It also did not make sense to the Tribunal that the applicant would be asked to deposit Peruvian Sols, yet his aunt was requested to pay US dollars. The Tribunal considered that the applicant was shifting and embellishing his evidence to diminish the fact that he had omitted his claim about direct threats he had received in Australia. The inconsistency and the shifting nature of the applicant’s evidence in relation to this matter, further demonstrated to the Tribunal that the applicant’s claims may have been contrived. The Tribunal is not satisfied that the applicant was ever contacted by extortionists while in Australia, directly or indirectly through his father.

1. Additionally, the applicant’s evidence generally regarding his contact with his aunt was unsatisfactory. Aside from the contradictory evidence regarding when she went to move to [Country 1], the Tribunal put to the applicant at the hearing that the extortion threats had occurred around five years before the hearing date and that it was remote that anyone would still be looking for him. The applicant responded that because his aunt did not pay she was told it could be one, two or three years, your nephew is on our list and we will know when he gets to Peru. The applicant claimed that the extortionists had links in the Peruvian migration department. As discussed with the applicant, if the extortionists were monitoring the movement of people for the purposes of enforcing their claims for money, then the Tribunal considered it was improbable that they would have permitted his aunt to relocate to [Country 1] without taking further action. Additionally, at the hearing he claimed that his aunt cut off all contact with him within 48 hours after the first phone call from the extortionists. She said to him do whatever you want with your life, that he had ruined the future that she wanted to have in Peru as she did not want to go to [Country 1], and that the applicant was to forget about her, and forget about her family. In his application for the Protection visa, when asked whether he was in contact with any of his relatives in his home country or any other country, the applicant responded, I contact my aunt by phone frequently and she also calls me as well.[1] When this inconsistency was raised with the applicant at hearing, he claimed that frequently had several meanings in Spanish, where there was only one in English. The Tribunal did not accept this response. His responses were considered unreliable, inconsistent and problematic, and further demonstrated his lack of credibility.

   [1] Question 64, page 13 Form C, applicant’s protection visa application, folio 37 of the Department’s file.

2. In his evidence to the Tribunal, the applicant’s father, [Mr A] had no direct knowledge of the threats the applicant claimed to receive from Peru. The Tribunal raised with the applicant the inability of his father to corroborate his claims. The applicant submitted that [Mr A] had a history of alcohol abuse and had a poor memory. The Tribunal accepts this submission that the evidence of [Mr A] is unreliable. It is also accepted that [Mr A] wishes for his son to remain in Australia due to his ongoing health problems. However, it remains that there is no third party evidence, documentary or otherwise to corroborate the applicant’s claims. The applicant has asked the Tribunal to rely upon his bare assertions. Overall, the multiple inconsistencies in the evidence provided by the applicant, his embellishments and additions to his evidence, the lack of corroboration or any other evidence in support, as well as his delay in claiming protection, lead the Tribunal to the finding that it does not accept that the applicant is a witness of truth. The Tribunal finds that the applicant has fabricated his material claim for the purpose of obtaining a Protection visa. It does not accept that the aunt of the applicant was ever contacted by extortionists and told that the applicant was detained in customs, or that any threats of extortion were made in order that the applicant not be harmed, or that any threats of harm were made to the aunt of the applicant. It also does not accept that the mafia, or crime syndicates operating within Peruvian immigration intend to target the applicant if he returns to Peru.

3. The Tribunal has also considered the claims by the applicant that he was targeted because his father was from a western country,  it does accept that if he returned to Peru in the reasonably foreseeable future he may be perceived as a returnee from a Western country, or a returnee from a wealthy country, and for this particular reason he could be a member of this particular social group. As discussed with the applicant at the hearing, the Tribunal could locate no country  information to support the submission that such people were targeted in Peru. [Mr A] told the Tribunal that he had returned to Peru in 2009 and again in 2012 and not had any difficulties. The Tribunal does not accept that for this reason there is a real chance that the applicant will be subject to serious harm .

4. The applicant also raised claimed that if a person was white and wealthy they received better treatment. The Tribunal clarified with the applicant that he was not claiming to be indigenous. He confirmed that he did not experience any racism in Peru. The Tribunal finds that there is not a real chance that the applicant will be subject to serious harm by reason of his race. The applicant did however make claims of corruption in Peru stated that if you were wealthy in Peru you could afford to protect yourself, you could pay for security and that those who were wealthy received better treatment. The Tribunal does not accept that corruption in Peru makes it impossible for ordinary people to seek justice and protection. As discussed with the applicant at the hearing, the Tribunal had regard to country information from various sources, including the most recent report from the US Department of State on Human Rights Practices, and it is reported that the constitution and law in Peru prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements. [2] Further, civilian authorities in Peru are reported to maintain effective control over the military and police forces, and the government had effective mechanisms to investigate and punish abuses.[3]  The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will be subject to serious or significant harm by reason of due to corruption in Peru.

   [2] "Country Reports on Human Rights Practices for 2017 – Peru", US Department of State, 20 April 2018, OGD95BE927390 at page 4

   [3] As above at page 4

5. The Tribunal accepts that the applicant is worried about the general security situation in Peru, raised issues of general violence in Peru, the applicant has stated that his older brother was killed at the age of 18. In his application form he set out that he had been assaulted at his work and was once asked by people on the street with a knife for money. These concerns are understandable.  As set out above, country information indicates that Further, civilian authorities in Peru are reported to maintain effective control over the military and police forces, and the government had effective mechanisms to investigate and punish abuses. Further these random general acts do not amount to persecution, as they do not involve systematic and discriminatory conduct; and the feared harm is not for one or more of the five Convention reasons.  

6. For the reasons given above, the Tribunal is not satisfied that the applicant’s fear of persecution in Peru for the reason of his race, religion, nationality, membership of a particular social group or political opinion is well-founded. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

7. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

8. In view of the above findings that the applicant’s claims regarding threats of extortion and harm to himself or his aunt, were not credible, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of these reasons claimed if he returns to Peru now or in the reasonably foreseeable future.

9. The Tribunal has also considered the applicant’s concerns about violence generally in Peru. These issues apply to greater or lesser degrees through most of Peru. Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns relating to Peru’s generalised violence impact the population generally, rather than him personally. Therefore there is taken not to be a real risk that an applicant will suffer significant harm.

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Peru now or in the reasonably foreseeable future.    

11. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Peru, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

12. The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

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

    MINISTERIAL INTERVENTION

14. 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.

15. The Tribunal has considered the Guidelines but has determined that there is insufficient information before it, particularly in relation to [Mr A’s] health condition and his dependence on the applicant, to refer the matter itself.

16. The Tribunal notes that this does not prevent the applicant from making an application for intervention himself.

    DECISION

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

    Penelope Hunter
    Member