1610304 (Refugee)

[2016] AATA 4690

1610304 (Refugee) [2016] AATA 4690 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610304

COUNTRY OF REFERENCE:                  Japan

MEMBER:B. Mericourt

DATE:4 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 November 2016 at 3:45pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Japan, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] August 2015.

3. On 8 July 2016 the applicant lodged an application for review of the Department’s decision. On 22 August 2016 the Tribunal made a decision that it had jurisdiction to review the decision as the applicant had not been correctly notified of the decision until [in] July 2016.

4. The applicant appeared before the Tribunal on 28 October 2016 to give evidence and present arguments.

5. The relevant law is attached to this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant was born in [year] in [Country 1] and is of [Country 2] and Japanese ethnicity. His mother is [from Country 2] and father Japanese. He is the holder of Japanese citizenship as a result of his father’s Japanese citizenship. At the time of application his parents and one [sibling] were residing in [Country 1] and one [sibling] was a permanent resident of Australia. The applicant stated that he speaks, reads and writes English, [two other languages] and speaks Japanese. He has no stated religion. He lived in [Country 1] from [specified year] to [year]. In [year] undertook studies in a [tertiary course] in [Country 3] until July 2010 when he returned to [Country 1]. The applicant stated that he had previously travelled to [Country 4], [Country 1] and [Country 5] in 2010 and Japan and [Country 1] in 2011.

7. [In] January 2007 the applicant was granted [temporary visa] and he entered Australia [in] February 2007. He departed Australia [several] days later. He was granted a further [temporary] visa [in] June 2008 and entered Australia [in] July 2008. He departed Australia [in] August 2008. [In] February 2011 the applicant was granted a [temporary visa] and he entered Australia [in] February 2011. He completed a [further tertiary course] at [an education provider] in December 2012. His [temporary] visa ceased and he lodged an application for a [different temporary visa]. This was refused as [reason]. He lodged an appeal with the Migration Review Tribunal (MRT) (differently constituted) which found it did not have jurisdiction on 20 October 2013. He lodged a further appeal to the Federal Circuit Court which dismissed the application [in] August 2014. He lodged an application for protection [in] October 2014.

   Claims made in his written application for protection dated [in] October 2014

8. The applicant claimed that he had never been harmed in Japan because he had never lived there. He fears that he would experience significant discrimination as he is of [Country 2] ethnicity and does not read and write Japanese. There is evidence that many people of [Country 2] origin have been mistreated and persecuted in Japan and they experience racial discrimination and discrimination in obtaining employment, despite the Japanese government’s policies of non-discrimination.

9. The applicant did not attend his scheduled interview with the Department [in] August 2015.

   Department’s decision dated [in] August 2015

10. The applicant provided the Tribunal with a copy of the Department’s decision. The delegate refused to grant the applicant a protection visa because he was unable to assess the applicant’s claim as he did not attend his scheduled interview and the delegate was not satisfied that there was a real chance or real risk that the applicant would suffer serious or significant harm if he were to be returned to Japan.

    Claims made at the Tribunal hearing on 28 October 2016

11. The Tribunal discussed the applicant’s background, current circumstances and claims for protection which are summarised as follows;

12. The applicant’s parents live in [Country 1] and [some siblings] are Australian permanent residents. The visa applicant said he does not have contact with his [siblings]. [One sibling] is a qualified [occupation 1] and when he last had contact with [them], his other [sibling] was working as [another occupation].

13. After high school the applicant studied in [Country 3] as he was interested in a [country in that region]. He studied [a local] language and enjoyed living there so continued his degree study there. He came to Australia and studied his [further tertiary course]. He lodged an application for a [different permanent] visa with [a company in Country 1] as his sponsor but unfortunately it was not an approved sponsor. He appealed to the MRT which found it did not have jurisdiction and the Federal Circuit Court which affirmed the decision. He has not looked for an alternative sponsor and now has an appeal lodged with the Full Federal Court.

14. The visa applicant has been financially supported by his parents during the time he has been in Australia.  He lives in share accommodation in [city].

15. Although the applicant’s parents are permanent residents of [Country 1] he is not sure whether he would also be granted permanent residency in [Country 1]. He did know that he would be required to do military service if he applies for permanent residency and he was unwilling to do this. He also thought that his parents could not afford the cost of the application for permanent residency. The Tribunal put to him it did not find his assertion that his parents could not afford the application fee when he has been financially supported by them for a number of years in Australia and they have also apparently paid for his court costs. The applicant agreed and said he did not want to return to [Country 1] as he had left there in [year] and was “unfamiliar” with the culture there. He wanted to remain in Australia.

16. The applicant said he could not live in Japan as he has never been to school or worked there. He has only visited Japan briefly – mostly when he was a child. His last visit was in 2011 for only one week. He is illiterate in Japanese.  He would not be able to be independent and would have difficulty finding employment because he is illiterate. He would also be discriminated against due to his [Country 2] ethnicity. He acknowledged he has never experienced any harm in Japan. Although some of his father’s family reside there they would not assist him because they have made clear they do not find his [Country 2] ethnicity acceptable.

17. The Tribunal put to the applicant independent country information that, although it would be possible or even likely that he would suffer social discrimination and discrimination in obtaining employment, there was no indication that there would be a real risk or real chance that he would suffer serious or significant harm[1]. The applicant reiterated that he did not want to live in Japan as he did not wish to suffer discrimination and be unable to obtain suitable employment.

    [1] US Department of State’s 2015 Country Reports on Human Rights Practices, Japan, pp.19-20 Accessed 28 October 2016

18. The Tribunal granted the applicant six days to provide additional information. No further information was received.

    FINDINGS AND REASONS

    Nationality

19. On the basis of the applicant’s Japanese passport provided to the Department, the Tribunal finds that the applicant is a citizen of Japan. The applicant claims to have been born in [Country 1] but does not have the right to reside there until he applies for residency. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Japan. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Japan, the Tribunal also finds that Japan is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Delay in lodging the application

20. The Tribunal places significant weight on the length of time between when the applicant entered Australia and when he lodged the visa application. The Tribunal considers that if the applicant genuinely feared returning to Japan he would have sought protection in Australia sooner than he did.  The applicant told the Tribunal that he only applied for protection when his application for a [different permanent] visa was rejected by the Department and this decision was affirmed by the court.   The Tribunal considers that the applicant did not seek protection sooner because he did not, and does not, actually fear suffering serious or significant harm in Japan.

    Claims related to discrimination and economic hardship if he is removed to Japan now or in the foreseeable future.

21. The applicant has claimed that as a person of [Country 2] ethnicity he will be subjected to serious discrimination and economic hardship in Japan.

22. According to the U.S. State Department,[2] societal discrimination continues against “foreigners, including permanent residents” in Japan. However, perceptions that a person is a “foreigner” appear to rely on their physical appearance. For example, police in large cities employ racial profiling to harass and sometimes arrest “foreign-looking” persons, particularly dark-skinned Asians and persons of African descent, without cause. People perceived to be foreigners face reduced access to housing, education and employment, although this report indicates that individuals who have a right to work have the right to receive social welfare.

    [2] ibid

23. The report further notes that, despite legal safeguards against discrimination, the country’s populations of Chinese, Korean, Brazilian and Filipino permanent residents - many of whom were born, raised and educated in Japan - were subjected to various forms of entrenched societal discrimination, including restricted access to housing, education, health care and employment opportunities. Other foreign nationals resident in Japan as well as “foreign-looking” Japanese citizens reported similar discrimination and also stated that they were prohibited entry, sometimes by signs reading “Japanese Only,” to privately-owned facilities serving the public, including hotels and restaurants. Noting that the discrimination is usually open and direct, respected NGOs complained of government inaction to prohibit it.

24. On the basis of this evidence, the Tribunal is satisfied that the applicant may suffer some social discrimination due to his perceived [Country 2] ethnicity or mixed ethnicity. In addition, his ability to find employment is likely to be limited if he is removed to Japan. However, the Tribunal considers this is more likely to be as a result of his illiteracy in Japanese and lack of work experience in the field in which he is qualified, rather than for a Convention reason.

25. Section 91R(2) of the Migration Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

26. Taking into account the applicant’s oral evidence, his multi-lingual abilities, education, qualifications and the available country information, the Tribunal is not satisfied that there is a real chance that the applicant will suffer such significant economic hardship that it would threaten his capacity to subsist or that there is a real chance he would suffer a denial of a capacity to earn a livelihood of any kind if he is removed to Japan now or in the foreseeable future. The Tribunal is not satisfied that there is a real chance that the applicant will suffer ‘serious’ harm, having regard to the examples provided above.

27. Therefore, on the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if he is removed to Japan. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

28. The Tribunal also considered the applicant’s claims under the complementary provisions and has had regard to the PAM3 Refugee and Humanitarian - Complementary Protection Guidelines. The Tribunal accepts that the applicant will face difficulties as a Japanese citizen who has limited familiarity with Japanese mores and culture and who is functionally illiterate in Japanese. The Tribunal is not entirely satisfied that he would have no family support in Japan as he gave evidence that he has visited his father’s family in Japan a number of times, albeit briefly. Nevertheless, the Tribunal is prepared to give him the benefit of the doubt and accept he has very little family support in Japan. Consequently he may suffer some hardship as he tries to find accommodation, earn an income and familiarise himself with the culture and the written language. However, the Tribunal is not satisfied that these hardships, even taken into account cumulatively, will result in a real risk that he will suffer “significant harm” as it is exhaustively defined in subsection 36(2A) of the Act. 

    CONCLUSION

29. 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).

30. 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).

31. 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

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

    B. Mericourt
    Member

    
    

    RELEVANT LAW

33. 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

34. 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).

35. 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.

36. 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.

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

38. 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.

39. 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.

40. 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.

41. 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 ‘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.

42. 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.

43. 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

1. 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’).

2. ‘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.

3. 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

4. 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.