1619510 (Refugee)

[2018] AATA 4342

1619510 (Refugee) [2018] AATA 4342 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619510

COUNTRY OF REFERENCE:                  Mauritius

MEMBER:Nicole Burns

DATE:29 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 August 2018 at 1:03pm

CATCHWORDS

REFUGEE – protection visa – Mauritius – social group – family in debt – adverse financial situation – severe threats from a money lender – credibility issues – vague details about money borrowed –wife visited Mauritius since moving to Australia – inconsistent details of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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. 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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Mauritius, applied for the visas on 18 September 2014 and the delegate refused to grant the visas on 11 November 2016.

3. The first and second named applicants appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mauritian Creole and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the hearing. 

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; 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.

8. 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’).

9. 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

10. According to information on the Departmental file and confirmed at hearing, the first named applicant (the applicant) is a [age] year old married man from [Town 1], Mauritius.  The second named applicant is his wife, who is from [another town] in Mauritius.  The third named applicant is their son, who was born in Mauritius in [date].  The second named applicant confirmed at hearing that she did not have any of her own protection claims.  The applicant parents have not put forward any claims on behalf of their son, the third named applicant.

11. The applicant set out his claims initially in his visa applications on 18 September 2014 as follows.

    Why did you leave that country?

    I came to Australia initially with my wife as a spouse of a [temporary visa holder].

    Did you experience harm in that country?

    Yes my wife and I were constantly threatened by the money lender and his gang on a number of occasions during 2009 and 2010 and it is continuing.

    What do you think will happen to you if you return to that country?

    If we go back, we face the risk of either being killed or being kidnapped or being tortured.

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

    [Mr A] and his gang.

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

    I borrowed [amount] from [Mr A] [in] 2007, before coming to Australia for the purpose of our trip to Australia.  I was unable to pay back his money due to our adverse financial situation which we experienced in Australia.  In 2009, when I visited Mauritius with my family, he and his gang threatened us due to failure of paying back his money.  We had to cut short the trip and came back to Australia.  We thought the problem will not occur again and my wife made another trip to Mauritius in 2010.  During this period, my wife had faced severe threats from the money lender and she had to come back soon.  I am afraid of [Mr A]’s violent attitude towards me and my family.  I am feared, if we go back to Mauritius, he is going to harm us and possibly kill us.

    Do you think the authorities of that country can and will protect you?

    No.  Money lender is a powerful person in my country and I believe even authorities may not be able to protect us as he and his gang is working underground.  Therefore, he is capable of harming us and/or kill us.

12. The issues in this review are whether there is a real chance that, if the applicant returns to Mauritius, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Mauritius, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

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

14. The applicants travelled to Australia on valid Mauritius passports and state that they are nationals of Mauritius. The delegate had no issues with the applicants’ identity and claimed nationality.  Therefore the Tribunal has assessed the applicants’ claims against Mauritius as their country of nationality and receiving country.

15. At hearing the applicant told the Tribunal that before he came to Australia in September 2007 he lived in [Town 1] with his wife and child.  He worked at [a] shop (selling [goods]) as well as selling [goods] door to door.  Prior to that he worked [in another role].  The Tribunal notes the delegate in her decision record (a copy of which the applicant provided to the Tribunal on review) noted that the applicant had told the Department different things about his work in Mauritius at different times.  At hearing the applicant confirmed his work history in Mauritius as set out above.  Whilst not without some doubt, given the applicant’s work history has no relevance to the applicant’s protection claims, the Tribunal is willing to give him the benefit of the doubt in this instance and accepts his claims as to his work history in Mauritius and does not draw any adverse inference from alleged inconsistencies in his work experience claims. 

16. The applicant told the Tribunal he borrowed AUD[amount] from a money lender called ‘[Mr A Alias 1]’ in [Mauritius] about six months before they first came to Australia in September 2007 to pay for their trip and associated costs.  [Mr A Alias 1] did not want any interest for the loan and told the applicant to repay the money as soon as he got work in Australia.  However the applicant did not repay [Mr A Alias 1], even though he obtained work in Australia, and when he visited Mauritius in 2009 [Mr A Alias 1] came to his mother’s house where the applicant was staying, asked for his money, and threatened him.  He heard from his mother that [Mr A Alias 1] returned to her house a few times asking about the applicant and the money after the applicant had returned to Australia: the last time was sometime in 2011.  [Mr A Alias 1] has not contacted the applicant in Australia. 

17. The applicant said his wife and son returned to Mauritius for a visit in 2010 to attend his sister’s wedding.  When asked, he said [Mr A Alias 1] did not threaten her during that visit.  When asked why, then, did he claim in the protection visa application that his wife faced severe threats during this visit, the applicant replied that he does not know.

18. The applicant said he is afraid [Mr A Alias 1] will seriously harm him on return to Mauritius – possibly kill him – because he has not paid back the money he owes him.

19. The Tribunal has a number of concerns about the applicant’s core claims to have borrowed money from a money lender in Mauritius, and received threats from him when he failed to repay him the monies owed, as discussed at hearing.  These include a number of inconsistencies in his evidence in key respects.  For example:

    ·In his protection visa application the applicant stated that his wife faced “severe threats” from the money lender when she visited Mauritius in 2010 and had to return to Australia soon.  However at hearing the applicant said his wife did not receive any threats from [Mr A Alias 1] (or anyone) during her visit to Mauritius in 2010 and she did not cut her visit short.  When asked why, then, he claimed in the protection visa application that his wife faced severe threats during this visit, the applicant replied that he does not know. Furthermore, the second named applicant did not indicate at hearing that she held any concerns about returning to Mauritius from any money lenders.  When asked if she holds fears about returning, she replied that she does not want to because she has been in Australia for so long and because of her son’s studies (in Australia).

    ·In his protection visa application the applicant states that he and his wife were constantly threatened by the money lender and his gang on a number of occasions during 2009 and 2010 and it was continuing.  However at hearing he said he was threatened once only by [Mr A Alias 1] when he visited Mauritius in 2009 and the last time [Mr A Alias 1] allegedly visited his mother was in 2011.  When asked about this discrepancy, the applicant said that [Mr A Alias 1] continued to ask his mother about him, up until 2011. 

20. There are other concerns the Tribunal has with the applicant’s evidence in this respect.  This includes his oral evidence about the loan terms and arrangements being vague, lacking in detail and in some respects implausible.  For instance, the Tribunal finds the applicant’s claims that the money lender lent him AUD[amount] with no interest requirement or any other surety implausible.  As well, the applicant was vague about when he was supposed to repay the loan, stating only that he told [Mr A Alias 1] he would pay it ‘asap’ or in three years.   He did not answer when asked if there was a minimum monthly (or other) repayment.  At hearing the applicant said this happened a long time ago and it is difficult to remember things ‘exactly’.  The Tribunal does not expect the applicant to remember these events and the circumstances surrounding them ‘exactly’.  However his vague oral evidence combined with the other concerns set out above and below cause the Tribunal to doubt his claims in this respect.

21. The fact that the applicant returned to Mauritius for a holiday in 2009 and his wife (and son) in 2010 (the second time after the alleged threats from [Mr A Alias 1]) also undermines the applicant’s claims to fear serious harm (for himself and his family) from [Mr A Alias 1] because of his failure to repay the loan.  At hearing the applicant said he returned in 2009 to see his mother as did his wife in 2010 (and to attend his sister’s wedding).  The Tribunal accepts the reasons for their return, but the fact they did return indicates they did not hold a fear of serious harm from [Mr A Alias 1] or anyone else at the time.

22. Another concern the Tribunal has is that whilst on the one hand the applicant claims to fear serious harm on return to Mauritius from a money lender because of an outstanding debt on the other hand he has made no effort to repay that debt whilst working in Australia.  At hearing he said he had expenses to cover in Australia.

23. A further concern with this case is the fact that the applicant did not apply for a Protection visa until September 2014, despite claiming to have borrowed money from [Mr A Alias 1] in around 2007 and allegedly having received threats from him in 2009.  At hearing the applicant said that was because he was working to obtain another visa here (a Subclass 457 visa).  The Tribunal does not find the applicant’s explanation at hearing adequately explains the delay. 

24. As set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review), the applicant also failed to mention he held any fears from a money lender in Mauritius in his request for Ministerial Intervention (in October 2012): at hearing the applicant said that was because he did not want to mention it at the time, wanting to see what the Minister could do for him. 

25. At hearing the Tribunal discussed other concerns with the applicant’s case, as set out in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review).  Specifically the delegate’s assertion that the applicant’s claim to have borrowed money from a money lender to fund his travel to Australia was contradicted by documents provided with his overseas [temporary] visa application.  These included a letter from his father-in-law and a family friend indicating that they would financially support the applicant’s wife and her family in Australia, as well as a letter from [an organisation] approving a housing loan of Rs [amount].  At hearing the applicant confirmed that his father-in-law and a family friend were willing to help them out financially in Australia if needed, but said he never asked, preferring to repay his own debts.  However this is undermined by the fact that he never repaid any of the alleged loans from [Mr A Alias 1], despite working in [Australia], and claiming to fear serious harm from [Mr A Alias 1] as a consequence.  With respect to the housing loan, the applicant said his mother actually took out that loan for them because they needed more money for their trip to Australia.  He said she has repaid the loan and he did not indicate any concerns on return to Mauritius on that basis.

26. Given these concerns, the Tribunal does not accept that the applicant is a credible witness.   For the reasons set out above, the Tribunal does not accept the applicant’s claims that he borrowed money from a money lender called [Mr A Alias 1] in Mauritius around 2007; that he was threatened by [Mr A Alias 1] in 2009 when he failed to repay the loan; that [Mr A Alias 1] visited his mother a number of times trying to locate the applicant to get him to repay the loan; or that his wife has ever been threatened in relation to this matter or any other matter.  For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Mauritius from [Mr A Alias 1] or anyone else for any reason.  Given this finding the Tribunal also does not accept that the second named applicant and the third named applicant face a well-founded fear of persecution from [Mr A Alias 1] or anyone on return to Mauritius in the foreseeable future. 

27. In reaching this conclusion the Tribunal has had regard to the oral evidence of the second named applicant on this matter.  However her evidence was very vague – she said her husband borrowed some money from someone and he has not returned the money – but she was unable to provide any specific details or context.  For example she did not know how much money was borrowed, or from whom.  For these reasons the Tribunal gives her oral testimony limited weight: it does not overcome the serious concerns the Tribunal has with the applicant’s case as discussed above.  

28. The Tribunal notes in the delegate’s decision record the delegate stated that the Department has received information from various sources that ‘they’ (the applicants) provided false documents to the Department.  However as such information does not appear to be contained on the Departmental file in this case and has no relevance to the protection claims the Tribunal does not draw an adverse inference from this comment by the delegate in determining the matter before it.

29. The delegate also raised concerns in her decision record about the applicant’s employment experience claims in Australia with [an employer] because of his vague evidence at interview and his failure to provide evidence of his employment such as payslips or bank account payments.  The delegate concluded therefore, that the applicant provided false or misleading information about his work for [this employer].  Having regard to the applicant’s oral evidence at hearing on this matter and noting that his employment in Australia has no relevance to his protection claims, the Tribunal accepts the applicant has worked (and continues to do so) as [an occupation]in Australia and does not does not draw an adverse inference from the delegate’s observations in this respect. 

30. The delegate also raised concerns in her decision record about evidence of studies in Mauritius with respect to the second named applicant, concluding that she provided a fraudulent document (and false and misleading information) in the form of a school leaving certificate with her overseas visa application.  Apart from a general concern about the second named applicant’s credibility, it is not clear how this is relevant to the applicants’ protection claims.  Nonetheless, the Tribunal accepts the applicants’ claims that the second named applicant completed high school in Mauritius and does not draw an adverse inference from the delegate’s findings. 

31. For the reasons above the Tribunal does not find that there is a real chance of the applicant or the second named applicant or the third named applicant being persecuted now or in the reasonably foreseeable future on return to Mauritius from a money lender or anyone else.  The Tribunal finds that the applicant and the second named applicant and the third named applicant do not have a well-founded fear of persecution within the meaning of the Convention.

    Complementary protection

1. In considering 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 he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Mauritius and the Tribunal therefore finds that Mauritius is the ‘receiving country’ for the purposes of s.5(1).

2. For the reasons set out above, the Tribunal has not accepted the applicant’s claims to have borrowed money from a money lender in Mauritius, or that he and his wife have been threatened by him, and found there is not a real chance the applicant and his wife and his child will suffer serious harm on return to Mauritius from the money lender or anyone else.  In MIAC v SZQRB, 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 Refugee Convention definition.[1]  It follows that the Tribunal does not accept there to be a real risk that the applicant and the second named applicant and the third named applicant would face significant harm if returned to Mauritius for any of these reasons. 

   [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

3. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Mauritius, there is a real risk that the applicants will suffer significant harm. The Tribunal therefore finds the applicants do not satisfy the criterion set out in s.36(2)(aa).

4. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

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

   Nicole Burns
   Member