1703365 (Refugee)

[2020] AATA 1354

1703365 (Refugee) [2020] AATA 1354 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703365

COUNTRY OF REFERENCE:                   Japan

MEMBER:Melissa McAdam

DATE:21 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 21 January 2020 at 10:48am

CATCHWORDS

REFUGEE – protection visa – Japan – particular social group – women – victims of family violence – mixed marriages – mental health issues – religion – Muslim husband – applicant disowned by family – Consulate’s refusal to register marriage – physical abuse – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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 on 7 February 2017 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 on 6 June 2016.

3. The applicant was represented in relation to the review by her registered migration agent, [business named].

   CRITERIA FOR A PROTECTION VISA

4. 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, he or she 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.

5. 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 because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

10. The following is a summary of the claims and information provided by the applicant in her Protection visa application:

    a.The applicant was born on [date] in Tokyo, Japan. She submitted a copy of the Japanese passport she used to travel to Australia. She left Japan [in] November 2014 and came to Australia on a [temporary] visa.

    b.She is married and submitted a copy of her Marriage Certificate.  Her husband was born in [Country 1] and now lives in Australia.  He is applying for a visa. At the time of application the applicant was pregnant and due to [give birth].  Her parents are in Japan.  Her sister lives in Australia.

    c.She left Japan to avoid violence from her father.  He is very violent and abused her and other family members. He is an alcoholic and never took care of the family.  She and her mother suffered from her father’s torture.  She suffered depression from a young age and started to take anti-depression medicine when she was [age] years old.

    d.When she was [age] she decided to leave Japan.  She came to Australia hoping to be safe.  Since then she has not been in contact with her family.  Her father considers her dead to him. 

    e.After she arrived in Australia she started work at a [business] where she met her husband. Their relationship developed and they started living together in October 2015. They married in March 2016.

    f.She notified her parents of her marriage. They refused to acknowledge her marriage or accept her relationship because of her husband’s religion and because he is a refugee in Australia. Her husband is seeking refugee status in Australia because his life is in danger in [Country 1].

    g.Following her marriage she went to the Japanese [Consulate] to notify them of her relationship status change.  The consulate refused to register her relationship with her husband, telling her he did not have proper identity documents. She fears the Japanese authorities will also refuse to accept her child as a Japanese citizen.

    h.If she returns to Japan she and her child will be subject to social discrimination.  Her child will be rejected because his father is Muslim.  Her marriage has made the situation with her family in Japan worse.

    i.The applicant also submitted a copy of her new passport issued by the Japanese [Consulate General] in July 2016.  It shows her married name.

    Departmental Interview

11. There is no record of the applicant being invited to a protection interview by the Department.

    Delegate’s Decision

12. The Delegate found that Japan has a functioning police force and judicial system, and that the applicant would be able to access the same level of legal protection from the authorities as any other Japanese citizen. The delegate was not satisfied that the applicant would face a real chance of serious harm, or real risk of significant harm,  in Japan.

    Information to the Tribunal

    Pre-Hearing Submission

13. On 31 October 2019 the applicant’s Agent provided the following written materials to the Tribunal:

    i.Agent’s Submission. In his submission the Agent outlined the following:

    -    The applicant claims to fear persecution as a member of the particular social group, ‘women being discriminated for her gender’ [sic].

    -    Women in Japan are discriminated against in every aspect of their life.

    -    Country information that shows discrimination and violence against women in Japan.

    -    The applicant also claims to fear persecution because of her marriage to a Muslim man who is a refugee in Australia.  She and her [children] will be persecuted and subjected to social discrimination from society in Japan.

    -    The applicant was previously threatened by her “in-laws” while she was previously residing with them, “particularly, in regards to her remarrying and claiming her share of her late husband’s inheritance”.

    -    The applicant’s “in-laws are very traditional and have already threatened her in regards to her remarrying and claiming her husband’s property”.

    -    The “applicant is a widowed woman who has gone beyond the religious  norms of .. Japanese society and has married outside her religion….”

    -    The applicant suffers from depression and anxiety and has had panic attacks. She is undertaking counselling from a psychotherapist. She has been referred to a psychiatrist and advised to take anti-depressant. She fears her mental health condition will worsen if she returns to Japan and has to face discrimination from her family and society.

    -    If she is sent back to Japan she will be separated from her husband and children who each hold a Safe Haven Enterprise visa in Australia.

    -    The applicant fears being abused and mistreated by her family and Japanese society. She has already experienced discrimination and abuse from her father in Japan.

    ii.Notices of the grant by the Department [in] August 2018 and [September] 2018, of a Safe Haven Enterprise visa to the applicant’s husband and each of their  [children].

    iii.A letter from psychotherapist, [Therapist A], dated 18 October 2019, stating that she first saw the applicant on 13 October 2015 due to her complaints of depression and insomnia. The applicant was referred to a psychiatrist, [Psychiatrist A] in mid October 2015 as part of her treatment, and was taking anti-depressants for about 6 months. She met her husband in late October 2015 and they married in March 2016. They now have [children with ages and names]. [Therapist A] believes marriage and motherhood has had a positive effect on the applicant’s mental wellbeing.  [Therapist A] observed a substantial reduction of the applicant’s symptoms since she married her husband.

    It is [Therapist A’s] opinion that it would be detrimental to the applicant’s mental health, if she was denied a visa to stay with her family in [Australia], considering her close connection with her husband and children, the youngest of whom is only [age] old. [Therapist A] suspects that there will be an irreversibly detrimental effect on the mental wellbeing of her husband and children, especially for their [named daughter], if separated from her mother. Returning to Japan is not recommended for the applicant since her relationship with her parents has been undesirable for many years, due to the severity of domestic violence inflicted by her father since she was a child.  Furthermore, the applicant’s parents in Japan have completely rejected her, her husband and children, due to the husband’s ethnic background.

    iv.A [Marriage] Certificate between the applicant and her husband, dated [in] March 2016.  The certificate describes the applicant’s prior status as ‘never validly married’.

    v.A [Birth] Certificate for each of the applicant’s [children].

14. The Tribunal notes that sections of the Agent’s submission appear not to relate to the applicant’s actual circumstances and appear to have been included by mistake.  The applicant herself has provided no indication of a problem with ‘in-laws’ or that she was previously married or that she is a widow.

    Tribunal Hearing

15. The applicant appeared before the Tribunal on 2 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

16. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant has worked casual jobs in [specified businesses].

    b.Her parents and [another family member] all live together in Yokohama, Japan.

    c.The applicant occasionally speaks with her mother but no one else in her family.  She has not spoken to her sister in years because they fell out with one another while her sister was in Australia.

    d.The applicant lives with her husband, [and her children] in Australia.  She and her husband communicate in English. Her husband is trying to learn Japanese and knows a few words but cannot converse.

    e.Her husband was born Muslim.  He believes in God and prays whenever he wants,  but not formally.  The applicant does not know much about his protection claims because her husband does not speak about things that may worry her.

    f.In Japan, many people are atheists. The applicant would like to become Christian or Catholic  because believing in God will help their children. This could lead to betrayal and bias in Japan.  When her [youngest child] is older they will start attending church on Sundays.

    g.The applicant became interested in Christianity about one year ago. This was because she had many issues with her parents and suffered.  Since she met husband he has told her to believe in God to help her with her problems.  A few times they have attended church together in Australia as a family.  They have tried to read the bible together.  Her husband has a bible in his language and she has one in Japanese.  The church [father] gave them the bibles.

    h.If she returns to Japan the Japanese people will assume her husband is Muslim because he is [from Country 1].  They will assume he is dangerous.  Many Japanese think after the terror incident by Muslims that if people are from [Country 1] they are Muslim so do not want to get close to them.

    i.She fears she will be discriminated against and harassed in Japan because Japanese people think Muslims are dangerous. People will think her husband is Muslim so the children are Muslim so it is the same as the applicant being Muslim.

    j.Japanese people will be unfriendly and she will be subject to social discrimination and harassment.  By harassment she means that people will say since the applicant is married to a Muslim let’s not get close or talk to her. People will think her family is dangerous and that if they make her family angry her husband will kill them.

    k.Her children will be subject to discrimination and harassment because people will assume they are Muslim.  They will say let’s not let our children mix with the applicant’s children. Other parents may follow this.  When she was little she observed how her mother was easily influenced by her female friends.

    l.Her children have English names, not Japanese. She did not give her children Japanese names because she has no intention to take them to Japan or to return there. Their human rights will not be regarded in Japan.  They will be questioned as to where their parents are from.  If they say their Dad is from [Country 1] the other children will say he is dangerous and will not play with her children anymore. 

    m.Her children mostly speak English. They know a few phrases in Japanese but can’t construct long sentences.  She hopes they will learn more Japanese.  She mostly speaks English with them.

    n.She will have problems with her parents in Japan. She came to Australia because of the problems with her parents. The problems started before the applicant was born.

    o.The applicant does not want to see her father and sister.  Her sister is jealous of the applicant.  She made up a story that the applicant’s husband had touched her inappropriately. The applicant knows this is untrue.  If the applicant returns to Japan and her sister sees the applicant happy with her husband and children her sister will harass the applicant’s children and husband and be mean to them. 

    p.The applicant’s father is unpredictable so she is not sure what he will do if she returns to Japan.  He was violent to the applicant in the past.  Her mother told the applicant that he is taking pills and alcohol so he could pose a danger. The applicant’s father was physically violent to the applicant’s mother but stopped this when the applicant was in year [number].  He continued to be verbally violent to the applicant’s mother.

    q.The applicant’s father was physically violent to the applicant.  The last time her father was physically violent to her was when she was in year [number] of school.  She then became more mature so perhaps he was afraid she would tell his parents about his bad behaviour.

    r.The applicant did not have problems with anyone else in Japan.

    s.The applicant believes her children may be abducted in Japan if something trivial happens. For example if they go to a shopping mall and talk to someone and there is a slight misunderstanding the person may harm or abduct her children.  This may easily happen because her [children] will be perceived as [Country 1].

    t.The applicant led a hard life before she met her husband.  Her world was dark.  Since she met him her life has become peaceful.  It is unthinkable for her to go to Japan without her husband. She would be hospitalised if she had to do this.  It is not possible for her husband to go to Japan because he has Australian protection.  His marriage to a Japanese person does not mean he will be granted a visa to live in Japan.  It is the same for her children, however they have been issued Japanese passports.

    u.The applicant had [condition 1]. She is being treated by a counsellor, psychologist and psychiatrist.  In Japan she only spoke of her mental health issues once. She broke down and hurt herself in Japan.  She has had treatment in Australia.

    v.After she came to Australia her mother left her father many times.  Her mother phones the applicant and tells the applicant negative things about her life but there is nothing the applicant can do to help her mother.  Her mother bombards the applicant with news and the applicant’s heart rate skyrockets and she panics. The applicant realised she needed to seek treatment in Australia. 

    w.The applicant could get treatment in Japan but her life has changed completely thanks to her husband and children so she does not think she needs treatment.

    x.If she was in Japan alone she would go back to her old life.  She would be in the dark everyday feeling she could die or be killed anytime.  She would not be able to return to Japan alone. In Japan, men are considered higher than women.  Human rights for women are not well protected.  So if she goes back and sees her father she cannot predict what may happen. If she returns to another part of Japan he may find her.

    y.She went to college in Japan. She asked a teacher which country protects human rights and was told that Australia does.  So she came here when she was [of certain age] and is now safe and happy.

    z.She would not be able to get work in Japan because she will be crazy.

    Post-Hearing Submission

17. On 12 December 2019 the applicant’s Agent submitted the following written material:

    i.A Statutory Declaration by the applicant in which she outlines the following:

    -    She was not able to express herself clearly about her sister, during the Tribunal hearing.

    -    Her sister has been physically abusive to the applicant. When her sister was in Australia she kicked the applicant [when] the applicant was pregnant with her eldest child. The applicant fears her sister may be physically abusive to her children in Japan.  Her sister may push the applicant’s children from the top of a staircase and then cry and pretend she had done nothing.

    -    Her sister fabricated that the applicant’s husband had touched her because she was jealous of the applicant’s happy relationship with her husband.

    ii.A letter from [Doctor A], dated 16 December 2019.  [Doctor A] confirms that the applicant was seen at the practice on four occasions in 2015-2016 for depression.  She presented with symptoms of depression such as poor appetite, social withdrawal, insomnia, low mood, hopelessness and thoughts of self-harm.  The applicant’s symptoms seemed to have been precipitated by her parents informing her they were divorcing.  She was referred for counselling and to a psychiatrist. The psychiatrist confirmed she had depression and prescribed anti-depressants.  On her last visit to the practice her mood had improved and she was considered quite stable.

    iii.A letter from Consultant Psychiatrist, [Psychiatrist A], dated 19 November 2015, in which she outlines the following:

    -    The applicant consulted [Psychiatrist A], and described never feeling quite well in herself since childhood due to her dysfunctional family.

    -    The applicant’s mother informed her of her intention to leave her father which distressed the applicant.

    -    The applicant recalled constant parental fights during her childhood and that her father has been physically abusive towards her mother. Both her parents have been on anti-depressants.

    -    The applicant stated that she has never felt happy and described depressed and irritable mood.  She described a pattern of low mood interspersed with a day of feeling high. These periods of intense highs would only last briefly, never more than a few hours but she admitted to feeling grandiose, impulsive and shopping for things she did not need. She admitted to experiencing three to four such episodes in her lifetime.

    -    She initially experienced insomnia but reported feeling mostly sleepy and her appetite has been variable. She has been avoiding people contact as she has not felt like socialising.

    -    Episodes of auditory hallucinations have occurred when she is in bed about to fall asleep. It appears to be possibly hypnagogic hallucinations based on her description. She denied any paranoid ideation.

    -    She has a history of self-harm since aged [age] and has had suicidal thoughts in the past. She denied any recent incidents of self-harm.

    -    She experienced physical abuse by her father and had feared for her life at times.

    -    She learned to cut off her feelings and not get close to people.

    -    She described leaving home during Year [number] at school and stayed with “deviant friends”. She did not go to school much.  Her mother had left home to go to a women’s refuge at that time due to domestic violence. The applicant has avoided thinking about this period in her life.

    -    The applicant has no formal past psychiatric history. There was no significant medical history. She has a history of binge drinking, consuming one and a half bottles of wine at a time.

    -    She has been working in a [business] and works up to ten hours each day.

    -    She denied any current specific stressors.

    -    The applicant presented with depressive symptoms on a background of longstanding mood dysregulation since childhood. She described a dysfunctional family background with trauma associated with domestic violence, separation from her mother and experiencing physical abuse.

    -    [Psychiatrist A] considers the applicant’s [set of symptoms] was more characteristic of [condition 2] than [condition 1].

    -    The applicant was agreeable to trial anti-depressant medication.

    Country Information

    Women in Japan

1. The Department’s 2017 Country Overview for Japan states:

   … Other human rights issues include detention of asylum seekers; domestic violence, sexual harassment, and workplace discrimination against women; people trafficking; child exploitation; and societal discrimination against members of minorities. Ethnic minorities experience varying degrees of societal discrimination.

   Although prohibited by law, domestic violence against women is a serious problem. Revised legislation allows victims of domestic abuse to receive protection at shelters and seek restraining orders from court. Women have legal equality, but discrimination in employment and sexual harassment at work are common, and violence against women is often unreported due to concerns about family reputation and social mores.[1]

   [1] Department of Immigration and Border Protection, COISS, 2017, ‘Japan: Country Overview’.

2. A 2019 Japan Times article states:

   Among the 149 countries covered in the latest world gender gap index, Japan’s position improved slightly from 114th a year ago to 110th. Still, Japan remains the lowest among the Group of Seven nations and 16th among the Group of 20 countries — ahead of only South Korea, Turkey and Saudi Arabia.

   According to Sophia University professor Mari Miura, Japan’s poor standing in women’s participation in politics and the economy — 125th and 117th, respectively — drags down the nation’s overall showing. While Japan is not so bad in education (65th) and health (41st), it won’t be able to climb the ladder unless the gender gap in politics and the economy is resolved. Despite its rich industrialized economy, Japan has yet to achieve much progress in equality between men and women.[2]

   [2] Japan Times, Shirakawa T 2019, ‘Japan An Underdeveloped Country For Women’, 11 January, >

   The US Department of State reports that during 2018 ‘women continued to express concern about unequal treatment in the workforce’ and that ‘women’s average monthly wage was approximately 73 percent of that of men in 2017’. Furthermore, there were ‘reports of employers forcing pregnant women to leave their jobs … although there are no recent data on this problem’.[3]

   [3] ‘Country Reports on Human Rights practices for 2018: Japan’, US Department of State, 13 March 2019, p.26.

3. A 2018 article, republished by Amnesty International, states:

   With only tepid support in Japan for the #MeToo campaign against sexual harassment, Amnesty’s East Asia Researcher Hiroka Shoji believes Japanese women must hold the government to account and demand respect for their rights.

   “I beat my wife again, because she gave birth to a girl.” These are the words my grandfather wrote in his diary on the day my mother was born in 1958. He was angry because he now had two daughters but still no son to continue the bloodline. This attitude was not unusual among Japanese men of his generation.

   While he regularly beat my grandmother, my aunt and my mother, my grandfather never raised his hand to my uncle, born four years after my mother. He was cherished as the family heir.  It has been 60 years since my mother was born. Though Japan has made enormous economic progress during that time, there’s been little progress in attitudes toward women.

   … Japanese society still sees household chores and childcare as the main responsibility of women, whether or not they are in paid employment. … Under existing gender norms, in other words, giving birth and raising children is still considered a woman’s main contribution to Japanese society. This view is deeply ingrained. … Once children are old enough to stay home on their own after school, women re-enter the job market as part-time workers with low earning potential and limited prospects for career advancement despite their education and capability.[4]

   [4] Amnesty International 2018, A Tokyo medical school rigged exam results to favour men. But Japan's sexism problem runs even deeper’, 29 August

4. In 2018, Bloomberg published an article about single mothers in Japan that states:

   Most single mothers in Japan exist on less than half the national median income, the poverty line defined by the Organisation for Economic Co-operation and Development. Their children are, on average, poorer, less educated and have fewer prospects — an underclass in a wealthy and aging nation that can ill-afford to lose a significant chunk of its future workforce. One in every seven children in Japan experiences poverty.[5]

   [5]  ‘In One of the World’s Richest Countries, Most Single Mothers Live in Poverty’, Bloomberg, 24 June 2018

5. In August 2019, Inside Over published an article about single mothers in Japan that discusses the difficulties faced by single mothers to secure accommodation:

   Japanese law requires a guarantor, who is liable for paying the rent. Normally, the husband will be the guarantor while the wife is viewed as the tenant. So, unless there is support from family, single mothers will find it very challenging to secure inexpensive rental since a low income will mean they are unable to act as their own guarantor. And in an over-populous city like Toyko, the rent is sky-high.[6]

   [6] Inside Over, ‘Japanese Charity Finds Solution for Single Mothers Facing Discrimination’, 21 August 2019.

6. A UNCHR summary of stakeholders’ submissions, from 2017 states:

   JFBA [Japan Federation of Bar Associations, Tokyo (Japan)] was concerned no discrimination law comprehensively prohibited discrimination against women, and that 23.7 percent of women had experienced spousal violence, since the revised anti-domestic violence law only applied to cohabitating couples. HRN [Human Rights Now, Tokyo (Japan)] was concerned that marital rape is not explicitly criminalized and the age of sexual consent remains 13 years. Recently proposed amendments to the rape laws are grossly insufficient as the law falls behind international standards, and thus urged amending the Penal Code to expand the definition of rape and to criminalize all sexual conduct without consent.[7]

   [7] Human Rights Council Working Group on the Universal Periodic Review, ‘Summary of Stakeholders’ submissions on Japan’, 2017, A/HRC/WG.6/28/JPN/3,

7. The UN Committee on the Elimination of Discrimination against Women provided the following conclusions regarding Japan, in 2016:

   The Committee is further concerned at:
   …

   (b) Reports of inordinate delays in the issuance of emergency protection orders by courts, which expose victims of violence, including domestic violence, to a risk of further violence;

   (c) Information that migrant women, ethnic and other minorities, and women with disabilities who are victims of violence, including domestic violence, are reluctant to report cases to the authorities,… [8]

   [8] United Nations Committee on the Elimination of Discrimination Against Women, ‘Concluding observations on the combined seventh and either periodic reports of Japan’, CEDAW/C/JPN/CO/7-8, 10 March 2016, 6.

8. The US Department of State’s 2018 Country Report on Human Rights found

   … Domestic violence is also a crime for which victims may seek restraining orders. Convicted assault perpetrators face up to two years’ imprisonment or a fine of up to 300,000 yen ($2,600), convicted offenders who caused bodily injury faced up to 15 years’ imprisonment or a fine up of up to 500,000 yen ($4,400), and protective orders violators faced up to one year’s imprisonment or a fine of up to one million yen ($8,800). NGOs and legal experts pointed out a lack of training for judges, prosecutors, and lawyers about sexual crimes and victims.

   Rape and domestic violence are believed to be significantly underreported crimes, although no recent data are available. Observers attributed women’s reluctance to report rape to a variety of factors, including a lack of victim support, potential secondary victimization through the police response, and court proceedings that lacked understanding for rape victims.  Victims of abuse by domestic partners, spouses, and former spouses could receive protection at shelters…[9]

   [9] 'Country Reports on Human Rights Practices for 2018 – Japan', US Department of State, 13 March 2019.

9. In 2017, The Japan Times reported

   Until the enactment of Japan’s 2001 Act on the Prevention of Spousal Violence and the Protection of Victims, the “domestic” in DV — the acronym commonly used in Japan to refer to abuse in a relationship — often took precedence over the “violence,” meaning police intervention was unlikely until it was far too late. In the five years leading up to the enactment of the anti-domestic violence law, between 100 and 120 women were murdered by their spouses annually.

   Even since the enactment of the law, which was originally proposed not by the government but a group of nonpartisan female lawmakers, the notion that what happens in the home should stay in the home has prevailed, although three revisions in 2004, 2007 and 2013 have sought to address sometimes gaping holes, such as what exactly constitutes domestic violence.
   …
   

   [10] Gilhooly, R, ‘Learning to stand up to domestic violence in Japan’, The Japan Times, 4 March 2017,  

   “(Domestic violence) is a social problem that occurs amid a backdrop of a male-dominated society that discriminates against women,” says Noriko Yamaguchi, founder of one of those organizations, AWARE, and a campaigner for gender equality for more than 40 years. “In Japan, there is still a lack of social awareness that domestic violence is a criminal offense, and while domestic violence by men toward women is often thought of as being a women’s issue, I would argue that it is first and foremost a men’s issue.”…[10]

10. The Japan Times also reported in 2017

    Reports of suspected child abuse has reached a record high of 30,262 cases to welfare authorities in the first half of 2017, exceeding the 30,000 mark for the first time since comparable data became available in 2011, the National Police Agency said Thursday. The number of victims below age 18 reported by police to child consultation centers rose 5,751 from a year earlier amid increased public awareness of the issue. The police offered emergency protection to 1,787 children due to endangerment from January to June, up 236 from a year earlier.

    The increase in reported cases may be due to heightened public awareness that prompts more people to alert authorities to potential child abuse, an agency official said. The child consultation centers provide temporary shelter to children or dispatch welfare staff to look into suspected cases of abuse as a way to keep problems from getting worse.[11]

    Attitudes towards Muslims in Japan

    [11] The Japan Times, ‘Reported child abuse in Japan exceeds 30,000 cases in the first half’, 21 September 2017,

11. According to the US Department of State’s Japan 2016 International Religious Freedom Report:

    The constitution guarantees freedom of religion and requires the state to refrain from religious education or any other religious activity.  It states that the people shall not abuse these rights and shall be responsible to use these rights for the public welfare.

    The government does not require religious groups to register or apply for certification, but certified religious groups with corporate status do not have to pay income tax on donations and religious offerings used as part of the groups’ operational and maintenance expenses…

    In May the Supreme Court upheld a lower court’s decision to award 17 Muslim plaintiffs 90 million yen ($769,000) in total for invasion of privacy arising from reported police profiling and surveillance of Muslims.  The court, however, did not find a violation of constitutional provisions for religious freedom.  Different Muslim community groups subsequently expressed a range of opinions on their experience in the country, from reporting positive relations with the police to saying that official surveillance continued…

    The press reported some Muslim organizations and mosques continued to receive phone calls they considered harassing in the aftermath of the January 2015 killing of Japanese citizens by ISIS.  The National Police Agency directed local police offices nationwide to boost security for Islamic facilities and safeguard Muslims from harassment or illegal conduct directed at them.  A Muslim individual reported receiving threatening phone calls, and notified local police, who were responsive.

    Halal food remained available in many communities.  In July a hotel for Muslim travelers offering halal menus and prayers rooms opened in the Yamanashi Prefecture town of Fujikawaguchiko.[12]

    [12] 'International Religious Freedom Report for 2016 - Japan', US Department of State, 01 August 2017.

12. According to a 2019 article published in New Voices in Japanese Studies 

    Islamophobia has not been explicit in Japan, but the rise of xenophobic movements by ultra-conservative groups in Japan since the 2000s has been identified in academic literature (Yamaguchi 2013; Shibuichi 2015). While these movements mainly target ethnic Koreans or Chinese, one group named Han Gurōbarizumu Kokusai Hoshu Rengō, or Anti-Globalism International Conservative Alliance (hereafter, AICA), started to target Muslims from around 2014…

    While hospitality for Muslims was the most commonly featured topic about Muslims in Japan during the period of my analysis, there were two incidents during that period which could conceivably have affected attitudes toward Muslims in Japan in a negative way. The first occurred in January 2015, when two Japanese citizens were taken hostage and later killed by the so-called Islamic State in the Middle East (Nordland 2015). This incident was widely covered in the Japanese media and was received with deep sorrow in Japan (Miura 2015). At the time, there was concern among Muslims in Japan about the possible rise of anti-Muslim sentiment (Asahi Shimbun 2015a). However, most articles which connected this incident with Muslims in Japan were about strong criticism of Islamic State from Muslims rather than reports about hatred against Muslims. From the time of the incident until the end of the following month, 14 articles in Yomiuri Shimbun and 19 articles in Asahi Shimbun reported the voices of Muslims in Japan criticising the actions of the Islamic State (e.g., Asahi Shimbun 2015c; Yomiuri Shimbun 2015). An article in Asahi Shimbun, published just after the Islamic State announced that they had taken the two Japanese hostages, reported that a sermon about the dignity of life had been delivered in the Tokyo Camii and that Muslims had prayed for the safety of the two Japanese hostages (Asahi Shimbun 2015d).

    The second incident occurred in July 2016, when seven Japanese citizens were killed in Bangladesh, with responsibility claimed by Islamic State (BBC 2016). After this incident, one Yomiuri Shimbun article reported that a mosque in Shizuoka prefecture had received four threatening letters saying “both the Islamic State and you are Islam” and “I will hit you with a bat from behind” (Yomiuri Shimbun 2016b). The influence of these incidents, however, seems to have been limited. According to a book by Ken’ei  Satō (2015), Muslims  in Japan reported that they had not felt any change in Japanese people’s attitudes toward them following the incident of the Japanese hostages. Further, the number of non-Muslim Japanese visiting the Tokyo Camii reportedly increased after the incident, which appeared to motivate Japanese people to learn about Islam (Asahi Shimbun 2015b; Satō 2015, 225). Efforts by Muslims to interact with Japanese society were also highlighted in media coverage from around this time. Both newspapers reported that a mosque in Chiba had established an anti-crime patrol team in cooperation with local residents and police (Yomiuri Shimbun 2016a; Asahi Shimbun 2016b).[13]

    [13] Yamagata, A, ‘Perceptions of Islam and Muslims in Contemporary Japan’, New Voices in Japanese anisees, 11, July 2019,

13. A Japan Times article from 2019 states

    Although there are more than 80 mosques in Japan (with 10 based in Tokyo), Islamic culture remains rather unfamiliar to many people in Japan. Furthermore, as in other countries, Islam tends to get a lot of negative press due to problems with extremist groups and religious fundamentalists. Despite this, Tokyo Camii spokesperson Shigeru Shimoyama says he has noticed a growing curiosity about Islam thanks to the influx of tourists from Muslim countries visiting and, sometimes, moving here…

    Yazid, who was raised in Japan in a Muslim Indonesian family, relates a common encounter, “If I say I’m Muslim, they will be like, “You’re not Japanese?” “When they hear ‘Islam’, it’s not something related to Japan (or to them),” he adds.  “Japan is changing,” says Shimoyama. The seed of Islam has just started … so it is a very important time for Japanese people and Muslims to (get to) know each other.”[14]

    [14] Liew, K, ‘Building bridges with Islam at Tokyo Camii’, The Japan Times, 16 October 2019, >

    The Freedom in the World 2016 - Japan report states

    Freedom of religion is mandated in Japan's constitution, and there are no substantial barriers to religious expression. Aside from the traditional religions of Buddhism and Shintoism, Japan is home to small Christian and Muslim populations. There have been reports of significant state surveillance of Japan's Muslim community; officials have tacitly acknowledged some such programs, and defended them as within legal limits.[15]

    Inter-religious marriages in Japan

    [15] ‘Freedom in the World 2016 – Japan’, Freedom House, 14 July 2016, NGE43874C420, 3.

14. According to a 2019 article published in New Voices in Japanese Studies 

    While the majority of Pakistani, Bangladeshi and Iranian people who came to Japan between the late 1980s and early 1990s left Japan, some obtained long- term resident status through marriage and remained. Most of the Muslims who had come to Japan from those three countries were males in their 20s or 30s, and marriages between Muslim men and Japanese women increased around this time. According to Kojima (2006), among married men from these countries residing in Japan, around 80% of Pakistanis and Iranians and about 50% of Bangladeshis were married to Japanese women as of 2000. Some of these men, especially Pakistanis, owned successful businesses in areas such as used car export and the food industry, and lived stable lives in Japan both legally and financially.
    …
    

    [16] Yamagata, A, ‘Perceptions of Islam and Muslims in Contemporary Japan’, New Voices in Japanese anisees, 11, July 2019,

    In addition to the growing number of non-Japanese Muslim residents in Japan, the number of Japanese Muslims is also growing due to intermarriage between non-Japanese Muslims and Japanese, and the children born to these families.  Tanada estimates that there were around 40,000 Japanese Muslims living in Japan, in addition to Muslim foreign residents, as of 2016 (Tanada 2018b). Assuming this is correct, there were around 170,000 Muslims in total living in Japan at that time.[16]

15. A 2018 article published by Nippon.com describes three Japanese-Muslim relationships, where Japanese wives converted to Islam. One of the couples

    …admits that as members of a religious minority, they have some concerns about people’s views and how their children will be treated down the road. To avoid potential misunderstandings, the pair says they do not go out of their way to make their beliefs widely known, including not even posting in Japanese that the restaurant offers halal options. They do not see it as being secretive, though. “There is no reason to broadcast the fact that we are Muslim,” states Jahangir. “Islam teaches that if you put your best face forward, people will accept you for who you are.”[17]

    Children with non-Japanese and/or Muslim fathers

    [17] Hideyuki, Koda, ‘Love and Faith in Japan: Three Stories of Japanese-Muslim Matrimony’, Nippon.com, 22 March 2018,

1. The US Department of State’s 2018 Country Report on Human Rights found:

   Despite legal safeguards against discrimination, foreign permanent residents in the country and nonethnically Japanese citizens, including many who were born, raised, and educated in the country, were subjected to various forms of entrenched societal discrimination, including restricted access to housing, education, health care, and employment opportunities. Foreign nationals as well as “foreign looking” citizens reported they were prohibited entry, sometimes by signs reading “Japanese Only,” to privately owned facilities serving the public, including hotels and restaurants. Although such discrimination was usually open and direct, NGOs complained of government failure to enforce laws prohibiting such restrictions…

   Senior government officials publicly repudiated the harassment of ethnic groups as inciting discrimination and reaffirmed the protection of individual rights for everyone in the country.[18]

   [18] 'Country Reports on Human Rights Practices for 2018 – Japan', US Department of State, 13 March 2019.

2. According to a 2015 article published by Al Jazeera America

   TOKYO — Ariana Miyamoto was born and raised in Japan and speaks fluent Japanese. But she said most people in her homeland see her as a foreigner. “My appearance isn’t Asian,” she said, “[but] I think I’m very much Japanese on the inside.” Miyamoto, 21, was born to a Japanese mother and an African-American sailor who left Japan when she was a child. In Japan she’s considered a hafu, or half-Japanese. Some people prefer the term daburu to signify double heritage, but Miyamoto said she’s not offended by the word hafu.

   … In March she became the first half-black, half-Japanese woman to be named Miss Universe Japan. Many people in Japan cheered, tweeting messages such as “She represents Japan! Being hafu is irrelevant.” But others complained on social media that she didn’t deserve the title… She said she has heard those kinds of comments since childhood, when she was constantly bullied and even called kuronbo, the Japanese equivalent of the N-word. Some children threw garbage at her or refused to swim in the same pool…

   After spending two years in her teens with her father in rural Arkansas, Miyamoto returned to Japan and dropped out of high school. Then one day a close friend — also a hafu — killed himself, inspiring her to raise awareness about the challenges mixed-race children can face in Japan. And she entered the pageant, looking for a way to speak out…

   Hafu account for a small portion of Japan’s population. According to Japan’s Ministry of Health, Labor and Welfare, approximately 36,000 children with a non-Japanese parent are born every year in the country, accounting for about 3 percent of births. But with a rise in intermarriage, their numbers are growing.

   …  Hafu are making their mark in a country where fitting in is often preferred to sticking out, immigration is restricted to a trickle and the idea that all Japanese belong to the same race runs strong. “There are many Japanese who believe in the purity of Japanese culture and traditions,” Kingston said, “and they have this imagined Yamato race … Everybody in the archipelago comes from this same blood pool, this same DNA. Now, anybody who seriously researches Japanese history knows that this is a myth.”…

   … Hafu with a Korean or black parent tend to have the toughest time in Japan, according to Megumi Nishikura, a half-Japanese, half-Irish-American filmmaker who co-directed the 2013 documentary “Hafu.”  “There’s an unspoken racial hierarchy” inside and outside the hafu community, she said. “If you are half-white, you are considered to be the ideal hafu.” She added that she has heard some people in Japan refer to Asian-mixed Japanese as zanen, or disappointing, hafu.”[19]

   [19] Saberi, Roxana, ‘Being ‘hafu’ in Japan: Mixed-race people face ridicule, rejection’, AlJazeera America, 9 September 2015, >

   A 2003 Washington Post article describes the experience of an American expat married to a Japanese woman:

   Arudou offers up himself -- and his family -- as evidence. Some of the bathhouses he has targeted would accept his older daughter, Amy, 9, who looks Asian like her mother, while refusing Anna, 8, who looks Caucasian, like her dad.  "They would bar one of my kids and take the other because of their appearance," he says.[20]

   Mental Health in Japan

   [20] Washington Post, 'In Japan, US expat fights the Yankee way', 05 July 2003.

3. A 2019 magazine article states:

   Viktoriya Ershova, who has several years of experience working in social welfare in Japan, believes the situation in this country is even more severe than in other developed nations as “adolescents and their parents are less likely to speak to someone about their problems here due to the stigma attached to mental illnesses.” A Russian native who married and divorced in Japan, she recently started a Facebook page to share more about her own experiences as a mother trying to cope with a son who’s been diagnosed with Borderline Personality Disorder (BPD). 
   …

   Also known as Emotionally Unstable Personality Disorder (EUPD), BPD is a chronic mental health condition in which sufferers have difficulties regulating their emotions. This can lead to impulsive behavior, inappropriate anger, low self-esteem, feelings of desolation, fear of abandonment and a detachment from reality. The causes aren’t fully understood, though the majority of mental health professionals believe it’s the result of a combination of inherited or internal biological determinants and external environmental factors, such as a traumatic childhood experience.[21]

   [21] Tokyo Weekender, “Mental Health Support in Japan: Is the System Failing?, by Matthew Hernon

4. A 2018 journal article states:

   There is evidence that stigma-related attitudes toward people with mental illness remain relatively high in Japan compared to other developed countries, including Australia (Griffiths et al., 2006). Stigma-related attitudes are said to increase the under-utilization of mental health services in Japan (Naganuma et al., 2006). Around 80% of those diagnosed with a disorder according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) were found not to have received any mental health services in the past 12 months (Naganuma et al., 2006). There is also evidence that stigma-related attitudes toward people with mental illness vary according to the disorder and are higher for schizophrenia than for depressive disorder (Reavley and Jorm, 2011; Sugiura et al., 2000).

   …
   

   [22] Kasahara-Kiritani M, Matoba T, Kikuzawa S, Sakano J, Sugiyama K, Yamaki C, Mochizuki M,  Yamazaki Y, 2018, ‘Public Perceptions toward Mental Illness in Japan’, June, (Asian Journal of  Psychiatry), looking at participants’ beliefs in the causes for depressive disorder and schizophrenia, the highest number of people listed individual factors such as “own bad character” or “how the person was raised” as causes. A slightly higher number of people, however, cited social factors such as “stressful circumstances in the person’s life” as causes of depressive disorder rather than other causes. This supports previous findings that people tend to have a more negative perception of schizophrenia than of depressive disorder (Griffiths et al., 2006).[22]

5. A 2013 journal article states:

   Regarding knowledge about mental illness, reviewed studies showed that in the Japanese general population, few people think that people can recover from mental disorders. Psychosocial factors, including weakness of personality, are often considered the cause of mental illness, rather than biological factors. In addition, the majority of the general public in Japan keep a greater social distance from individuals with mental illness, especially in close personal relationships. Schizophrenia is more stigmatized than depression, and its severity increases the stigmatizing attitude toward mental illness. …Stigmatizing attitudes in Japan are stronger than in Taiwan or Australia, possibly due to institutionalism, lack of national campaigns to tackle stigma, and/or society’s valuing of conformity in Japan. Although educational programs appear to be effective in reducing mental-health related stigma, future programs in Japan need to address problems regarding institutionalism and offer direct social contact with people with mental illness.

   … It is difficult to determine the primary reason why people in Japan often have more negative attitudes towards people with mental health problems than people in other countries. However, direct comparisons of attitudes towards people with mental illness between Japan and other countries have emphasized the importance of community care that provides opportunities to have contact with those in the community who have mental illness, as well as the launch of a national campaign to reduce mental health-related stigma.

   … In addition, many people have negative attitudes towards people with mental illness, considering them dangerous and unpredictable. Not surprisingly, the majority of the general public in Japan keeps greater social distance from individuals with mental illness in close relationships.[23]

   [23] Ando S, Yamaguchi S, Aoki Y, Thornicroft G, 2013, ‘Review of mental-health-related stigma in Japan’ (Psychiatry and Clinical Neurosciences 2013; 67: 471–482), >

   Another 2013 journal article states: .

   … It was virtually impossible for participants [with mental illness] to obtain employment: most were either fired or not hired as a result of their disorder. Furthermore, participants who were hired had to agree to substandard wages. Some experienced unacceptable workplace transfers, and some did not know why they were fired. They also experienced “unreasonable firing or rejection.” Upon their return after hospitalization, a few participants quit work after being asked if they intended to continue working at the company. Some were fired due to their symptoms. Some did not reveal their condition to others in their workplace, but their mental condition worsened as they continued to work and they eventually did not receive their salary and were fired.[24]

   [24] Yoshii H, 2013, ‘Qualitative study of stigmatization of mental illness in the Japanese workplace: The experience of mentally disabled people’, (Health journal, Volume 5, No.9, 1378-1385), 15 June.

6. A 2018 article in Al Jazeera states: .

   From the 1940s to 1996, Japan's government sterilised people with a mental illness or disability because it deemed them "inferior". The victims of this Eugenic Protection Law kept silent for decades but are now speaking out and demanding an apology and compensation.

   However, the attitudes behind this law still linger today. A belief that all disabled people should be euthanised led to a stabbing spree at a disabled care home in 2016. It was Japan's worst mass killing since world war two.  The parents of the murdered have kept silent, a sign of the shame some in Japan's society still feel towards people with disabilities.

   The Japanese government has been making efforts to improve the lives of people with disabilities by raising employment quotas.  But authorities did not even make their own target, recently admitting they had inflated the number of disabled people employed in 27 government ministries and agencies. In reality, they had only hired half the number of disabled people.[25]

   [25] Al Jazeera, 2018, Japan's Disability Shame, 8 November, >

   A 2016 journal article states:

   In Japan, prejudice and discrimination against people with mental illness persists. People with mental illness are often isolated under the pretext of hospitalization. The 2011 Patient Survey conducted by the Japanese Ministry of Health, Labour and Welfare found that about 320,000 people with mental illness were hospitalized. This represents 27 hospitalized psychiatric patients per 10,000 people in Japan: the largest number worldwide. Hospitalized people have fewer opportunities for close contact with others, which contributes to a vicious cycle that further delays deinstitutionalization. Moreover, people with mental illness are less likely to find
   

   [26] Tanabe Y, Hayashi K, Ideno Y, 2016, ‘The Internalized Stigma of Mental Illness (ISMI) scale: validation of the Japanese version’, (BMC Psychiatry).

   employment than those with physical or intellectual disabilities.[26]

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant submitted her Japanese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Japan. The Tribunal assesses the applicant’s claims against Japan as her country of nationality and receiving country.

8. The applicant claims to fear harm in Japan on the following bases:

   -    ostracism and discrimination because her husband is [from Country 1];

   -    ostracism and discrimination against her children because her husband is [from Country 1];

   -    harassment and targeting because people will perceive her husband, children and her as Muslim; and

   -    violence from her father and lack of protection as a woman in Japan;

   Fears due to her husband being [from Country 1]

9. The applicant described her concerns of being isolated, and her children ostracised, by others in Japan because her husband will be perceived to be Muslim and dangerous.

10. The available country information indicates that Japan is a largely homogenous society with sections of its population being xenophobic and intolerant of mixed families and mixed heritage.

11. If the applicant has to return to Japan it is very likely that her husband will not be able, or not be willing, to travel to and reside there too. The applicant has stated that he will not go to Japan.  Therefore his presence would not provoke adverse behaviour towards the applicant and her children.  However the applicant has taken her husband’s [Country 1] name. Her children also bear his surname and are of mixed Japanese-[Country 1] heritage.  The Tribunal therefore accepts that there will be some awareness that the applicant is in a marriage with [a Country 1 husband] and that her children are of mixed heritage.

12. In view of the information of a level of xenophobia and repudiation of children with mixed heritage the Tribunal accepts that there will be some in Japan who will not want to associate with the applicant and her children.  The Tribunal also accepts there are some in Japan who will choose to avoid the applicant and her children, or treat them insultingly because of a perceived connection with Islam.  The Tribunal accepts this will result in a level of isolation from, and ostracism and insulting behaviour by, some in Japan. While this will be distressing to the applicant and her children the Tribunal does not consider it rises to the level of serious or significant harm.

    Fear of violence from her father

13. The applicant has consistently maintained that her father was physically abusive to her and to her mother in Japan.  She provided details about the abuse in a simple, straightforward manner without appearing to exaggerate her experiences. The applicant’s claims of abuse were also referred to by her treating psychiatrist and psychologist. There is no indication that the applicant has invented her history of abuse by her father.  On the basis of the available evidence the Tribunal accepts the applicant’s father was physically abusive to the applicant in Japan.

14. It is likely that the applicant would be unaccompanied, or with [her] young children, if she returns to Japan.  Without employment or a home in Japan her option would be to reside with her parents again, the only home she has had in Japan.

15. The criterion in s.5J(1)(b) imposes an objective standard, that there be a real chance of  persecution. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

16. At hearing the applicant stated that her father’s violence stopped in her year [number] of education, or around [year] according to the applicant’s education history provided in her Protection visa application. She remained a further [number] years in Japan before travelling to Australia.

17. The applicant stated that since she departed Japan her mother has informed her that the applicant’s father is taking pills and alcohol and his behaviour unpredictable. Her mother has repeatedly left the applicant’s father for temporary periods. 

18. The applicant candidly stated that she did not know what her father may do to her if she returns to Japan.  She expressed concern at the information from her mother that her father was consuming pills and alcohol. She also presented evidence that her father’s animosity to her has increased since she married her [Country 1] husband.

19. In view of her father’s violent disposition, his substance abuse and volatility, his antagonism towards the applicant, her increased vulnerability, and the likely deterioration of her mental health and ability to successfully negotiate confrontation with her father, the Tribunal considers there is a real possibility her father will resume his violent abuse of the applicant if she returns to Japan.  While the chance of this may not be high, the Tribunal is satisfied that it is real and that it is not remote, insubstantial or far-fetched. The Tribunal is therefore satisfied there is a real chance that the applicant’s father will be physically violent to the applicant in Japan, and that the violence will take a serious form. The Tribunal accepts that serious physical violence is serious harm.

20. The available country information indicates that while the authorities’ responses are gradually improving, there is a lack of effective protection for women fearing family violence in Japan. The Tribunal notes reports that women fear re-victimisation from police if they complain about family violence.  The frequency of violence occurring also demonstrates that effective protection, meeting the required standard, is lacking. The Tribunal therefore finds that there is no effective protection for the applicant against the chance of physical violence from her father.

21. The applicant has stated that her father would find her if she tried to live in another part of Japan.  However there is no other indication that her father would take steps to locate the applicant and travel to wherever she is to harm her. The pattern of violence he exhibited seems to be confined to the home, or to a proximity in their relationship. It is difficult to conclude there is real chance that the applicant’s father, affected by pills and alcohol, would be able to locate the applicant in another part of Japan and would then go there to harm her. The suggestion he would appears far-fetched.  The Tribunal is not satisfied the real chance of serious harm to the applicant, from her father, relates to all areas of Japan.

22. The Tribunal therefore finds that the applicant’s claims to fear harm in Japan do not meet the definition of ‘well-founded fear of persecution’ in s.5J of the Act.  She therefore does not meet the definition of a ‘refugee’ set out in s.5H of the Act.

    Complementary Protection

23. The complementary protection criterion refers to a real risk of suffering significant harm in a receiving country.  ‘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.

1. The Tribunal considers that the serious harm the applicant is at risk of in Japan also amounts to significant harm under the Act, in that the serious physical violence by her father constitutes cruel treatment.

2. 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.

3. The Tribunal has found above that there is no effective protection for the applicant in Japan. The Tribunal therefore finds that that the applicant cannot obtain from an authority of Japan, protection such that there would not be a real risk that she will suffer significant harm.

4. The Tribunal is satisfied that the risk of significant harm is faced by the applicant personally in that the abuse from her father is directed against her as his daughter.

5. The applicant has given evidence that if she returns to Japan her mental health is likely to deteriorate again.  She stated she has [condition 1] but has been diagnosed with [condition 2]. The Tribunal accepts these are forms of mental illness.  She referred to being in a ‘dark place’ and harming herself when she lived in Japan.  She has received treatment and the support of her husband in Australia so that she reports feeling recovered in Australia.  However there is an observable fragility in the applicant’s emotional demeanour and her responses at hearing suggested that her mental health may require monitoring, particularly if she is removed from a safe and supportive environment. The applicant stated that she would be ‘crazy’ and need to be hospitalised if she is returned to Japan. The Tribunal accepts that in an environment she finds unsafe, insecure, and unsupportive there is a likelihood her mental illness will resurface if the applicant is returned to Japan.

6. The applicant would therefore be in Japan as a woman alone or with [number] young children, who has a mental illness. The country information indicates there is a high level of stigma against people with mental illness in Japan. This translates into societal avoidance and a lack of understanding, and difficulty obtaining and keeping employment.   

7. The Tribunal considers there is a high possibility of the applicant’s mental health being further damaged if she has to live alone in an unfamiliar part of Japan.  The Tribunal considers she would have great difficulty finding accommodation, employment and support.  In view of the applicant’s personal characteristics, as a woman alone or with [number] young children, and who has a history of mental illness, the Tribunal is not satisfied it would be reasonable for her to relocate to another part of Japan to avoid the risk of significant harm from her father.

8. The Tribunal is therefore satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Japan, there is a real risk that she will suffer significant harm.

9. There is no indication that the applicant has a right to enter and reside in a third country. The Tribunal accordingly finds she is not excluded from Australia’s protection by s.36(3) of the Act.

   CONCLUDING PARAGRAPHS

10. 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 s.36(2)(a).

11. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

    Melissa McAdam

    
    

    Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (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.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

October 11, 2019,

Key Legal Topics

Areas of Law

• Immigration

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Statutory Construction

• Remedies

• Jurisdiction

• Standing

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Citations

1703365 (Refugee) [2020] AATA 1354

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

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