1703515 (Refugee)

[2020] AATA 4175

1703515 (Refugee) [2020] AATA 4175 (10 August 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1703515

COUNTRY OF REFERENCE:                   Japan

MEMBER:  Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 August 2020 at 11:54 am (WA time)

DATE OF WRITTEN RECORD:                25 August 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision under review.

Statement made on 25 August 2020 at 3:22pm

CATCHWORDS
REFUGEE – protection visa – Japan – discrimination of foreigners – previous marriage to an African-born man – mixed-race children – delay in seeking protection – threshold for ‘significant harm’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
Iyer v MIMA [2000] FCA 52
MIMA v Haji Ibrahim (2000) 204 CLR 1
MMM v MIMA (1998) 90 FCR 324

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 February 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

1. At the hearing on 10 August 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons.

STATEMENT OF DECISION AND REASONS

1. Attached to this statement is a corrected transcript of the oral decision with reasons delivered to the applicant at the hearing.

DECISION

1. The Tribunal affirms the decision under review.

Dr Colin Huntly Member

ORAL DECISION OF MEMBER HUNTLY  [11.04 AM]

1. MEMBER: This is an oral decision with reasons delivered to the applicant in person by means of the Microsoft Teams video conferencing facility.

Introduction

1. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994 (the Regulations). An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on ‘complementary protection’ grounds, or be a person who is a member of the same family unit as such a person and that person holds a protection visa of the same class.

1. Where relevant, the Tribunal has had regard to the policy guidelines prepared by the Department relating to refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), as is required by Ministerial Direction No.84.

1. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:

·‘Members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1]

·‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application for review.’[2]

[1]           At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

[2]           At [8.1].

Credibility

1. Before looking at my findings, I note that on questions of credit I need to give benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments. I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.

1. Consistent with the various decisions commencing with those in the matter of Iyer,[3] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine

fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.

[3]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

Identity and receiving country

1. As to identity, according to the applicant’s movement record, she arrived in Australia for the first time [in] July 2013, on a [visitor] visa.

1. The applicant departed Australia [in] August 2013 and returned to Japan.

1. [In] May 2015, the applicant again arrived in Australia on a [visitor] visa. She departed Australia briefly [in] October 2015, and returned again to Australia on [a visitor] visa [in] October 2015.

1. [In] April 2016, she again departed Australia briefly and returned [in] April 2016, travelling on a [visitor] visa.

1. The applicant applied for a protection visa in Australia on 13 May 2016.

1. The applicant claims to be a citizen of Japan and provided a copy of her passport to the Department with her application. I have had an opportunity to review this information and I have interviewed the applicant on three occasions.

1. On the basis of the information before me, I find that the applicant is a citizen of Japan, which is the receiving country for the purposes of the refugee and complementary protection assessments.

1. In light of the findings I have made below, it is not necessary for me to make findings relating to s.36(3) of the Act relating to third country protection.

Proceedings

1. The applicant appeared before the Tribunal on three occasions to give evidence and present arguments.

1. The applicant was assisted in this review process by the services of a registered migration agent and hearings were held with the assistance of an interpreter fluent in both the English and Japanese languages.

1. The initial hearing with the applicant was held on 9 April 2020 by telephone. The second hearing was held with the applicant to discuss her claims for protection substantively on 13 July 2020. This was held by means of video conferencing using the Microsoft Teams platform.

1. The Tribunal met with the applicant for the third and final time on 10 August 2020, using the Microsoft Teams platform. The hearing portion was held by telephone connection, and the decisions with reasons were delivered to the applicant by means of a combination of telephone (representative) and video conferencing (applicant) using Microsoft Teams.

Claims for protection

1. A delegate of the Minister refused to grant the applicant a protection visa on 15 February 2017.  The applicant applies to the Tribunal for a review of that decision.

1. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations because she failed to meet the requirements of s.5H of the Act.

1. The delegate further found that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion at s.36(2)(aa) of the Act.

1. In summary, the reasons why the delegate made this finding are recorded at page 4 of the delegate’s record of decision. After summarising the available country information sources relating to discrimination of foreigners in Japan, the delegate made the following statement:

While I acknowledge that racial discrimination is present in Japan when taking the applicant’s circumstances and available country information into consideration, I am not satisfied that there is a real chance that the applicant, a Japanese national will suffer serious harm as a result of being previously married to an African man and due to having two half African children, who are currently residing in Australia as Australian citizens.

1. Noting at Part 5 of the decision that the threshold for significant harm is the same as the threshold for serious harm,[4] the delegate found that the harm complained of essentially was not ‘significant harm’ for the purposes of the Act.

[4]          At p.5.

Before the Tribunal

1. At the first hearing, I took you through your claims for protection and I noted that, in addition to the threshold questions raised by the delegate, your apparent delay in seeking protection and your return visits to Japan, together with your vagueness about the agents of harm from whom you claim to fear persecution in Japan, suggested that your claims for protection may not have been credible. These matters were discussed further at the second substantive hearing and again at the third substantive hearing.

1. In addition to your own statements in support of your claims for protection, I also note two detailed written submissions made on your behalf by your migration agent. These are dated 4 July 2020 and 3 August 2020. These submissions are accompanied with alternative sources of country information and I have had regard to this information and these submissions.

Country information

1. In addition to the country information referred to by the delegate and also the applicant’s migration agent, I note that there is no country information report produced by DFAT for Japan. However, I note that the United States Department of State has issued a human rights report for Japan.[5]

   [5]US Department of State ‘2019 Country Reports on Human Rights Practices: Japan’ 11 March 2020 ( accessed 8 August 2020).

1. I am prepared to accept that the available country information that has been surveyed in the course of this application by the delegate, the applicant’s representative and the Tribunal does demonstrate a degree of cultural chauvinism and discrimination towards non-national residents and people of ethnically diverse backgrounds in Japan.

1. I note with particular regard in this decision, the threshold question of what constitutes ‘serious harm’ at s.5J(4) of the Act. In the applicant’s agent’s submissions of 3 August 2020, particularly around the third page.

1. While I accept the thrust of the submissions made by the applicant’s representative to the Tribunal about the qualitative aspects of persecution and serious harm, I nevertheless am required to follow the law as I find it. I have made particular reference to the High Court’s discussion of the threshold question under the Convention Standard on which the current statutory definition is based in the case of Chan v MIEA, where Mason CJ held that serious punishment or penalty, or the imposition of some significant detriment or disadvantage, for a Convention reason will amount to persecution and that harm short of interference with life or liberty may still amount to persecution. His Honour stated that:[6]

…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage ... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ...

[6]Chan v MIEA (1989) 169 CLR 379 at 388. In SZTEQ v MIBP (2015) 229 FCR 497 the Court opined that, rather than suggesting that any deprivation of liberty is within the concept of ‘being persecuted’, it is clear the High Court in Chan understood the Convention term ‘persecution’ to require conduct of a certain level of seriousness or intensity, taking into account that threats to life or freedom are more readily characterised as having the necessary quality of seriousness or intensity of harm: at [99]–[100]. See also SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.

1. I further note that In MIMA v Haji Ibrahim, McHugh J emphasised the degree of harm that would be required to constitute persecution. McHugh J made the following observation:[7]

The Convention protects persons from persecution not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.

[7]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].

1. In the case of MMM v MIMA, the applicant claimed that his family would disown him if they discovered his homosexuality. The Court held that such treatment could not be regarded as persecution within the meaning of the Convention as it is a purely private matter, and the general standards of civilised countries do not suggest that adults not under a disability have a right to protection when, for private reasons, their families reject them:[8]

   [8]MMM v MIMA (1998) 90 FCR 324 at 327 referring to Applicant A v MIMA (1997) 190 CLR 225 per Brennan CJ. The Court’s reasoning is broadly consistent with the discussion of ‘protection’ and ‘persecution’ in the joint judgment of Gleeson CJ with Hayne and Heydon JJ in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

Persecution for the purposes of the Convention connotes some official approbation of the feared conduct, or at least official failure or inability to do something about it, when the general standards of civilised countries would entitle the putative refugee to the protection of the State … There is nothing in such general standards to suggest

that adults not under a disability have such an entitlement when, for private reasons, their families reject them.

1. I acknowledge the submissions of the applicant’s representative, suggestive that Japan somehow fails to meet the requisite standard of a ‘civilised country’ for the purpose of the relevant test. However, I do not believe that a fair reading of the available country information referred to above supports this proposition.

Applicant’s claims

1. The delegate summarises the applicant’s claims at page 2 of the decision record provided to the Tribunal by the applicant with her application for review:

·The applicant was previously married to an African man with whom she has two children.

·Both the applicant’s ex-husband and her two children are Australian citizens residing in Australia.

·If the applicant returns to Japan, she will be discriminated against and subjected to physical attacks from her co-workers, family and the general public due to racial discrimination.

1. Early in proceedings before me, the applicant indicated to me that she had since reconciled with her former husband and that the applicant was domestically cohabiting with her former husband and their two sons and that they had been living together again as a family unit since October 2018.

1. The applicant gave evidence that she had returned to Australia in 2015 with her children so that they could live with their father and his former partner and become Australian citizens.

1. The applicant’s subsequent return to Australia was for the purposes of assisting with the care of her sons, as her ex-husband’s former partner did not care to look after the applicant’s children while he was working away from home.

1. I note that a psychologist report dated 24 May 2020 from [Mr A] (Psychologist), records some findings relating to the applicant’s treatment by that registered psychologist on six occasions.  This report suggests that separation from her children would result in distress and anxiety to the applicant; that the applicant meets the diagnosis of depression; and, that this finding relates to the applicant’s self-reports during counselling sessions around the possibility that she might be separated from her children as a consequence of being returned to Japan.  I note that, for legal purposes, a return and the circumstances surrounding a return (including consequential separation from family members) does not constitute ‘significant harm’ for the purposes of s.36(2)(aa) of the Act.[9]9

[9]The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A). See SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).

1. I also note that there have been no submissions from the applicant or her representative that would suggest that the applicant would be denied appropriate treatment for anxiety or depression on return to Japan or would otherwise be unable to access such treatment.

1. At the third hearing, I asked for clarification about when the applicant started experiencing what she described as ‘persecution’ in Japan. The applicant stated that it was sometime after 2007. She indicated that the harassment and the intimidation that she experienced was ‘being teased’; experiencing herself as the subject of ‘gossip’; and, ‘being stared at’ because she had mixed-race children to her African-born husband.

1. Agents of harm identified by the applicant as having perpetrated this mistreatment included her former friends, teachers, work colleagues and strangers. She stated that the intensity of this harassment came and went but she felt it most days. This harassment reached its peak in 2015, around the time the applicant decided to bring her children to Australia to be with their father.

1. The applicant indicated that, in 2008, when she returned to Japan with her then husband, they were left in the carport in her parents’ car and were not invited into the house. This was because of their rejection of the applicant’s marriage to an African-born man and their refusal to accept both the relationship and, subsequently, the children born to that relationship.

Findings

1. I have considered the evidence, both given at the hearings and also in the applicant’s written submissions and those of the applicant’s representative, and I accept that the applicant has been the victim of the discrimination she has described relating to the ethnicity of her husband and the parentage of her children.

1. However, I find that this discrimination does meet the requisite standard of ‘serious harm’ to qualify as persecution for the purposes of the refugee criterion at s.5J(4)(b) as described at s.5J(5) of the Act. Accordingly, I find that the applicant does not meet the requirements of s.36(2)(a) of the Act for refugee protection in Australia.

1. Having found that the applicant does not meet the requirements for protection in Australia under the refugee criterion, I have also considered the complementary protection criterion in s.36(2a)(a) of the Act.

1. I note that the threshold test for the real risk of ‘significant harm’ as described at ss.5(1) and 36(2A) of the Act is the same as that which applies to the real chance of serious harm under s.36(2)(a) of the Act. Accordingly, for the reasons I have already given, I am not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Japan, there is a real risk that she would suffer significant harm now or in the reasonably foreseeable future.

1. I also note that there is no suggestion that the applicant is a member of the same family unit as a person who engages the complementary protection or refugee protection provisions for the purposes of s.36(2)(b) or 36(2)(c) of the Act.

1. I have also considered the request that I refer the matter to the Minister for Ministerial Intervention. However, as discussed with the applicant’s representative at the hearings, I find that I cannot do this, given both the Ministerial Guidelines relating to the ‘Ministerial Intervention Power’ at s.45B of the Act, and the Ministerial Guidelines relating to ‘Ministerial Powers under ss.351, 417 and 501J’.

Decision

1. The Tribunal affirms the decision under review.

END OF ORAL DECISION  [11.54 am]