1705574 (Refugee)

[2018] AATA 2931

1705574 (Refugee) [2018] AATA 2931 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705574

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Michael Hawkins

DATE:19 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 July 2018 at 9:50am

CATCHWORDS
Refugee – Protection Visa – Vietnam – Whether the applicant has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship – Where the applicant has destroyed their passport – Whether the applicant has a reasonable explanation for the destruction or disposal – Where applicant claims they cannot recall their reasons – Where applicant has repeatedly misled the Department – Applicant does not have a reasonable explanation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 45AA, 65, 91R, 91S, 91WA, 499
Migration Amendment (Protection and Other Measures) Act 2015
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES
Minister for Immigration and Ethnic AffairsandMcIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 30 June 2014 and the delegate refused to grant the visa on 20 April 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The matter is before this Tribunal by reason of a consent order of the Federal Circuit Court of Australia of [a particular date in] February 2017.

5. The applicant appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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

   Refugee criterion

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

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

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

19. ‘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.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

    Information obtained from Protection Visa Application and Entry Interview:

23. The applicant is [a particular age] man born in [Village 1], Nghe An, Vietnam.

24. The applicant is of the Christian faith, Vietnamese ethnicity and he speaks Vietnamese only.

25. The applicant attended school in [Village 1] [between certain years], completing Year 9.

26. The applicant’s mother and father and brother and sister live in Vietnam in the same village.

27. The applicant stated that he worked in [Country 1] during 2009 in [a particular] industry, as [Occupation 1].

28. The applicant has worked in Vietnam from 2010 to 2012 in the [a particular] industry as [Occupation 1].

29. The applicant arrived in Australia as an unlawful maritime arrival [in] May 2013.

30. The applicant applied for a protection visa on 30 June 2014.

31. The applicant attended an interview with the delegate on 14 October 2016. The applicant did not provide additional information in support of his claims prior to the decision by the delegate. The applicant’s representative did provide a submission prior to this hearing.

    Claims:          

    From Protection Visa Application Form and subsequent correspondence:

32. The applicant claims to be a Catholic member of the [a particular parish] in Nghe An Province.

33. The applicant claims to have been [in a particular position] of [a particular section of the parish]. In his capacity he claims to have been responsible for [various religious activities] among other responsibilities.

34. The applicant claims to have been approached by the local police 3-4 times and warned about his activities with the Church. On one occasion he claims to have been physically assaulted, namely, being grabbed by the collar and slapped on the face.

35. The applicant claims that [a number of] months after he arrived in Australia two police officers came to his parents’ house and asked for his whereabouts.

36. The applicant claims that he grew up in Nghe An province, and in 2009 moved to Saigon where he stayed until June 2012 working [in a particular occupation] in [a particular] business. Then he spent June-July in his home town before once again returning to Saigon where he remained through to January 2013. In January he visited his village and then departed Vietnam, arriving in Australia on [in] May 2013.

37. The applicant claims he fears returning to Vietnam because he is an active Catholic, who left the country illegally and has sought asylum in a foreign country.

38. The applicant claims that his details were disclosed online by the Australian government in a data breach and for this his fears are exacerbated. He fears being severely harmed or maybe killed by the authorities.

    From Interview with Delegate:

39. The applicant claims that his [relative] had been involved with the Catholic Church.

40. The applicant claims that his [relative] was jailed for an extended period as a result of his religious involvement.

41. The applicant claims that his [relative] was only released after priests petitioned.

42. The applicant claims that he is afraid the same thing will happen to him.

    Evidence:

43. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and signed on 16 June 2014, lodged on 30 June 2014 (“visa application”);
    • The applicant’s identity documents being a certified copy of Vietnamese Identity Document;
    • The protection visa decision record (‘delegate’s decision record’) of 20 April 2015;
    • Submission from the applicant’s representative dated 12 July 2018;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Vietnam, published on 21 June 2017.

    Country of reference / receiving country

44. The applicant claims to be a Vietnamese national. Based on the copy of identity documentation, including his identity card, provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Vietnam is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

45. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

46. The Tribunal welcomed the applicant and explained that it would like to acquire a better understanding of the applicant’s background. The Tribunal discussed with the applicant his place of birth and that his parents and siblings still resided in his village in Vietnam. The Tribunal confirmed that the family were all Catholics and that they were traditional practicing Catholics in that from as early as he can remember, the family all went to church together on a Sunday.

47. The Tribunal noted that the applicant stated that he went to school [between certain years], completing Year 9. The applicant responded that he completed Year 12. The Tribunal asked how that could be, as his previous statement was consistent; [the range of years provided] was nine years. He said he didn’t know. The representative explained the Vietnamese school system of there being three segments, and that perhaps the applicant was referring to when he finished middle school. The Tribunal said it would consider that further.

48. The Tribunal asked the applicant about his experience in [Country 1]. The applicant denied ever having stated that. The Tribunal reminded him that he had said that in his entry interview.

49. The Tribunal asked about the applicant’s work as [Occupation 1] in Vietnam. The applicant was hesitant to reply. The representative responded suggesting there was confusion in interpretation and that perhaps it should mean [a different occupation] in the [same] industry. The Tribunal promised to return to that later when it considered his claims as to working in [another] industry.

50. The Tribunal discussed with the applicant his initial claims and statements to the interviewers that he was under 17 years of age. Asked why he stated he was under 17, he said he just followed what some of the others on the boat did, thinking they would receive preferential treatment if they were regarded as a child. The Tribunal then confirmed with the applicant that everything he had told the entry interviewer was actually untruthful, designed to maintain the fiction that he was under 17, when in fact he was [significantly older]. He said that was correct, but that he told the department interviewer the truth. He said that saying he was [an Occupation 1] was consistent with being a child. The Tribunal reminded him of his statements as to his education, which he had minutes before stated he could not remember. He stated at entry that he was born in [a particular year], and that would be consistent with his starting school [in the year previously provided] and finishing [in the year previously provided], which was when he actually did finish school. The applicant agreed that was likely the case.

51. The Tribunal confirmed that the applicant visited [Country 2] after finishing Year 12. He said that he had. He stayed for over a month, and it was a holiday. He didn’t intend to work in [Country 2]. The Tribunal confirmed that the applicant had a passport, as it would have been required to travel to [Country 2]. The applicant confirmed that he did have a passport.

52. The Tribunal asked the applicant about his trip to Australia. He said he left [City 1] by boat and then got on another boat and was picked up by the Australian Navy. The Tribunal asked whether he stopped in [Country 3]. He said he didn’t know as he was terribly sea sick. The Tribunal reminded the applicant that he had said on entry that he came through [Country 3]. He stated it was on a deserted island that they changed boats.

53. The Tribunal then engaged in a long discussion with the applicant and the representative about how the people smugglers were funded. At first the applicant denied that he travelled with people smugglers. He said his parents paid people to bring him to Australia. He said he didn’t know who they were at that stage. He said that his parents did not give any money to him.

54. The Tribunal reminded the applicant of what he had said at his entry interview. He had told the interviewer that he paid the coach driver [a particular amount] to take him to [City 1] (a trip that took [a number of days]). He then paid a motor cyclist [an amount] to take him to the boat. He said that his parents gave him [an amount of money]. The interview went on to discuss where his parents got the money from and he said he assumed they borrowed it. The representative suggested there was a misunderstanding about what was meant by the parents “giving” him the money. She said it was not a gift as such and didn’t mean they physically gave him the money. The applicant said that he paid the coach driver and motor cyclist and fed himself using his own money that he had saved up. The Tribunal asked where the [money] went that his parents gave him. He said he didn’t know as he wasn’t aware of what arrangements his parents had made with the boat people.

55. The Tribunal sought to understand what involvement his parents had in his trip to Australia. He said his parents told him to go to [City 1]. The applicant said he knew he was coming to Australia, but did not know he was going to be a refugee. He said he was just fleeing Vietnam.

56. The Tribunal asked whether his parents helped pay for his trip to Australia. He replied that his parents gave him the phone number of someone called “[Mr A]” who he was directed to call for instructions.

1. The Tribunal persisted with trying to understand whether his parents paid for his carriage to Australia. In the end the applicant said that he doesn’t know what his parents paid, who they paid, or even whether they paid the people smuggler. He then recalled that he probably did tell the entry interviewer that his parents gave him the money, as he was maintaining the fiction that he was under 17 years of age and how else would he have got that sort of money.

2. The Tribunal read to the applicant his claims as set out in paragraphs 32 to 42 above.

3. The applicant confirmed that the claims were all accurate and complete. The representative confirmed that she believed the claims were accurate and complete.

4. There were no additional claims.

5. The Tribunal noted that the applicant arrived in Australia [in] May 2013 and made a protection visa application on 30 June 2014.

6. The Tribunal asked the applicant why he didn’t make his protection claims earlier. The applicant replied that he didn’t know. He said he was in detention and had no control over what he could do. He said he was in detention until 2015. The Tribunal suggested it was strange that given he was being given advice and he was with a lot of others who would have been claiming protection, that he would not move to secure his claims. He said he didn’t know.

7. The representative suggested that as he was in detention, he wasn’t going anywhere so he wasn’t a priority. She noted two firms were giving them advice and that perhaps they didn’t consider him a priority.

8. The Tribunal noted that there had been a number of statements presented by the applicant as to his age and indeed his name. He stated on arrival that he was [Name 1] born on [Birth Date 1]. The Tribunal asked the applicant when he decided to tell the truth about his age. He said when he learned about his ability to claim as a refugee.

9. The Tribunal further noted that the applicant was the subject of an age determination assessment, and it was determined on 17 June 2013 that he was over 18. On 25 June 2013, the applicant declared on a Biographic Details Confirmation Form that he was [Name 1] born on [Birth Date 2]. He repeated these details at his entry interview on 3 July 2013.

10. However it was on his Protection Visa Application form, signed on 16 June 2014, that he stated that his name was [applicant name] born [Birth Date 3].

11. The Tribunal asked the applicant why he had lied about his age on entry and up till his Visa Application. He said he just followed the trend of what some others on the boat were doing when they were intercepted.

12. The Tribunal asked whether the people smugglers told him to lie about his age. He said he couldn’t remember them saying that, he just remembers following what the others did.

13. The Tribunal asked the applicant when he destroyed his passport. He said he couldn’t recall accurately. He said that once he got on the boat he didn’t think he would need it any more. The Tribunal asked him again, could he remember whether it was before he landed in [Country 3] or Australia. He said he just can’t remember, but he said he didn’t think he would need it any more. The Tribunal asked him how he destroyed the passport. He said he couldn’t remember how he did it either. He said one of the other people might have done it for him. He couldn’t recall. The Tribunal confirmed that he had it when he left Vietnam.

14. The Tribunal reminded the applicant that he had told the interviewer on entry that he had destroyed his passport. He had also stated on his Protection Visa Application form that he had destroyed his passport.

15. The Tribunal again queried his reason for destroying his passport. It reminded him that he had been to [Country 2] before and had needed a passport to leave Vietnam and to enter [Country 2] and to do the same on return. It wasn’t plausible to think that he wouldn’t need it, unless he knew he would not be going through an immigration checkpoint. He said he didn’t think he would need it again.

16. The Tribunal recalled that the applicant had subsequently provided his birth certificate and Identification documents to the department.  

17. The Tribunal explained to the applicant and to the representative that it understood this evidence as the applicant having destroyed or disposed of, or having caused the destruction or disposal of, his passport. The Tribunal advised the applicant and the representative that it would now need to consider the possible application of s.91WA of the Act.

    CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA

18. The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of or destroyed an identity document.

19. Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.

20. The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[1] including this application.

    Did the applicant dispose of or destroy documentary evidence of his identity?

    [1] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015

21. The applicant gave evidence confirming that he had destroyed his passport. His evidence was consistent with what he had told the interviewer on entry and again with what he had stated in his Protection Visa Application form.

22. Having considered all of the evidence the Tribunal finds that the applicant caused the destruction or disposal of his passport being documentary evidence of his identity, nationality or citizenship.

    Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?

23. The Tribunal asked the applicant whether he had an explanation for disposing or destroying or causing the disposal or destruction of his passport.

24. The applicant replied that he couldn’t recall when or how he destroyed his passport. He couldn’t recall why he destroyed his passport.

25. The representative responded that the applicant had provided his true identity documents to the department. The Tribunal acknowledged that, and said that it was satisfied that the applicant had satisfied the second limb of the qualification, but that it was struggling to accept the applicant’s explanation as to why he destroyed it. The Tribunal stated that this was quite problematic.

26. The Tribunal advised the applicant and the representative that on the evidence presented it was not yet persuaded as to the reasonableness of the explanation for destroying or disposing of the passport.

27. The Tribunal has given long consideration to the applicant’s responses.

28. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic AffairsandMcIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

29. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

30. Credibility was always going to be an issue in this matter, as the applicant readily admitted to lying about his identity and age, only telling the truth about both when he completed his protection visa application. Even after having an age identification assessment, he merely advanced his date of birth by [a number of] years, until, as he said at this hearing, he decided to tell the truth as to his true identity and age when he filled in his forms.

31. The Tribunal considered the applicant’s response as to why he destroyed his passport.

32. His only explanation “that he didn’t think he would need it anymore” was, as suggested by the Tribunal, somewhat implausible given his previous travel experiences.

33. The Tribunal then considered the applicant’s response as to why he destroyed his passport against the background of him having repeatedly misled interviewers about his identity and age.

34. A more likely explanation is that he destroyed his passport in order to maintain his claim that he was under 17 years of age.

35. But it is only necessary for the purpose of this review and the requirement of the provision for this Tribunal to find that there was not a reasonable explanation as to why he did destroy it.

36. There are many explanations tendered by people in similar situations to the applicant as to why they destroyed or disposed of their passports. Such explanations have included:

    ·that the people smugglers made them destroy them;

    ·that they were fearful for their lives or safety if they didn’t follow the commands of the people smugglers;

    ·that everyone else was disposing of their passports;

    ·that their passports were confiscated;

    ·that they panicked when they saw the Navy.

37. The Tribunal is aware that according to a number of articles, it is "well known that agents or 'people smugglers' who arrange unauthorised passage for refugees will confiscate or order identity papers destroyed".[2] This could be for a number of reasons but likely because the people smugglers "who want to ensure there is no paper trail that might lead authorities to their eventual arrest".

    [2] Jay Fletcher, "Busting three asylum seeker myths", Greenieft Weekly (online) 11 July 2013 < Refugee Action Coalition, Why Do Asylum Seekers Destroy Their Passports? (.d.) <>

    It is also stated by the Refugee Advice & Casework Service ("RACS") that:

    People smugglers may confiscate documents or require people to destroy their documents In order to protect smuggling networks. In circumstances in which documents are retained by smugglers, the asylum seeker may be instructed by the people smuggler to tell Australian officials that the asylum seeker discarded the document.[3]

    [3] Refugee Advice & casework Service, Migration Amendment (Protection and Other Measures) Bill 2014 Submission by the Refugee Advice & Casework Service (Aust) Inc. (4 August 2014) page 10 <>

    The applicant did not advance any of those explanations. He merely stated that he didn’t think he would need his passport again.

38. This leads to the Tribunal’s assessment of the reasonableness of the applicant’s explanation for destroying or disposing of his passport.

39. The applicant did not attempt to travel to Australia conventionally. He knew that coming to Australia in the way that he did was irregular. The path through [Country 3] was intentional as was his intention to engage with a people smuggling operation. His parents assisted his passage in some way, even if it was only by giving him the number to make contact with “[Mr A]”. He was [a particular] age when he left, he was well educated (to Year 12), and he claims he paid his own way (at least the coach and motor cycle components of the trip). The applicant presented to the hearing as an intelligent young man. He knew he was coming to Australia. He knowingly maintained the fiction as to his identity and age until he was assessed as being over 18 years of age, and again maintained a false identity and age until he lodged his Protection Visa Application when he truthfully identified himself.

40. Accordingly, the Tribunal finds that the applicant does not have a reasonable explanation for disposing of documentary evidence of his identity, nationality or citizenship.

41. For the reasons given above, s.91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s.91WA.

100.   Whilst the Tribunal discussed the applicant’s claims at length during the hearing, including as to his Catholicism and the claims arising therefrom, and his claims as to the data breach and him returning as a failed asylum seeker, and considered the representative’s detailed submissions relating thereto, in light of the findings above in relation to the applicant’s destruction or disposal of his passport without reasonable explanation, it is not necessary for the Tribunal to further consider these claims.

Overall conclusion:

101. For the reasons given above, s.91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s.91WA.

DECISION

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

Michael Hawkins
Member