1706368 (Refugee)

[2021] AATA 5045

1706368 (Refugee) [2021] AATA 5045 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706368

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Nicholas McGowan

DATE:25 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made 25 October 2021 at 10:14am

CATCHWORDS

REFUGEE – protection visa – Cambodia – no appearance at departmental interview and consent to tribunal deciding review without hearing – applicant’s responsibility to specify claims and provide evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J(1), 36(2)

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 dependants.

WRITTEN STATEMENT OF DECISION AND REASONS

1. The applicant applied to the Tribunal on 28 March 2017 for a review of his protection visa (Subclass XA-866) refusal decision by the Minister’s delegate (made on 9 March 2017).

2. There is no evidence or claim that the applicant is a member of a family unit as a non-citizen in respect of whom the Minister has been satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant: Section 36(2)(b) and Section 36(2)(c) of the Migration Act 1958 (the Act).

3. The second named applicant is a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and who engages Australia’s protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. As the Tribunal has refused to grant the protection visa to the first name applicant (the ‘applicant’), the second named applicant does not satisfy s.36(2)(b) or s.36(2)(c) of the Act. It follows the Tribunal refuses to grant the second named applicant a protection visa.

   Mandatory Considerations

4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines.

5. The Tribunal has taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that it is relevant to the decision under consideration.

   Migration history

6. The applicants migration histories are outlined in the Minister’s delegate’s decisions dated 9 March 2017 as outlined in ‘Part 3’.

   Identity

7. The Department of Immigration has previously accepted the applicants identities as claimed.

8. There is no evidence or claim before the Tribunal that any of the documents provided in respect the applicants identity are bogus documents as defined in Section 51 of the Act, and no check of the Department’s relevant systems raised any concerns with the relevant authorities that the applicants had or have given a false identity.

9. Given all the above and based on the information in the applicant’s Department of Immigration file, the applicants have satisfied the Tribunal of their identity as claimed.

   Receiving country

10. As the Tribunal has found the applicants are nationals of Camboida, and there is no evidence (or claim) before the Tribunal that the applicants hold any other citizenship or have a current right to enter or reside in a third country) the Tribunal accepts section 36(3) of the Act does not apply to them. Accordingly, the Tribunal finds that for the purposes of this review, Cambodia is the applicants receiving country.

    Protection claims

11. The applicants protection visa application forms (Form 866 Part A, Form 866 Part B and Form 866 Part C) outline the protection claims and are contained in the Department’s case file CLF2014/143685.

    Interview

12. The applicant was invited to attend an interview as part of the Minister’s delegate’s consideration of the Protection visa applications. The first named applicant advised the delegate on 7 March 2017 that there would be no attendance at the scheduled hearing and requested a ‘refusal letter’ in order to apply for review.

    Tribunal hearing

13. As the Tribunal was unable to make a favourable decision on the information before it alone, on 30 September 2021 the Tribunal invited the applicants to attend a hearing scheduled for 22 October 2021.

14. On 19 October 2021 the Tribunal received a ‘Hearing response’ form from the applicants advising they would not attend, and consenting to the Tribunal to proceed to make a decision on the papers without the need to allow them to appear or provide further evidence whatsoever.

15. Relevantly, the applicant’s Protection visa application has been decided on all the available information in the applicant’s protection visa application forms (outlined above under the heading: ‘Protection claims’).

    Analysis - credibility of claims

16. In determining whether an applicant is entitled to protection, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.

17. However, the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant or have rebutting evidence available to it before it can find that a particular fact asserted by an applicant or applicants has not been made out. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant or applicants claim to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains for an applicant to satisfy the Tribunal that all of the statutory elements are made out.

18. Although the concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law and, as a general proposition, has no application to administrative decision-making, there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim(s).

19. While it is inappropriate for the Tribunal to require particular evidence as a precondition for accepting that an applicant’s claims are true, it is a generally-expressed and recognised principle that it is for an applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts. As Kirby J observed in Dranichnikov v MIMA:[10]

    The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …

20. The total absence of supportive material advanced by the applicant, and the paucity of detail accompanying his initial written claims as outlined in the applicant’s response to the questions identified in the visa application form, means the totality of the evidence in this matter is insufficient and inadequate to enable the Tribunal to reasonably establish the relevant facts.

    Findings of Fact on Relevant Matters

21. The Tribunal has considered all the information in this matter and finds that, when viewed cumulatively, the absence of supporting evidence, and the paucity of the applicant’s written evidence (including the total absence of any oral evidence or corroborating documentary evidence), means the Tribunal cannot reasonably accept any of the applicant’s claims. Therefore, the Tribunal rejects all of the applicant’s protection claims.

22. Because it has rejected all the applicant’s claims, the Tribunal finds the applicant will not suffer any harm for any reason in the foreseeable future should he be returned to Cambodia.

    Refugee Criteria

23. Under s.5J(1) a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA.

24. In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s.5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted.

25. Further, s.5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  However, a person can have a well-founded fear even if the possibility of the persecution occurring is well below 50%.

26. The applicant does not have a genuine fear of being persecuted. Based on the Tribunal’s findings above there is no reason he would have the subjective fear of being harmed in the foreseeable future contemplated in s.5J(1)(a) of the Act. On the basis of the findings of fact above, the Tribunal also finds that the applicant does not have a real chance of suffering any harm, let alone serious harm, in the foreseeable future and does not meet s.5J(1)(b).

27. The applicant does not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he does not meet the meaning of ‘refugee’ set out in s.5H of the Act.

    Complementary Protection Criteria

28. Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.

29. Therefore, for the reasons above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Camboida, there is a real risk the applicant will suffer significant harm.

    Conclusions

30. 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). The second named applicant has been addressed above (in this decision).

31. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

32. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a protection visa.

    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.

    …