1716544 (Refugee)

1716544 (Refugee) [2023] AATA 2367 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Yevgen Kyselov (MARN: 9803836)
CASE NUMBER:  1716544
COUNTRY OF REFERENCE:                   Kyrgyzstan
MEMBER:Mara Moustafine
DATE:5 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 May 2023 at 8:53am
CATCHWORDS
REFUGEE – protection visa – Kyrgyzstan – political opinion – opponent of corruption in work sector – assaulted, threatened and tried on false charges – fear of harm from public official – credibility – incorrect information and false documents given in temporary visa application – delay in applying for protection – applied a few days before temporary visa due to expire – inconsistent claims and evidence – previous travel to other countries without applying for protection there – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The first named applicant (the applicant) is a citizen of Kyrgyzstan and is [Age] years old. The second named applicant is his wife, aged [Age] years, also a citizen of Kyrgyzstan. They arrived in Australia together [in] May 2015 on temporary [Working] visas valid until [date] August 2015, claiming to be part of [an industry group]. It was claimed that the applicant was [an Occupation 1] and his wife was [an Occupation 2].
The applicants applied for Protection visas on 18 August 2015 and were granted associated Bridging visas. The applicant’s wife has not put forward her own claims for protection but seeks to rely on the claims of her husband.
Evidence before the Department
Protection visa application
According to his Protection visa application form, the applicant was born on [Date] in [Village 1], Talas Region, Kyrgyzstan. He lived in [Village 1] up until [Year] at which time he moved to Bishkek where he lived up until the time he arrived in Australia. He identified his ethnicity as Kyrgyz. The applicant speaks, reads and writes Kyrgyz and Russian. He still has military service obligations in Kyrgyzstan. He attended 10 years of school in Talas between [Year] and [Year], then [Institution 1] in Bishkek from [Year] to [Year]. He then worked for [Employer 1] as [an Occupation 3] from [Year] to March 2015. The applicant travelled to [Country 1] and [Country 2] for business in 2013 and 2014 respectively and he travelled to [Country 3] in 2013 as a tourist. The applicant married his current wife, the second named applicant on [Date] in Bishkek. He has a son living in Bishkek, as well as his parents, [sisters] and a brother.
According to her Protection visa application form, the second named applicant, the applicant’s wife was born on [Date] in Talas, Kyrgyzstan. She identified her ethnicity as Kyrgyz. She speaks, reads and writes Kyrgyz, Russian, English and [Language]. She attended 10 years of school in Bishkek between [Year] and [Year], then university in Bishkek from 2006 to 2013. She qualified as [an Occupation 4] in 2011 and worked as [an Occupation 5] before coming to Australia. She declared she has never travelled outside of Kyrgyzstan.
The applicants departed Kyrgyzstan legally from Bishkek [in] May 2015 on their own passports (copies of the biodata pages were submitted with their application).
The applicant’s protection claims, as set out in his application form were as follows:
a.He left Kyrgyzstan because he was mistreated for reason of his political opinion. He worked in [Work sector 1] and rose to [level]. He tried to fight the corrupt [Work sector 1] in his country but it resulted in physical assaults, unlawful imprisonment and threats.
b.He experienced harm in Kyrgyzstan. His colleagues assaulted him on numerous occasions, wrongly detained him and threatened him with imprisonment or ‘accident’. His life was under a threat, as was his wife's life.
c.When he was taking up the fight he thought he would find people who would support him to change the country for the sake of their children. So he tried to get support but was betrayed and had no other way to avoid being killed but to escape.
d.He actually reported it to the [Public official Mr A]] and thought that being a new [Official 1] (he had only been working as such for a little more than a year) he would be interested in changing [Employer 1]. It did not work out. His mistreatment intensified and he was in immediate danger just before he left.
e.He had to divorce his wife in an attempt to save her and their son but his persecutors saw through this and he had to leave to save both of them. Their son is with distant relatives in very remote mountainous area. They were scared to take him with them as they were not sure that they would be able to leave the country.
f.Kyrgyzstan has the same political and law enforcement system as when they left, nothing has changed, nothing will change. He was too inconvenient for the corrupt system and it will kill him eventually. He expects that, should he go back, all his mistreatment will happen again and this time it will be worse because he visited a foreign democratic country and they would suspect that he talked about what happened to him in Kyrgyzstan. Unless there is new President and new and radical reforms – his life will be in danger.
g.He did not try to relocate and does not think he would be able to relocate in Kyrgyzstan to seek safety as the residential registration system ensures that the government and police always know where a person is living. He does not think the authorities can and will protect him if he goes back as they mistreated him and he was fighting against them.
h.He asked someone to help him to escape, to get visas, to cross the border at the airport. They paid 12 thousand dollars for visas and border passes and it worked. They regret having to resort to paying a bribe but they were trying to save their lives.
Documents submitted in support of their application included copies of the biodata pages of their passports.
Department interview
The applicants attended an interview with the Department on 2 June 2017. They provided translated copies of their birth certificates, a marriage certificate recording [Date] as the date of marriage, a divorce certificate recording [Date] as the date of divorce, their graduation certificates, employment record books and a birth certificate for the applicant’s son ‘[Master A]’, born on [Date], which identified a person other than the second named applicant as the mother.
Key relevant points from the applicant’s evidence, as summarised in the Department’s decision record were:
a.In [Employer 1], he was [an Occupation 6] who worked as a [Job role] and not in an operational role. It was not his responsibility to [do a Job task].
b.On one occasion he was [with a detained person] to a [vehicle] when he was [arrested] by a Secret Service operative. At the time of his arrest, he had a jacket in the back of the [vehicle], which an investigator seized and claimed he found an amount of 7,000 Kyrgyzstan (KGS) inside the wadding.
c.He was not imprisoned but received isolation for a temporary detainment. The court did not require a custodial sentence, because there was no direct evidence.
d.The result of the trial was that corruption charges could not be proven. He was convicted instead under Article 162 of the Criminal Code (Parents Evading Child Maintenance) and received a one year suspended sentence. While awaiting the outcome he continued living at home. These events occurred between 2009 and 2011 and marked the end of his [Employer 1] career.
e.Following the outcome of his court case, he had no money and nowhere to live. He borrowed money from a friend in his hometown of Talas and went to [Country 1]. He had no issues in being granted Schengen State visas. He imported and sold [Products] to friends in [Country 4].
f.It was ‘quite expensive’ to acquire the documents submitted in support of his visa application for Australia: his sisters took all their jewellery to the pawn broker. Including the tickets, it cost USD 20,000 for both applicants. The person told him he could have any country he wanted and he opted for the US or Australia.
g.He confirmed that his profile as [an Occupation 1] was bogus: ‘I was just [an Occupation 3]’. His wife said she was not [an Occupation 2] but worked [as an Occupation 7].
h.Although he had multiple opportunities to claim protection from any number of UN Refugees Convention Signatory States since 2011, he did not do so because he feared he might be detained there very easily.
i.He fears that if he returns to Kyrgyzstan, [Mr A], the [Official 1] will order his arrest because [Mr A] ‘just does not like me’. Previously, when he was working, there were some [cases] that [Mr A] had given personal directions not to investigate any further.
j.If he returns to Kyrgyzstan, he fears he will be detained again and framed with some crime. They already know he is in Australia and could allege that he has disclosed state secrets.
Department decision
On 18 July 2017, the delegate refused to grant the applicants protection visas as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
The delegate did not accept that the applicant would be targeted for harm for reasons of his political opinion should he return to Kyrgyzstan. Noting significant disparities in the documentation provided by the applicants to the Department in the context of their [Temporary] and Protection visa applications, as well as the high level of document fraud in Kyrgyzstan indicated in Country information, she did not give weight to this evidence. She also expressed concern about the delay in lodging his Protection visa application until a few days before his Work visa was due to expire and queried why he would not have sought protection in European countries to which he travelled before coming to Australia.
Application for Review
On 30 July 2017, the applicants applied to the Tribunal for a review of the Department’s decision, a copy of which they provided for the purpose of the review.
On 30 March 2023, the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case on 18 April 2023. The applicants were represented in relation to the review.
Pre-hearing Submissions
On 13 April 2023 the applicant’s newly appointed migration agent provided to the Tribunal the following documents in support of his claims: evidence of applicant's qualification – a translated degree certificate as [an Occupation 6] dated [Date] from [Institution 1]; photos of the applicant at his workplace in uniform; and information on corruption in Kyrgyzstan from Transparency International dated 9 January 2013.
The Hearing
The applicants appeared before the Tribunal on 20 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
At the start of the hearing the applicant confirmed that all evidence he had submitted to the Department and Tribunal was true and correct and that he did not wish to make any changes.
The Tribunal discussed with the applicants their migration history, the background to their claims, why they fear returning to Kyrgyzstan and key issues arising in relation to the decision under review. Where relevant to their protection claims, the applicants’ evidence to the Tribunal is referred to below.
Post-Hearing Submission
Key points in a submission provided to the Tribunal by the applicants’ representative on 27 April 2023 were as follows:
a.The applicants were not involved in preparation of their application for a subclass 400 visas on which they arrived in Australia. These applications were prepared and submitted by some agency in Kyrgyzstan who the applicants paid for assistance.
b.The applicants were ‘absolutely unaware’ about any information and documents provided with their applications for the subclass 400 visas. Their goal was to leave Kyrgyzstan by any means to escape persecutions they faced in Kyrgyzstan.
c.The second named applicant never applied for entry to or travelled to any European Union (EU) country. They are sure that EU visas and entry/exit stamps along with the Sheremetyevo airport stamps in her passport are not genuine.
d.The applicant has no access to the original documents submitted to the Tribunal in support of his claims relating to his qualification and work in [Employer 1]. However he provided to the Tribunal good knowledge and a clear account of the [Employer 1] system in Kyrgyzstan which indicates that he in fact used to work as [an Occupation 3].
e.The applicant mistakenly mentioned the position of [Mr A] as [an Official 1]. He insists this happened because he forgot what was the position of [Mr A] at that time. The applicant insists that [Mr A] is still in power in Kyrgyzstan despite having no position in the Kyrgyzstan authorities because Kyrgyzstan’s current political system allows criminals to influence authorities.
f.Both applicants implore the Tribunal to give them the benefit of the doubt because they have no real documents to prove they told the truth to the Department and to the Tribunal.
g.They both believe their safety will be in danger should they return to Kyrgyzstan.
CRITERIA FOR A PROTECTION VISA
Relevant Law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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).
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.
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
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.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
Country of reference
On the basis of the applicants’ Kyrgyzstan passports, provided to the Department, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicants are nationals of Kyrgyzstan and considers Kyrgyzstan is the country of nationality and the receiving country for the purpose of assessing their claims against the refugee and complementary protection criteria respectively.
The applicant’s claims
Essentially the applicant claims to fear harm in Kyrgyzstan for reasons of his political opinion because he tried to expose corruption while working [with Employer 1]. He claimed variously that, as a result, he was assaulted, threatened, detained and framed on false charges. He fears that if he returns to Kyrgyzstan he will be arrested, imprisoned or killed.
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to his vague, inconsistent and unsubstantiated evidence on key aspects of his claims and other reasons detailed below.
The applicant’s experiences of harm in Kyrgyzstan and why he fears harm on return there

The applicant gave inconsistent evidence regarding the harm he experienced in Kyrgyzstan between his protection visa application, Department interview and Tribunal hearing.
In his initial application to the Department, the applicant made vague assertions that while working as a [Occupation 3] he ‘tried to fight the corrupt [Work Sector 1]’ in Kyrgyzstan as a result of which ‘his colleagues assaulted him on numerous occasions, wrongly detained him and threatened him with imprisonment or ‘accident’. At his Department interview and Tribunal hearing the applicant claimed that, while dealing with a [detained person] in March 2009, he was himself arrested and charged with misuse of power or corruption when money (7,000 KGS) was found inside his jacket. As a result he was detained for 48 hours, charged and tried and received a one year suspended sentence. He told the Department that, as the corruption charges could not be proven, he was convicted under Article 162 of the Criminal Code (Parents Evading Child Maintenance) and that the events occurred between 2009 and 2011 and marked the end of his [Employer 1] career. By contrast the applicant told the Tribunal that the charge against him was changed to ‘extortion’ and that his court process continued until 2014 because he unsuccessfully appealed to the Supreme Court.
Asked at his hearing whether there were any other instances when he experienced harm in Kyrgyzstan, the applicant said he was also detained for 48 hours and given a one year suspended sentence for an alleged altercation with traffic police who stopped his [vehicle] some time in 2014.
In the course of his protection visa process the applicant significantly embellished his evidence as to what he feared might happen to him on return to Kyrgyzstan, introducing new evidence regarding the role in his fate of the former [Official 1], [Mr A].
In his initial application he claimed that, as nothing had changed in Kyrgyzstan, he would suffer the same mistreatment but worse as he had visited a foreign democratic country and would be suspected of talking about what happened to him in Kyrgyzstan previously. At his Department interview, he spoke of his fear of being detained again and framed with some crime, including that he had disclosed state secrets in Australia. He also introduced new evidence that he feared that the [Official 1], [Mr A], would order his arrest because [Mr A] did not like him and had given personal directions for him not to [investigate some cases].
At his Tribunal hearing the applicant went further with regard to [Mr A], claiming that he was responsible for the applicant being framed with extortion charges. The applicant said [Mr A] had threatened on several occasions to destroy him unless he left [Employer 1]. The applicant could not remember exactly when this was but thought it was in 2007 or 2008 and recounted an incident when he refused to [comply with Mr A’s instructions]. He claimed that at the time [Mr A] was head of [Department] of the city of Bishkek. The applicant claimed that there were many such instances linked to [Mr A] during the time he worked in [Employer 1] and he always refused [Mr A]’s illegal orders. He also claimed that, after he was arrested on 2 March 2009, he was taken to see [Mr A], who told the applicant that he had been ‘warned’ and his problem was of his own making. At the time he also got a lot of messages from his former fellow students at [Institution 1] warning that if he did not get out of detention he would be in ‘big trouble’.
As for what he feared might happen to him on return to Kyrgyzstan now, the applicant said that, if [Mr A] was unable to put him in jail, he could finish him off as he was on good terms with the current Kyrgyz criminal boss, [Mr B]. As discussed with the applicant, the Tribunal does not find it plausible that if an allegedly powerful man like [Mr A] wanted to get rid of him, he would not have done so while the applicant was still in Kyrgyzstan. The Tribunal also finds it dubious, that if [Mr A] did not eliminate the applicant then, he would seek to do so now, especially in light of the applicant’s evidence to the Tribunal that [Mr A] was no longer working [as Official 1] but had a new [career].
The applicant accepted that [Mr A] would not be monitoring the airport to target him on his return to Bishkek but said that, even if he was no longer [Official 1], he was still ‘doing a lot of bad things.’ Further, in his post-hearing submission the representative stated that the applicant insisted ‘that [Mr A] is still in power in Kyrgyzstan despite having no position in the Kyrgyzstan authorities because Kyrgyzstan’s current political system allows criminals to influence authorities’. As put to the applicant at the hearing, the Tribunal does not question that there is a lot of corruption in Kyrgyzstan, as attested by country information sources, including Transparency International. However the only issue before the Tribunal is whether the applicant would be at risk of serious or significant harm if he returned to Kyrgyzstan now or in the reasonably foreseeable future.
As discussed with the applicant, the Tribunal has serious concerns about the veracity of his evidence regarding [Mr A]. It notes that, in his original application, the applicant said he actually reported the mistreatments he suffered from colleagues (numerous assaults, wrongful detention and threats of imprisonment or ‘accident’) to the [Official 1, Mr A]. He elaborated that he ‘thought that being a new [Official 1] (he had only been working as such for a little more than a year) he would be interested in changing [Employer 1]’ (paragraph 7.d) The fact is, as noted in the Department decision, [Mr A] only became [Official 1] in October 2014 and was dismissed in 2016. By his own evidence at hearing, the applicant stopped working for [Employer 1] in 2009.
The Tribunal has had regard to the representative’s submission that ‘the applicant mistakenly mentioned the position of [Mr A] as [an Official 1]’ because ‘he forgot what was the position of [Mr A] at that time’. The Tribunal also notes the new claims introduced by the applicant at the hearing that [Mr A] threatened him in 2007 or [2008] and his evidence about [Mr A]’s other threats against him. The Tribunal finds it dubious that if [Mr A] had behaved in this way towards him, the applicant would have reported his problems to [Mr A] as a possible ally in his fight to change the culture in [Employer 1], as he claimed in his original application.
Given the multiple concerns outlined above, the Tribunal is not satisfied that the applicant has been truthful about his experiences of harm in Kyrgyzstan or the reasons he fears harm on return.
False documents and inconsistencies in applications
The Tribunal is concerned about inconsistencies in the evidence the applicants provided in their Work visa applications to enter Australia and in the context of their Protection visa application, as elaborated in the Department decision. The applicants told the Department and the Tribunal that they paid money to have their original visas to Australia arranged and that the documents provided by the people who helped them were false. At hearing the applicants claimed not know to know what class of visas they arrived on: the applicant thought it was a three month Tourist visa, while his wife said they were told the documents prepared stated that they were coming to [work]. As discussed with the applicants, given that, by their own evidence, they had provided false documents to secure entry into Australia and the prevalence of document fraud in Kyrgyzstan, the Tribunal cannot attach weight to any documentary evidence they have provided in the context of their Protection visa application, including the applicant’s degree certificate from [Institution 1] provided to the Tribunal ahead of the hearing.
The Tribunal’s concerns are not assuaged by the representative’s post-hearing submission that the applicants ‘were not involved in preparation of their application’ for the [Work] visas on which they entered Australia and were ‘absolutely unaware’ about any information and documents provided with them as ‘their goal was to leave Kyrgyzstan by any means’ to escape the persecutions they faced there. The Tribunal notes that each of the applicants declared ‘Yes’ in their visa application forms that they had ‘read and understood the information provided to them in this application’ and had ‘provided complete and correct information in every detail on this form, and on any attachments to it’. As discussed at hearing, in light of their readiness to provide false evidence to obtain a temporary Australian visa in order to leave Kyrgyzstan ‘by any means’, the Tribunal cannot be satisfied that they would not be prepared to provide false evidence to secure a permanent Protection visa in order to stay in Australia. This raises doubts about the general credibility of their evidence.
The applicant provided to the Tribunal a copy of a degree certificate and several photographs of himself dressed in uniform at various ages. As noted above, the Tribunal cannot attach weight to any documents he submitted. Moreover, the photos are not conclusive proof of anything more than the fact that he was photographed in uniform.
The Tribunal also notes that, although the applicant indicated in his Protection visa application form that he had one son, whom he identified as ‘[Master A]’, as noted in the Department decision, the birth certificate submitted for this child, born on [Date] identified as his mother a person other than the second named application. When asked at hearing what family he had in Kyrgyzstan, the applicant initially mentioned only his parents and siblings. When asked if there was any other family in Kyrgyzstan, he said he also had an ex-wife, from whom he was divorced, and a son born in 2005 from this first marriage. Only after the second named applicant gave evidence that the couple had a child in common did the applicant say he had misunderstood the question and that he thought the Tribunal was asking about ‘that family’. At the end of the hearing the applicant claimed that he had two sons – the first born in [Year] and the second in [Year].
The Tribunal notes that there were other inconsistencies between the applicant’s Protection visa application and his evidence at hearing. According to his application form, the applicant lived in Bishkek from [Year] until May 2015 and that he was employed by [Employer 1] from [Year] to 2015. However, he told the Tribunal that between 2010 and 2013 he lived mostly in [Village 1], stopped working for [Employer 1] in 2009 and then earned money bringing [Products] in from [Country 1] and other places, none of which he mentioned in his application form.
Timing of his Protection visa application
The applicant told the Tribunal that he and his wife arrived in Australia [in] May 2015 with the intention of applying for a Protection visa, which they had learned about from the people in Kyrgyzstan whom they had paid to arrange their visas. However, they did not apply for the Protection visa until 18 August 2015, a few days before their three month work visas expired. In discussions at the hearing the applicant told the Tribunal that on arrival in Sydney, they rented a room in [Suburb], then looked for work, as well as for people to help them with their Protection visa application.
As discussed with the applicants, in the Tribunal’s experience, people in genuine fear for their lives usually made it a priority to seek protection at the earliest opportunity, while those who applied for a Protection visa at the last minute often did so because they came for some other purpose and then decided they wanted to stay in Australia. The Tribunal finds unpersuasive the applicant’s explanation that the delay was because he and his wife were both under stress when they arrived and their English was ‘non-existent’. According to his wife’s evidence, English was one of the languages she studied at university in Bishkek. She also told the Tribunal that they had both found work in Sydney by June or July 2015, she as [an Occupation 7] and the applicant in a [Workplace]. As discussed with the applicants, their delay in lodging their Protection visa application until a few days before their three month work visas expired raises doubts that they were genuinely in fear of harm in Kyrgyzstan.
Summary Findings
Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Kyrgyzstan and the reason he fears harm there or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant worked in [Work sector 1] in Kyrgyzstan or tried to expose corruption there, nor that he was assaulted, threatened, detained and framed on false charges, nor that his or his wife’s life was under threat as a result. It follows that the Tribunal is not satisfied that, if he returns to Kyrgyzstan, the applicant will be arrested, imprisoned, framed with some crime or killed or that his life or that of his wife will be in danger. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a protection visa in order to remain in Australia.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Kyrgyzstan the applicant will suffer serious harm amounting to persecution for reasons of his political opinion or for any other reason set out in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should he return to Kyrgyzstan now or in the reasonably foreseeable future. Nor does the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kyrgyzstan, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
Given that the claims of the second named applicant are solely reliant on the applicant’s claims, which the Tribunal has not accepted, it follows that the Tribunal does not accept that there is a real chance that the second named applicant has a well-founded fear of persecution should she return to Kyrgyzstan now or in the reasonably foreseeable future. Nor does the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kyrgyzstan, there is a real risk that she would suffer significant harm.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mara Moustafine
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.
…

[2023] AATA 2367

5 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction