2018081 (Refugee)

2018081 (Refugee) [2021] AATA 1518 (24 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2018081
COUNTRY OF REFERENCE:                   Singapore
MEMBER:Catherine Carney-Orsborn
DATE:24 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 March 2021 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – Singapore – provided information to the Australian authorities – fear of revenge by a criminal syndicate – credibility assessment – inconsistent and changing evidence – outstanding warrant issued by Singaporean authorities – law of general application – mental illness – complementary protection – caning – inhuman treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Singapore, first arrived in Australia [in] December 2006.
The applicant applied to the Department of Home Affairs (the Department) for the visa on 22 October 2020. The delegate refused to grant the visa on the basis that the applicant’s claims were not credible, and the delegate was not satisfied that the applicant was of adverse interest to a criminal organisation or that there was an outstanding arrest warrant.
The issues that arise on review are whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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) of the Act. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, an email from the applicant setting out his criminal record in Singapore, a transcript of an interview of the applicant by [State 1] Police, a letter from the applicant’s wife, letter from the applicant’s friend, internal Department emails, a request for removal signed by the applicant, a copy of the applicant’s passport, a copy of the applicant’s Singaporean licence, a located persons interview conducted with the applicant, a decision record relating to the refusal of a bridging visa for the applicant, and the delegate’s decision record. The applicant has provided a copy of the delegate’s decision record to the Tribunal.
The applicant claims in his protection application that he will be prosecuted in Singapore due to his stabbing a man, and that he will be harmed by a criminal syndicate in which he was involved because he gave information to the [State 1] police.
The following information is provided by the applicant in the application for protection forms. The applicant states that he is also known by his Chinese name of [Alias 1]. The applicant was born on [date] in Singapore. The applicant states that he is a Buddhist and lists no ethnicity. The applicant states that he speaks, reads, and writes Mandarin and does not require an interpreter. The applicant married [in] September 2005 and states that he is divorced. The applicant’s father, mother, and [number of] brothers reside in Singapore and the applicant is in contact with his brother twice a week by phone. The applicant lists one address in Singapore since January 2002. The applicant attended [School 1], Singapore from January 1985 until December 1991. The applicant states that he worked in a [specified] shop in 1995. The applicant states that he visited [Country 1], [Country 2], and [Country 3] in 2006 for a holiday.
The applicant states that he was convicted in Singapore of theft and criminal trespassing and cannot remember the dates, rioting in 1996, and of possession of drugs in November 2020. The applicant states that he was convicted in Australia in 2006 for supplying a large commercial quantity of drugs. The applicant states that a charge is pending against him in Singapore in relation to when he assaulted someone and fled to [Country 1] in 2006.
In the application forms, the applicant claims that he assaulted someone who molested his wife in January 2006 and fled to [Country 1]. The applicant claims that he would be charged in Singapore and sentenced to 10 years’ imprisonment and 24 strokes of a cane. The applicant states that, in 1996, he was convicted of rioting and sentenced to [number] years’ imprisonment and 12 strokes of a cane. The applicant claims that he was previously involved with an international criminal syndicate in Singapore and [Country 1]. The applicant claims he was involved in drug smuggling for this organisation, and that he gave information about the syndicate to Australian authorities during his trial in Australia. The applicant claims that his ex-wife cooperated with the Singaporean authorities. The applicant claims to fear that he will be attacked, tortured, and killed if he returns to Singapore.
The applicant states that he gave the Australian police the name of his boss in the criminal syndicate. The applicant claims that the syndicate will torture him and kill him. The applicant states that his ex-wife wrote him a letter and that she cooperated with the Singaporean authorities, and that the court brief notes that the applicant gave his boss’s name to the Australian authorities. The applicant claims that he cannot relocate as Singapore is a small country and it is easy to be found, and that the syndicate is big, and the authorities would be unable to protect him.
The applicant provided to the Tribunal copies of letters he claims his wife wrote to him dated 12 November 2019. He provided a copy of a birthday card he claims his wife sent from Singapore and the envelope addressed to him. The card has “printed in Australia” and “Australian owned company” printed on the back. The envelope has no stamp on it. The writing is similar to the writing on the application for a protection visa which was prepared by the applicant. He provided a copy of a letter and email he claims are from his friend in Singapore. In the letter he is offered financial support. He provided reports stating he suffered from mental health issues and had contact with psychological and Psychiatric Services. A transcript of his police interview and sentencing transcript were also provided.
He provided a Pre-release report from corrective Services which states the sources of information for the report include interviews with the applicant. He provided a copy of the Judge’s sentencing record. In that record it is stated that his record in Singapore is not a significant record. The sentencing comments state that he moved to [Country 1] after assaulting a man in late 2005. He provided a copy of an interview with Australian Border Force.
The report of the Serious Offenders Review Council indicates that its source of information was the applicant.
The applicant claims the above documents show that there is an outstanding warrant in Singapore. In the reports the applicant appears to be the source of the information as the reports indicate that they are providing a historical account given by the applicant of his history of offending and moving to [Country 1].
The hearing
The applicant appeared before the Tribunal on 16 February 2021 to give evidence and present arguments. The Tribunal also took evidence from two friends of the applicant.
The Tribunal explained the purpose of the hearing and explained it was looking at whether the applicant satisfied the criteria for the grant of a protection visa. The Tribunal further explained it would be considering whether the applicant satisfied the criteria for complementary protection.
The applicant provided the following background. He was born in Singapore in [year]. He has [number of] brothers and parents in Singapore. He has a large extended family in Singapore. He claims they were well to do but after his grandfather passed away the [business] his grandfather ran was acquired by the Singaporean government and things became financially difficult for the family.
He fled to [Country 1] in 2006. He claims this is because he stabbed a man and he fled to [Country 1] for a year. He said that every month he gave money to a go between whom he stated was connected with a custom official and he was able to get a stamp on his passport to enable him to stay in [Country 1].
He then obtained a visa to Australia. He claims that his associates helped him get this visa. When queried how he could get a visa to Australia if he had outstanding charges, he claimed he was able to get the visa as the man he stabbed was not dead.
He claims that everything was organised in [Country 1] for his stay in Australia. His friend organised everything. His name was [Mr A] and he was part of a criminal syndicate.
The applicant was caught with prohibited drugs and was sentenced in [city] to three and a half years. In 2009, he was extradited to [State 1] for further charges in relation to a large amount of prohibited drugs.
The Tribunal asked the applicant why he was fearful of returning to Singapore. He stated that he worked for a criminal syndicate. He said the criminal syndicate operated across Singapore [and various countries in Asia].
He said that the Triads are very powerful across all those countries. He said that the syndicate was a few Triads that joined together to form a bigger group. He claims they had connections in Australia.
He stated that in 1996 he was arrested and given the punishment of [number] years in prison in Singapore and 12 lashes.
He claims he is fearful of returning to Singapore as he claims that in 2006, he stabbed a man and there is an outstanding warrant for his arrest.
He claims that if he returns to Singapore, he will have to get 24 lashes.
He claims he is also fearful of returning to Singapore as he gave information to the Australia police about the syndicate. He claims this information was given to the authorities in Singapore and [Mr A] was arrested.
The Tribunal asked for more information. He stated that the warrant is in relation to a man he stabbed in Singapore. The Tribunal asked what the charges are. He responded armed robbery.
The Tribunal queried why he would be charged with armed robbery when his evidence is that he stabbed someone. He responded that he did not know.
The Tribunal asked if he had a copy of the warrant. He responded that he did not. He said he tried to ring a friend in Singapore however his friend who is a lawyer told him that he was unable to get a record of the warrant.
The Tribunal again queried why if there is an outstanding warrant, he has not been able to procure a copy. He said it may have something to do with an identity card.
The Tribunal asked why Singapore had not sought to extradite him from Australia. He had no explanation.
He claims he is at risk due to giving information to the Australian police and authorities about the criminal syndicate.
The Tribunal pointed out that he was saying he provided some information in 2007/2008 but [Mr A] was not arrested until some ten years later. The Tribunal queried whether the information he provided had anything to do with [Mr A]’s arrest. He said words to the effect that [Mr A] committed a crime in [Country 1] and is serving time in a [Country 1] jail. He claims that the Singapore authorities want to get [Mr A] however he is in [Country 1].
He claims that [Mr A] was sentenced to life, but it was reduced to 18 years in prison.
He claims that [Mr A] will be extradited back to Singapore once he finishes his sentence. He said words to the effect that he never speaks to [Mr A], but he thinks he ran away from Singapore.
The Tribunal asked why he would be fearful of [Mr A] if he is in prison in [Country 1].
He responded with words to the effect that he gave information, and everyone knows who he is, he claims it was not only [Mr A]. He claims he gave information about a few of the bosses in [Country 3]. When asked what their names were, he responded that he could not remember but it was [Mr B], [Mr C]. He claims he gave the authorities their addresses which were given to the Singapore CNB.
The Tribunal put to the applicant that if they, criminal elements, were so determined to get him over 15 years later and they are so powerful with contacts all over Australia could they not get him in Australia.
He claims he would keep a low profile in Australia. He claims he would still be in danger due to the information he provided to Singapore CNB.
He claims that when he worked for the syndicate, he was told to register a warehouse in his name, but he did not know it would be used to house drugs and he felt the criminal syndicate misled him. The Tribunal pointed out that he knew he was working for a criminal syndicate. He agreed he knew this.
The Tribunal put to the applicant that the authorities in Singapore know he has served time in Australia. The Tribunal asked again why if the warrant was in relation to him stabbing someone because they molested his wife he was charged with armed robbery.
The applicant responded that he would be caned, and it is inhuman.
The Tribunal asked why he had earlier told Australian authorities that he wanted to return to Singapore.
He responded that he waited until 2020 as he wanted to stay in Mannus correctional centre. He responded that if he claimed protection he would be put in segregation and transferred to another centre. He said he wanted to stay in Mannus as he could earn money there.
He claimed he was very stressed, and he did not want to go into segregation, he said he had been in segregation in 1997 because he was involved in a fight.
The Tribunal pointed out that the applicant has a significant criminal record, he responded that he has done 15 years in prison in Australia. The Tribunal pointed out that there would be other members of the Triads in prison. He said there were, but he did not get involved.
The Tribunal asked again why he had not been harmed in Australia if the criminal syndicate was wanting to harm him. He agreed they could.
The Tribunal then took evidence from a witness.
The witness was a friend of the applicants. His evidence was that he heard from others that the syndicate wants to hurt his friend. The witness said he was previously in prison in Singapore and had been involved with the criminal syndicate. He said he had known the applicant for 20 years. The Tribunal asked why the syndicate could not hurt the applicant in Australia. He responded that he was not sure about that. He stated that the Singapore police want him. The Tribunal asked for more detail about why they want the applicant. He responded that something may have happened in Australia.
The Tribunal asked the applicant if he wanted to comment on the evidence provided by his friend. He said his friend may not have understood the questions. The Tribunal stated that he spoke English and that in Singapore people speak English as they were taught in school.
The applicant agreed and said words to the effect his friend did not seem to know if he was wanted or whether there was a warrant as he was confused.
The Tribunal spoke to his second witness. The second witness said the applicant used to be in a secret society. He said that he thinks the applicant got into some trouble and he fled Singapore. The witness said he (the witness) has a criminal record and had previously been to prison in Singapore however he was no longer involved. The Tribunal asked what it was he wanted to tell the Tribunal. He responded that from what the applicant told him he was in trouble some 15 years back with the drug syndicate however he said that he could not confirm this.
He said he did not know what the applicant did, his evidence is that he heard from other people that the syndicate want to get him.
The Tribunal asked if the applicant wanted to say anything further about his friends’ evidence, he stated that his life is in danger and if he returns to Singapore, he will face ten years and lashes. He claims that this is inhuman. He said they call him a nick name, and everyone knows he was arrested in Australia.
After the hearing the Tribunal issued a s424A letter to the applicant to give him further time to comment on the inconsistencies in his evidence which had been discussed at hearing.

The Tribunal pointed out that in an interview with Australian Border Force official in July 2020 he stated that there were no outstanding court matters in Australia or overseas. In his risk profile assessment, it was stated that there were no outstanding warrants and no existing criminal justice impediments to his removal. At those interviews he indicated he wanted to depart Australia voluntarily. This contrasts with his claims in his protection application and as discussed at hearing that there is an outstanding warrant and he will be sentenced to prison and caning if returned to Singapore.
In response he claimed that at his interview with Serious Offenders Review council the chairperson found out that there was a warrant that had been issued in August 2020 for armed robbery. He further stated that he committed a crime and assaulted a man who molested his ex-wife. In that same response he claimed that a lawyer friend of his informed him that he is yet to be charged and there is no warrant. In relation to the Tribunals concerns that he changed his evidence in relation to what the charge was, from assaulting, to stabbing a man, to armed robbery, he responded that the man he assaulted may have reported he robbed him. He then went on to state that his godfather contacted police and was informed he will receive 10 years imprisonment and 24 strokes of the cane.
In response to his inconsistent evidence in relation to any arrest warrants. He responded that he was guilty of lying to the Australian Border Force as he was emotional and is heavily traumatized by the word segregation. He then described being segregated in prison in Singapore and that it had left him with diminished ability to cope.
The applicant then outlined evidence he had earlier provided to the Tribunal. He quoted sections of his interview with Serious Offenders Review Council. The applicant claimed among other things that he had indicated he wanted to depart Australia voluntarily as he was scared if he did not sign, he would be put in a maximum-security prison. He claims this would cause anxiety as he is traumatized by his earlier imprisonment in Singapore and how he was treated.
The Tribunal asked the applicant to provide information in relation to his claim at hearing that he suffered from stress. He provided the same information which was previously provided to the Tribunal which indicated that while in prison he received treatment for OCD, anxiety and depression. The applicant responded that the Council mentioned his outstanding charges in their report in 2013 and the Judge’s Sentencing Report in 2011. In both those documents it is stated that there was a warrant after he assaulted a man in Late 2005. It appears that the applicant was the source of that information. That information differs to later information he provided. In later information he states that the assault happened in January 2006 and he stabbed the man. He further changed his evidence to state that the warrant was for armed robbery. When queried why it changed from assault to armed robbery he responded with an unconvincing and confusing response that it may be because the man accused him of armed robbery. He claims it was due to this trauma that he lied to Australian Border Force about having no outstanding criminal matters in Singapore. He claimed he is traumatised by the word segregation. There was not information as to why he felt he would be put in segregation due to having outstanding criminal matters in Singapore. He claims he was informed that he would be locked in segregation and transferred to maximum security prison due to further charges. There is nothing to indicate that this happened or why this was said to him. None of the reports he provided indicate he was in maximum security or segregation; they state he was in low/medium risk category.
He asserts that his offence was published in Singapore News and that the syndicate knew when he will be released. He claims that he will be harmed or killed by syndicate inmates in prison or gangsters in public and Singapore authorities cannot protect him.
The applicant provided a copy of a report, previously provided, dated August 2020 of the Serious Offenders Review council. The report stated that the applicant had been interviewed and repeated information the applicant gave to the Council. The report stated amongst other things that the applicant is off his medication as he is now recovered from OCD and depression. He advised the council that he self-refers to psychology services when required. The report noted he had the support of his family in Singapore and does not oppose his removal to Singapore.
The applicant provided a copy from a mental health professional dated November 2020. In that report it stated that Obsessive compulsive disorder which emerged in prison has now largely resolved. He has mild stress and anxiety and the risk to self is low. He did not want to restart treatment of OCD as it is much improved and will access mental health support if required. The above documents had already been provided to the Tribunal prior to the hearing, no new issues were raised.
Nationality
The applicant claims to be a citizen of Singapore. He has a passport issued by Singapore. He claims he was born in Singapore. The Tribunal has assessed his claims against Singapore as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves 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. If the Tribunal 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. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:
The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.
Ultimately, after considering all the evidence, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached this conclusion are set out in detail below.
The applicant’s evidence was vague, improbable, inconsistent and unsupported by the available country information. When discrepancies were put to him in relation to his claims, he changed his evidence and the facts he was claiming. After the hearing the Tribunal provided the applicant an opportunity to provide further evidence, information and submissions on the issues discussed at hearing. The applicant provided copies of the same selected portions of documents already before the Tribunal as outlined above.
He claims that he cannot return to Singapore as he is wanted by a criminal syndicate as he provided information to the Australian authorities sometime in 2010, who shared it with Singaporean authorities. The applicant provided a few selected pages from a police interview, the information in those pages relates to him naming the go-between who arranged his trip to Australia. No other persons were named and in that selected extract there was a general reference to a night club where he claimed bosses would go to meet.
The Tribunal accepts that he co-operated with authorities to some extent when he was arrested and charged in Australia with drug offences. He claims that the go between who organised his trip to Australia was arrested in [Country 1] and is currently in jail. It was put to him that it is unlikely any information he provided led to the arrest as the information was provided ten years before the man was jailed in [Country 1]. In response he stated words to the effect that he also gave information about the Bosses he met in [Country 3]. When asked who those Bosses were, he responded he could not remember and then said [Mr B], [Mr C], he further claims he gave addresses.
The applicant stated that it was a powerful criminal syndicate in which several Triads had joined together. He agreed they had a reach all over Asia and Australia. He further agreed that there were some Triad members in prison. When the Tribunal put to him that if they were so determined to harm him, they could easily have harmed him in Australia, he agreed that they could have. When it was put to him, he had not been harmed and the information he claims he provided was given some 11 years ago he responded he kept a low profile. The Tribunal does not consider he kept a low profile in prison, as in the parole reports he provided dated August 2020 it states he has had positive involvement with Chinese inmates and he claimed to the parole board he wants to stay in [Town 1] and be peer support to members of the Chinese community.
The person the applicant claims he gave information on has been sentenced in [Country 1] some ten years after he gave some information. The Tribunal does not accept that the information he provided to Australia and Singaporean authorities led to the arrest some ten years later of the individual he identified as [Mr A] in [Country 1].
The applicant claimed to the Tribunal that he gave the names of Bosses and addresses when asked for the names he at first said he forgot and then said [Mr B] and [Mr C]. The Tribunal considers that if a powerful criminal syndicate was determined to harm the applicant, they could have caused harm while he was in Australia. The applicant has not been harmed and the Tribunal does not accept that he provided information which has put him in danger of being harmed by criminal syndicates and their “Bosses” that operate all over Asia and Australia.
The applicant claims that his ex-wife provided information to the authorities in Singapore and co-operated with the police. The applicant provided a handwritten letter he claims was from his ex-wife. In that handwritten letter she claims she provided information to the police in Singapore. The information provided from the applicant is that his wife is living in Singapore. She claims in her letter that she was detained for a short while when she re-entered Singapore. The Tribunal would expect that if a powerful criminal syndicate were determined to extract revenge on the applicant then his ex-wife would also have been in danger. There is no information before the Tribunal which indicates she has been in any danger or suffered from any threats or violence from any criminal syndicate or the authorities in Singapore. In a submission to the Tribunal he claimed that his wife lied to him as she was with his friend. The Tribunal does not find that the wife’s letter is of any probative weight.
The applicant claims he cannot return to Singapore as he faces charges and a warrant has been issued by the authorities in Singapore for his arrest. His evidence about what charge was vague and unconvincing. The applicant claims he fled Singapore as he stabbed a drug dealer who molested his ex-wife. When asked what the charges were, he responded that it was for armed robbery. When asked for an explanation as to why he would be charged with armed robbery if he claims that he stabbed another man he responded that he did not know.
The applicant when asked why he had earlier told authorities in Australia he wanted to return to Singapore he responded it was because he wanted to stay in Manus correctional centre and not be put in segregation. The Tribunal does not accept this as a persuasive reason as to why he had not mentioned any concerns about an outstanding warrant. The applicant at interview with the delegate claimed he had been told about the arrest warrant in Singapore in August 2020 by an individual from the [State 1] Serious Offenders Review Council.
The Tribunal sent a letter to the applicant after the hearing to provide him further time to comment on the inconsistencies in his evidence in relation to an outstanding warrant. He responded with further inconsistencies in which he stated there was a warrant, he then stated that a lawyer friend told him there was no warrant or charges yet. In relation to discrepancies with what he discussed with parole and other authorities when he told them at first there was no warrants or criminal justice matters, he stated that he lied to them as he feared segregation. He claims that the chairperson of Serious Offenders Review Council told him there was an outstanding warrant. The select pages the applicant had previously provided to the Tribunal did mention a warrant however it is the view of the Tribunal that this information was provided in interview by the applicant to the authors of the reports provided by the Council.
The applicant had two witnesses give evidence. They are friends of the applicant and repeated that they had been told that he was in danger from the Triads. They were not sure of the offences, where they occurred or any other details. The applicant when commenting on their evidence agreed it was vague and they may not have understood the question. The Tribunal rejects that they did not understand the evidence as they both spoke English fluently. The Tribunal accepts that the applicant’s friends wanted to help and assist him, but their evidence alone adds little to the overall evidence presented.
The applicant was unable to provide any copy of the warrant. When queried he said he tried to get a copy but his friend who was a lawyer in Singapore could not help him. The Tribunal provided further time to the applicant for him to provide information on the warrant he again gave inconsistent responses, he stated there was a warrant and then in the same statement he stated that his lawyer friend told him there was no warrant as he had not been charged. When queried how he could have secured a visa to leave Singapore and [Country 1] to come to Australia he responded that he could because the man he stabbed did not die. He later said it was organised by his criminal connections in [Country 1].
The Tribunal notes that there are references to an outstanding warrant in the evidence provided by the applicant. The references in sentencing documents and parole documents appear to be general references from information the applicant provided to those authorities. There is no independent probative evidence to indicate that Singaporean authorities are pursuing any charges or warrant.
The applicant did not provide the Tribunal any copy of a warrant. The Tribunal has outlined above the inconsistent evidence provided in relation to whether there is an outstanding warrant. The applicant in his application for protection states he speaks to his brother in Singapore twice a week. However, when queried about providing a copy of the warrant at hearing he gave an unconvincing response that his lawyer could not get a copy, and then in later submissions that there was no warrant as he was not been charged.
The applicant claims he fled Singapore as he was wanted for assaulting a man. The Tribunal noted that in his application for protection he stated he was able to travel to [Country 2], [Country 3] and [Country 1] in 2006. When queried how he was able to leave Singapore if there was an outstanding warrant, he simply replied his friend in [Country 1] helped him. The Tribunal is not satisfied that if there was an outstanding warrant or he was wanted by authorities in Singapore he would have been able to travel extensively throughout 2006.
If the applicant was to return to Singapore and face charges those charges relate to criminal acts the applicant has participated in. He agreed that it was a law of general application and all persons who committed those crimes would face the same penalties and face the justice system in Singapore.
There is nothing to indicate he was singled out for any characteristic of his or discriminated against.
The Tribunal has considered all the information and evidence provided by the applicant and is not satisfied that there is an outstanding warrant or that criminal elements connected to Triads and criminal syndicates are threatening the applicant with death or any serious harm.
The applicant has been convicted and served a substantial sentence in Australia in relation to drug supply and importation. The Tribunal notes that Singapore prohibits double jeopardy in their Constitution. There is a further protection under the Singapore Criminal Procedure Code. The Tribunal is satisfied that the applicant will not face being convicted in Singapore of a crime committed in Australia for which he has been sentenced and served time in prison.
Mental Illness
The applicant provided information from prison reports which indicate while in prison he was diagnosed with OCD, anxiety and depression. At hearing he stated he was stressed. The Tribunal allowed further time for the applicant to provide information in relation to his mental health. The report he provided dated November 2020 indicated that his symptoms had subsided, and he no longer needed medication. It noted his symptoms had resolved and he was able to contact services when needed.
Independent information indicates that Singapore has a universal health system that is considered one of the best in the world. Independent information further indicates that mental health services are available.
22 Dec 2020 — In Singapore, there is a comprehensive network of mental health services - from helplines and Voluntary Welfare Organisations (VWOs) offering counselling services, to clinics at government hospitals and in private practice.

98. The Tribunal is satisfied that if the applicant develops or has a relapse of his mental health, he will be able to access treatment and medication of a high quality in Singapore.
101. The Tribunal does not accept that there is a real chance that the applicant would suffer serious harm or significant harm at the hands of the Triads if he were to return to Singapore.
102. The Tribunal accepts the country information that Singapore is a functioning democracy and has safeguards in place to protect its citizens. The Tribunal finds that the protection available is durable and, in the case of protection by Singapore, the protection consists of an appropriate criminal law, an effective police force and an impartial judicial system.
The “World Justice Project” ranked Singapore 12^th of 128 countries on Rule of Law. This placed Singapore 3^rd in its region, following Australia and New Zealand. [1]
[1]

103. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Singapore for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returns to Singapore now or in the reasonably foreseeable future.

Complementary protection
104. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
105. A person meets the complementary protection criteria if there are 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.
106. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
107. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
108. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal accepts that the applicant has an extensive criminal record in Singapore and Australia. He claims that he has been rehabilitated and wants to now be a contributing member of society.
109. The applicant claimed that he risks being caned if returned to Singapore. He claims that this punishment is inhuman treatment. The Tribunal accepts that caning could be seen as cruel or inhuman treatment or punishment, information provided indicates that when it is carried out in Singapore it is done under medical supervision and medical treatment and pain relief is swiftly provided.
110. However, the Tribunal after considering all the evidence before it, as outlined above, does not accept, due to the inconsistent and lack of credible evidence, that there is an outstanding warrant in Singapore relating to the applicant which would result in the applicant being caned.
111. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Singapore, there is a real risk he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).
CONCLUSION
112. 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). 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).
113. 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 criterion in s.36(2).
DECISION
114. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
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.
…

[2021] AATA 1518

24 March 2021

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Immigration

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Procedural Fairness

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