2101380 (Refugee)

2101380 (Refugee) [2024] AATA 4358 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2101380

COUNTRY OF REFERENCE: Japan
MEMBER:Rachel Da Costa
DATE:26 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2024 at 9:12am
CATCHWORDS
REFUGEE – protection visa – Japan – fear of criminal gang – complaint against investigation into Yakuza – physical assault – kidnapping – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, 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 Home Affairs on 25 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Japan, applied for the visa on 26 April 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 8 February 2021, the applicant lodged an application for review of the delegate’s decision with the Tribunal. She provided the Tribunal with a copy of the delegate’s decision.
On 1 August 2024, the Tribunal sent a hearing invitation to the applicant which explained that having considered the material before it, the Tribunal was unable to make a favourable decision on that information alone and invited the applicant to attend a hearing on 20 August 2024 to give evidence and present arguments relating to the issues arising in her case.
On 19 August 2024, the applicant returned a completed Response to Hearing Information form to the Tribunal and in that form she indicated that she would not participate in the hearing and she consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. In light of the applicant’s response, the Tribunal has proceeded to determine this matter on the basis of the evidence before it.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provides the following relevant information. She was born in Japan in [specified year] in Chiba city and she is a Japanese citizen. She has never been married. She speaks, reads and writes Japanese and English. In Japan, she has her parents and she calls them twice a week. She is a Christian.
From [birth] to June 2008, she lived in the Kisarazu-Shi district of Chiba city. From June 2008 to May 2009, she lived at a different address in Kisarazu-Shi. From [year] to 1992, she worked as an office administrator for [Employer 1]. From 1992 to 2000, she worked as a salesperson in a [business 1]. From 2000 to 2009, she worked a sales staff in a [business 2]. From 2009 to 2018, she was an overseas student and did some casual work.
The applicant completed high school in Japan. In Australia she has studied and completed various courses from May 2009 to April 2018.
She most recently departed Japan [in] July 2016 from [a named] Airport and arrived in Australia the following day as the holder of a Student visa.
Evidence before the Department and the Tribunal
Claims for protection
The applicant’s claims for protection are referred to very briefly in her protection visa application form and set out in more detail in a written statement attached to her form. She claims as follows:
·     On [a day in] August 2017 at about [time], a sudden earthquake caused a car to run out of control.
·     The applicant’s mother was passing and [she was injured] by the car. Some passengers called the police and the applicant’s mother was taken to hospital for simple medical treatment.
·     Some passengers found that the driver of the car was in a panic and left [some evidence]. The driver [had a medical condition] and the sudden earthquake caused him to make a wrong judgment and hit people.
·     In the investigation, the applicant’s family learned that the driver had a criminal record and was a member of the Yakuza[1].
[1] The Yakuza are Japanese gangsters (accessed 26 August 2024)
·     The police’s performance in handling the traffic accident was doubtful and the applicant’s father was told that the investigation into the traffic accident had been closed.
·     At the start of November 2017, the applicant’s parents complained to the government. The applicant also wrote an article for the local media and hoped this could get some public attention.
·     Because the applicant’s family demanded compensation for the traffic accident the Yakuza retaliated against them and they are facing a risk to their lives.
·     On 19 January 2018, the applicant’s father was taken by the Yakuza to [a specified location] where he was persecuted and badly beaten. The Yakuza threatened him because he had been making trouble for them. He was taken to hospital because his life was in danger. Three days later, he was returned with wounds.
·     The applicant’s mother was not home and so she survived. After the applicant’s father was abducted, her mother immediately went into hiding.
·     The applicant’s father later told her in a phone call that the Yakuza said to him that they could do anything to him as long as he is alive. Her family reported what happened to the police but the police did nothing.
·     The local police co-operated with the Yakuza.
·     The applicant did not dare to go back to Japan. If she returns to Japan she will be arrested and persecuted.
·     Her Student visa will expire soon and so she has to apply for protection.
Other information
On 9 November 2020, and again on 17 December 2020, the Department wrote to the applicant requesting further information about her claims. The applicant provided the Department with her updated email address but did not respond to the substance of the Department’s request for further information.
The applicant did not provide any additional material to the Tribunal in support of her claims for protection.
The delegate’s decision
The applicant was not invited to an interview with the Department. On 25 January 2021, the delegate made their decision. Based on the evidence before them, the delegate was not satisfied of the applicant’s claims and found that she is not a person in respect of whom Australia has protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As discussed above, the applicant indicated in her Response to Hearing Invitation form that she would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. In light of this, the Tribunal only has her written claims before it to consider. As the applicant declined the opportunity to have a hearing, the Tribunal has not had an opportunity to explore and test her claims with her.
The mere fact that a person claims to fear 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, the fact 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.[2]
[2] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
In the Tribunal’s view, the applicant’s written claims are lacking in sufficient detail and substance in a number of respects. For example, the applicant has not specified where the claimed traffic accident occurred that injured her mother, nor the nature of the injury to her [mother] and whether other people were injured. The applicant has not explained in what way the police’s performance in handling the accident and investigation was doubtful, particularly given the applicant claims the injury to her [mother] only required simple treatment and the accident was apparently caused by the driver of the car making a wrong decision when a sudden earthquake hit. The applicant has not explained why her parents were not satisfied with the police investigation and why this led them to make a complaint to the government. She has not explained from whom her parents sought compensation, or why, and in what amount. She has not explained how her parents complained to the government, the detail of their complaint, to which part of government the complaint was made or what response they received. The applicant claims that she wrote to the local media to get some public attention but she has not provided a copy of the article she claims to have written or explained where her article was published and when.
The applicant has not explained why her parents’ actions in complaining to the government about the police investigation led the Yakuza to retaliate against her father in the extreme way she claims. It is not clear from the applicant’s claims what the Yakuza were so afraid of or annoyed about that led them to abduct and physically assault and threaten her father to the extent that he needed to be taken to the hospital, which presumably would have drawn more adverse attention to the Yakuza than the traffic incident which injured her mother. The applicant has not explained where her mother went into hiding after her father’s arrest by the Yakuza, or for how long. The applicant has also not explained where her father returned to live after he was released from hospital, and whether he also went into hiding and, if so, for how long. The applicant claims that her father told her that he would never give up, even at the expense of his life, but she has not explained what, if any, action he continued to take to pursue his complaint after being released from hospital. The applicant has not explained whether the Yakuza have made any threats against her and, if so, what those threats involved, or why she fears she will be arrested and persecuted if she returns to Japan.
Based on the evidence before it and the concerns set out above, the Tribunal is not satisfied that the applicant’s mother was involved in an accident [in] August 2017 and sustained a [specified] injury as a result of being hit by a car driven by a [member] of the Yakuza when the car that person was driving ran out of control as a result of a sudden earthquake. As the Tribunal does not accept that this event took place, it follows that it does not accept the applicant’s other claims that flow from this. The Tribunal does not accept that the applicant’s mother was taken to hospital for simple medical treatment. As the Tribunal does not accept that the claimed accident occurred, it follows that the Tribunal does not accept that the police’s performance in handling the traffic accident was doubtful and the applicant’s father was told that the investigation into the traffic accident had been closed. The Tribunal does not accept that her parents sought compensation for the accident. The Tribunal does not accept that the applicant’s parents complained to the government or that the applicant wrote an article for the local media. As the Tribunal does not accept that the claimed events took place, the Tribunal does not accept that the Yakuza retaliated against the applicant’s parents. The Tribunal does not accept that the applicant’s father was abducted for three days, physically assaulted and threatened by the Yakuza, and then hospitalised due to his injuries. The Tribunal does not accept that the applicant’s mother avoided being abducted or survived because she was not at home and it also does not accept that she went into hiding after her husband was abducted by the Yakuza. The Tribunal does not accept that the applicant’s father told the applicant about the threats and assault or that he would never give up. The Tribunal does not accept that the local police co-operated with the Yakuza. The Tribunal does not accept that the applicant fears returning to Japan for the reasons claimed.
For the reasons explained above, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that 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 the applicant will suffer significant harm.
Conclusion
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2024] AATA 4358

26 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice