2112075 (Refugee) - [2024] AATA 4284

2112075 (Refugee) [2024] AATA 4284 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2112075
COUNTRY OF REFERENCE:                   Kiribati
MEMBER:Don Smyth
DATE:10 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 9:37am
CATCHWORDS
REFUGEE – protection visa – Kiribati – born in another country and fostered with distant relatives in third country from young age – abuse by foster family members – mental health – citizen of parents’ country – obtained foster country passport to work overseas, claiming foster parents as birth parents – identity, personal details, family members and original claim of land dispute notified as incorrect at departmental interview and new information given and claims made – has never lived in country of citizenship, and is unfamiliar with culture and customs – inconsistent documentation – religion – minority religion in Christian majority country – length of residence and separation from partner in Australia – late claim of membership of particular social groups – gender identity and sexuality – country information – freedom of expression – bogus document provided as evidence of identity, nationality or citizenship – no reasonable explanation – grant of visa prevented in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65(1), 91WA(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
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
BACKGROUND

The applicant applied for a protection visa on 23 January 2017. On 26 August 2021, a delegate of the Minister for Home Affairs (the Minister) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
The applicant appeared before the Tribunal on 6 September 2024 to give evidence and present arguments.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
The protection visa application was made in the name of [an alias, comprised of three names]. The application indicated that the applicant was born in [Village 1], [Island 1] in [Province 1], [Country 1] in [Month, Year 1]. It described his ethnic group as Ikiribati [Nationality 1] and his religion as [Religion 1]. It gave his citizenship as [Nationality 1].
The application indicated that the applicant had a de facto partner, [Ms A], who was a [Nationality 1] and born in [Month, Year]. It indicated that the relationship began in [Town, Country 1] in December 2011. The application named two sons, born in [Country 1] in [Months, Years] respectively, and a daughter, born in [Country 1] in [Month, Year]. It provided details of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2112075 (Refugee)

Details

AGLC: 2112075 (Refugee) [2024] AATA 4284
Case: [2024] AATA 4284
Decision Date: 10 October 2024

CaseChat Overview and Summary

The applicant, who used an alias, sought a protection visa. The dispute concerned the applicant's claims of persecution in their country of citizenship, [Country 1], and whether they met the criteria for a protection visa. The decision was made by Don Smyth.

The court was required to determine whether the applicant met the refugee criterion under section 36(2)(a) of the Migration Act 1958 (Cth), or alternatively, the complementary protection criterion under section 36(2)(aa). This involved assessing the applicant's claims regarding a land dispute with their brothers, fear of violence, and potential harm upon return to [Country 1]. The court also had to consider the credibility of the applicant's evidence, including the provision of a bogus document, and the relevance of country information regarding civil liberties and freedom of religion in Kiribati.

The court reasoned that the applicant had provided a bogus document as evidence of identity, nationality, or citizenship, and offered no reasonable explanation for this. This fact alone prevented the grant of a visa. Furthermore, the court considered country information which indicated that Kiribati is a multiparty democracy with generally upheld civil liberties and freedom of speech, and that individuals are free to express their views without fear of surveillance or retribution. The constitution also guarantees freedom of religion, with individuals free to practice and express their faith. The court found that the applicant had not established that they met the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 6 September 2024 to give evidence and present arguments.SUMMARY OF CLAIMS AND EVIDENCEProtection Visa Application The protection visa application was made in the name of [an alias, comprised of three names]. The application indicated that the applicant was born in [Village 1], [Island 1] in [Province 1], [Country 1] in [Month, Year 1]. It described his ethnic group as Ikiribati [Nationality 1] and his religion as [Religion 1]. It gave his citizenship as [Nationality 1]. The application indicated that the applicant had a de facto partner, [Ms A], who was a [Nationality 1] and born in [Month, Year]. It indicated that the relationship began in [Town, Country 1] in December 2011. The application named two sons, born in [Country 1] in [Months, Years] respectively, and a daughter, born in [Country 1] in [Month, Year]. It provided details of [brothers and sisters], all [Country 1] citizens and all with the surname ‘[Alias surname]’. It indicated that two sisters, [Ms B] and [Ms C], were resident in Australia. The applicant stated that he contacted his family in [Country 1] four or five times a week by mobile phone. He stated that his de facto wife and three children were residing in [Island 2], [Province 2]. The applicant provided details of a number of past addresses. He indicated that he had lived in [Island 1], [Province 1], from [Birth] to November 2003, and in [Island 3] from November 2003 to August 2005. He indicated that he had lived at addresses in [Town, Country 1] from August 2005 to February 2011, and again from July 2011 to August 2016. From February to July 2011, he was in [Country 2]. The applicant provided details of past employment in [Country 1], most recently as [an occupation 1] for [Employer 1] from August 2013 to August 2016. He provided details of education undertaken in [Country 1] between [Year] and 2002, and of a Certificate III course completed at [College] in 2011. The applicant indicated that he had last arrived in Australia [in] December 2016, having departed [Country 1] on the same date. He indicated that he had been granted a visitor visa on 29 July 2016. With regard to whether he had returned to his home country since arriving in Australia, the applicant referred to having entered his home country [in] December 2016. With regard to why he had returned to his home country, he referred to a visa requirement to leave Australia every 3 months. The applicant provided detail of travel to [Country 2] for study from February to June 2011, and indicated that he had transited in [Country 3] in June 2011. The applicant indicated that his travel document was valid for return to his home country. With regard to how he had obtained his current travel document, he stated, ‘Through legal procedure by filling up immigration form in [Town, Country 1]’. The applicant made written claims in his application, stating that he was seeking protection so that he did not have to return to [Country 1]. In summary, he claimed that he had left [Country 1] because of longstanding grievances over land title and ownership between him and his elder brothers. He indicated that this had resulted in displacement, insecurity, vulnerability and violence that was life threatening putting him and his children ‘in a very unstable future’. He stated that his life would be in danger if he returned to [Country 1]. His elder brothers and their ‘cohorts’ would continue to hunt him down and have revenge for a fight against them. He referred to having done this in self defence, stating that he would have died if he had not done it.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.INDEPENDENT COUNTRY INFORMATIONKiribati: Civil Liberties As discussed with the applicant at hearing, the Freedom in the World 2024 report for Kiribati from Freedom House states that Kiribati is a multiparty democracy that holds regular elections and has experienced peaceful transfers of power between competing groups. It states that civil liberties are generally upheld. The constitution and legal framework provide for democratic elections, and balloting is well administered in practice. Kiribati has a history of smooth and democratic transfers of power between government and opposition parties. All citizens formally enjoy full political rights. The government does not impose constraints on freedom of speech or the expression of personal views. Freedom House gave Kirtibati a rating of 4 (out of a possible 4) in relation to the question: ‘Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?’[1]Kiribati: Religion[1] Freedom House, Freedom in the World 2024: Kiribati With regard to the question, ‘Are individuals free to practice and express their religious faith or nonbelief in public and private?’, Freedom House gave Kiribati a rating of 4 (with 4 representing the greatest degree of freedom).[2] It stated: ‘The constitution guarantees freedom of religion. Religious organizations of a certain size are required to register with the government, but there are no penalties for failing to do so. Two islands in the southern part of the archipelago have overwhelmingly Protestant populations and maintain a “one religion” tradition. However, foreign missionaries may operate freely there upon requesting permission from local authorities.’[3][2] Freedom House, Freedom in the World Research Methodology, available at Freedom House, Freedom in the World 2024: Kiribati