2300587 (Refugee)

[2023] AATA 1557

2300587 (Refugee) [2023] AATA 1557 (7 March 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2300587

COUNTRY OF REFERENCE:                   Morocco

MEMBER:  Joseph Lindsay

DATE:  7 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 7 March 2023 at 11:00am

CATCHWORDS

REFUGEE – protection visa – Morocco – forced marriage – locked in a room for over a year – criminal activity in Australia – credibility concerns – immigration history – unlawful status – delay in seeking protection – agreed to voluntary removal – claims vague and lacking in detail – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant, who is a citizen of Morocco, applied for the visa on 9 December 2022. The applicant participated in a video hearing with the Tribunal on 6 March 2023 to give evidence and present arguments. The applicant made clear that he understood English and that he did not require an interpreter.

CRITERIA FOR A PROTECTION VISA

1. 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.

1. 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.

1. 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).

1. 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.

1. 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

1. 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

1. In his written protection application, the applicant claimed that he was seeking protection because he did not want to return to Morocco. He claimed that he had some “family problems” due to the way he “chose” his life and, in addition, he did not want to marry his relative. He claimed that his father and his cousin (from his father’s side) would harm him if he returned to Morocco. He claimed he had been harmed when he was in Morocco and when asked for details about the claimed harm, he stated that he had been held in a room for over a year with “one pair of cloth and beatting on a weekly basses with a belt and knife” (sic). He claimed that he “still have scares” (sic) on his legs.

1. He claimed he did not seek help when he was in Morocco because his father “has connection with the police.”

1. He claimed that if he returned to Morocco, he would be murdered by his father and cousins from his “family side.”

1. He claimed that the Moroccan authorities would not help him because they “have connection with the police and local government.”

1. The Tribunal spoke to the applicant in the hearing where the applicant made a number of admissions. The applicant admitted:

-He came to Australia at the end of 2015.

-He initially stayed with his uncle, [Mr A], in Adelaide, who runs a [business].

-He came to Australia on a student visa, but he did not have the money to pay for his course fees.

-His student visa was cancelled, and he became unlawful in 2016.

-He did various jobs, generally cash in hand work.

-He moved to Western Australia, and ultimately moved to the [Town 1] area.

-In 2018, he was located by WA Police. He was detained and subsequently placed into [an] Immigration Detention Centre. He was then moved to [a different facility], from where he subsequently escaped.

-He then returned to Western Australia and was subsequently again detained by WA Police in 2019. He was then remanded in criminal custody, was charged and pleaded guilty to drug offences. He was placed in [a] Prison, and then was transferred to [a different] Prison in Western Australia. He was subsequently released from criminal custody and again transferred back to [an] Immigration Detention Centre.

-He said he decided he wanted to return to Morocco, and so agreed to be voluntarily returned to Morocco. He then was transferred to Christmas Island. After about a

year, he decided that he did not want to return to Morocco, and he withdrew his request for voluntary removal.

-At some time in 2022 the Department attempted to return him to Morocco, but he was not returned to Morocco.

-After a substantial period of time, he applied for a protection visa at the end of 2022 because he was told he “had to apply for something.”

-He has not held a substantive visa since 2016.

1. The Tribunal asked the applicant about his protection claims. He said his parents are still in Morocco, but he has not spoken with them for some time. In respect to what he claimed had happened to him in Morocco, the applicant said his father wanted him to marry his cousin, who is his “father’s brother’s wife’s sister’s daughter.” He said he has met this girl before at family gatherings. He said he didn’t want to marry his cousin because “it’s weird.” He said the arrangement to marry his cousin was actually made when he was about 6 - 7 years old.

1. In respect to his claims of harm, the applicant said when he was about 20 or 21 years old, his father, who he claimed was also a [Occupation 1], locked him in a room. He said he was locked in the room for over one year and not allowed out. He said, while he was locked in the room, his father and his father’s partner and father’s brothers would regularly beat him. He said his mother would bring him food throughout the time he was in the locked room.

1. He said his mother was the one who ultimately let him out of the room and helped him get to Australia. He said his father is now older and retired and has health problems.

1. The Tribunal put to the applicant that it may find that his protection claims were not credible for a number of reasons:

-He had been unlawful for a substantial period of time since he had been in Australia;

-He had applied for protection only after being in Australia for many years;

-He had previously indicated that he wanted to return to Morocco when he agreed to be voluntarily removed;

-The claims he had made appeared to be vague and lacking in detail.

1. In response, the applicant conceded that what the Tribunal had put to him was correct. He conceded that his father was now retired and with health problems probably meant that his father was not going to kill him, but he still thought that his father would put him back in the room if he returned to Morocco.

1. When asked what he would do if he returned to Morocco, the applicant indicated that he could [work], but he just did not feel that life would be good.

1. The applicant stated that he had no further claims to make, and he did not have any further information he wanted to provide to the Tribunal.

Analysis and findings

1. The Tribunal has carefully considered the applicant’s protection claims and the information he provided in respect to his claims. The Tribunal is not satisfied that the applicant provided

credible information in respect to his protection claims. The Tribunal accepts and places heavy weight against the applicant in respect to the following findings:

-the applicant has been unlawful for a substantial period of time since he has been in Australia;

-the applicant applied for protection only after being in Australia for many years; and

-the applicant has previously indicated that he wanted to return to Morocco when he agreed to be voluntarily removed.

1. In respect to the applicant’s protection claims, the Tribunal finds that the applicant’s claims are vague and lacking in detail. The Tribunal finds the applicant’s claim that his father was forcing him to marry a girl that he did not want to marry to be vague and lacking in detail. The Tribunal finds the applicant’s explanation that he was locked in a room for over a year, where he claimed he was regularly harmed by his father and his father’s partner and father’s brothers to be vague and unconvincing. The Tribunal finds that the applicant’s previous intention to return to Morocco to be at odds with his claims of having a genuine fear of his now retired elderly father (with health problems) or his father’s colleagues or his family members.

1. In considering the totality of the evidence, the Tribunal finds that the applicant has not provided credible information about any of his protection claims and finds that all of his protection claims are not credible. The Tribunal specifically does not accept that the applicant was being forced to marry someone he did not want to marry when he was in Morocco, whether that person was his cousin or anyone else. The Tribunal specifically does not accept that the applicant is likely to ever be forced to marry someone he did not want to marry, whether that person was his cousin or anyone else, if he returned to Morocco in the foreseeable future.

1. The Tribunal specifically does not accept that the applicant was ever harmed when he was in Morocco and does not accept that he was locked in a room for any period of time, let alone over a year.

1. The Tribunal specifically does not accept that the applicant was ever harmed by his (now) retired elderly father (with health problems) or his father’s colleagues or his family members or anyone else when he was in Morocco.

1. The Tribunal specifically does not accept that the applicant’s (now) retired elderly father (with health problems) or his father’s colleagues or his family members or anyone else would harm him for any reason if he returned to Morocco in the foreseeable future.

1. The Tribunal is not satisfied that any scars the applicant has were caused by the applicant’s father or his father’s colleagues or his family members.

1. Considered individually and cumulatively, the Tribunal finds that all of the applicant’s protection claims are not credible.

1. The Tribunal has considered the applicant’s criminal activity in Australia and whether an imputed protection claim arises as a result of his criminal activity in Australia. Whilst the applicant did not specifically raise this as an issue, based on the information provided to the Tribunal, the Tribunal is not reasonably satisfied that his criminal activity in Australia would mean that he would face either a real chance of serious harm or a real risk of significant harm should he return to Morocco in the foreseeable future.

1. Overall, the Tribunal is not satisfied that the applicant faces either a real chance of serious harm or a real risk of significant harm should he return to Morocco in the foreseeable future.

1. 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).

1. 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). Given the Tribunal’s findings in respect to the credibility of the applicant’s claims, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under

   s 36(2)(aa).

1. 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

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

Joseph Lindsay 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.

…