2316506 (Refugee)

2316506 (Refugee) [2024] AATA 2647 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316506
COUNTRY OF REFERENCE:                   Kiribati
MEMBER:Mark O'Loughlin
DATE:8 April 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 April 2024 at 11:03am

CATCHWORDS
REFUGEE – protection visa – Kiribati – decision on the papers – claimed fear of former partner – insufficient information before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 6 October 2023, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 10 August 2023. The delegate refused to grant the visa on the basis that they were not satisfied of the credibility of the applicant’s claims to fear harm.
On 2 November 2023 the Tribunal invited the applicant to give evidence and present arguments relating to issues arising in relation to the decision under review at a hearing on 23 November 2023.
On 20 November 2023 the applicant sent an email to the Tribunal in which he consented to the Tribunal deciding the review without the applicant appearing before it.
The Tribunal is satisfied the applicant consents to the Tribunal deciding the review without the applicant appearing before it as contemplated by S425(b) of the Act.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant set out claims in his Protection Visa Application (PVA) lodged on 10 August 2023.
He claimed he left Kiribati to work in Australia as a fruit picker on a short term work visa. He stated he had experienced different kinds of harm from people in his village. He said they harmed him because he had doubts about his relationship with his former partner, who is a member of an influential family.
He claimed if he returns to Kiribati he will be seriously harmed or killed by her family.
He stated his former partner was pregnant to another man, so he left the relationship. His former partner kept their child, her first-born.
He said his former partner and does not message him any more, or communicate with him in any way.
Subsequent Submissions
On 22 August 2023 the Department invited the applicant to provide further information about his claims. He was asked to provide a copy of a further document to which he had referred in his claims, but which had not been attached to the PVA (despite the assertion that it was attached).
He was also asked to provide further information including;
·Details of his ex-partner and his child including contact information.
·Details about his relationship with her including how they met, when the relationship started and when it ended.
·Evidence of the relationship, such as evidence of joint bank accounts, lease arrangements, correspondence, or photographs.
·Details of the harm and types of harm he experienced from her family including dates, names and places.
·Details of her family’s position including position of power her family members hold and how they would use their influence to harm him.
·Details of how he left Kiribati if officers of the government were intent on killing him.
·Information about why he thinks his ex-partner’s family will cause him harm given she has ceased communication with him and moved on to another relationship.
·Advice as to whether the authorities had ever become involved in his family situation and if so the details of such involvement.
·Details and evidence of why he cannot relocate within Kiribati.
He was told that if he could not provide the information requested, he should explain in detail why he could not.
He responded on 18 September 2023.
In his response he provided the first names of his former partner and her two children.
He said his relationship started in 2020. He said he could not provide evidence of the relationship.
Neither he nor his family have the current address of his ex-partner and their child.
He said he cannot give details of the harm he experienced when they were together.
He said he had been harmed and mistreated by her family but did not provide any detail or description of that.
The applicant provided a further letter on 20 November 2023.
That letter says he cannot remember the dates of his former relationship.
He said he ended the relationship when he found out his partner lived with another man and was having that man’s child.
He said he cannot provide further details because this behaviour is somewhat normal in his home country.
He said there is no evidence of his relationship with the mother of his child other than the fact of the existence of the child.
He said he cannot provide information about her family’s influence.
He cannot say how he would be harmed if he returned, but he is sure of mistreatment and serious harm.
CRITERIA FOR A PROTECTION VISA
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection criterion”.
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, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
S36(2)(a) - REFUGEE CRITERION
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. This is called the “refugee criterion”.
S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is a national of Kiribati. Further, the Tribunal is satisfied that the applicant is outside Kiribati.
The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Kiribati, which is the next part of the definition of “refugee” at 5H(1)(a).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to Kiribati, he would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of Kiribati.
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.
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION
An applicant who has been found not to meet the refugee criterion in s 36(2)(a) may nevertheless be entitled to the grant of the visa if they meet s 36(2)(aa), the complementary protection criterion.
To meet S36(2)(aa) of the Act an applicant must be a person to whom Australia has protection obligations because the Minister is satisfied Australia has protection obligations to them because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to their receiving country, in this case Kiribati, there is a real risk that they will suffer significant harm.
The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
Findings and Reasons
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that it is ‘well-founded’, or that it is for the reason claimed.
Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
In this matter, the applicant has not provided adequate information about his claims. He has asserted that he risks death but does not say how that will happen. He has not been able to describe the harm he says he suffered in Kiribati, or provide any description of the harm he will suffer if he returns.
There is not enough detail for the Tribunal to assess whether there is a real chance of such harm occurring or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Kiribati, there is a real risk that he will suffer significant harm.
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.
Conclusions
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) or s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
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 2647

8 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies