2317851 (Refugee) - [2024] AATA 939

2317851 (Refugee) [2024] AATA 939 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317851
COUNTRY OF REFERENCE:                   Kiribati
MEMBER:James Lambie
DATE:25 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2024 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Kiribati – physical and emotional abuse by former partner – physical health – delay in applying for protection and multiple entries and departures – no additional information provided and consent to decision without hearing – country information – domestic violence, cultural taboos on reporting and encouragement of reconciliation rather than prosecution – police and community resources – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211
CASES
BZADA v MIAC [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (FCA, NG994 of 1993, 11 August 1994)
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (Carr J,10 March 1998)
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
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 16 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of Kiribati, applied for the visa on 16 August 2023. 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 under s.36 of the Act and subclause 866.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 November 2023.
On 19 December 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on this information alone. It invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in her case on 25 January 2024. On 24 January 2024, the applicant responded to the invitation, advising 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.
The applicant remained unrepresented throughout this review.
CRITERIA FOR A PROTECTION VISA
The criteria for…

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 2317851 (Refugee)

Details

AGLC: 2317851 (Refugee) [2024] AATA 939
Case: [2024] AATA 939
Decision Date: 25 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a citizen of Kiribati who sought a protection visa for Australia. The applicant claimed to have suffered physical and emotional harm from a former partner and asserted that returning to Kiribati would result in death due to this harm and her current medical condition. She also contended that domestic violence was prevalent in her home country, reporting such issues was culturally taboo, and reconciliation was encouraged over prosecution, with limited police and community resources available.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2) of the *Migration Act 1958* (Cth), specifically whether she was a refugee due to a well-founded fear of persecution, or alternatively, whether she was entitled to complementary protection under section 36(2)(aa) due to a real risk of significant harm if removed from Australia. The Tribunal also had to consider the applicant's responsibility to provide sufficient evidence to establish her claims, as outlined in section 5AAA of the Act.

The Tribunal reasoned that the onus was on the applicant to establish the necessary facts to satisfy the criteria for a protection visa, citing established case law that a decision-maker is not required to make the applicant's case for them or uncritically accept all allegations. The Tribunal noted the applicant's multiple entries and departures from Australia and the delay in lodging her protection visa application. While acknowledging the applicant's medical reports detailing neurosurgery and a pre-existing condition, the Tribunal found that the applicant had not provided sufficient detail or evidence to demonstrate that she would face persecution or significant harm upon return to Kiribati, nor had she established that effective protection measures were unavailable. The Tribunal concluded that the applicant had not satisfied the requirements of section 36(2) of the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Background The applicant is a [age]-year-old Kiribati citizen. She previously resided in [Town 1] in Kiribati. Her religion is [Church 1]. She is employed as [an Occupation 1] at [Employer 1]. She has previously undertaken [an] Apprenticeship in February 2019. According to departmental records she has entered Australia multiple times since 2008. She was granted a 456 (Business Short Stay) visa on 3 December 2007. On 14 December 2007 she was granted a 988 (Maritime Crew) visa. On 19 June 2018 she was granted a Temporary Work (International Relations) (Subclass 403) visa. On 30 August 2021 she was granted a Temporary Activity (408) visa. On 17 November 2022 she was granted another Temporary Activity (408) visa. [Date] June 2023 is her latest date of arrival to Australia from [Country 1]. She lodged her protection visa application on 16 August 2023. Claims The applicant’s claims are set out in the protection visa application and evidence contained in Department file [number]. The claims were summarised by the delegate of the Department as follows: ·She left her home country to work. She left her previous partner due to his infidelity. There are rumours in her home country that she did not return because she had a relationship in Australia. ·She experienced physical and emotional harm in her previous relationship ·She is unable to seek help as it would be considered a personal matter ·Moving within her country would not work as her home country is a little island ·She would die if she was returned because of harm she will experience and her current medical condition ·Women experience physical and emotional abuse in her home country ·There are no medical facilities which can help her with her current medical conditionThe applicant provided a discharge summary from [Hospital 1] dated 14 August 2019 which states that she was admitted for neurosurgery and a procedure was performed on 7 August 2019 involving [specified medical procedures]. The applicant provided an MRI report from Queensland Xray dated 17 March 2022 which states that the applicant’s medical history includes a [Condition 1] which was [operated on] in [Country 2] in 2017 and [operated on again] in [City 1] on 7 August 2019, and that the applicant has been [disabled] since childhood. The report stated that the [condition] has been [operated on] with reduced [specified result] compared to the MRI done in May 2019. The [condition] is unchanged in size and morphology compared to MRIs done in January and September 2020. Evidence presented prior to the hearing The applicant produced to the Department of Home Affairs (the Department) the following documents: ·Her protection visa applications forms. ·Her passports issued [in] 2017 and [in] 20222. ·Medical reports from [Hospital 1] dated 7 August 2019 and a report from Queensland Xray dated 17 March 2022.

Evidence

Evidence Before The Court

The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act. Assessment of claims and evidence, and findings: The mere fact that a person claims fear of 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, 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

Decision

Reasons for decision

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, she does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicants a protection visa.James LambieSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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