2400185 (Refugee)

2400185 (Refugee) [2024] AATA 2569 (21 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2400185
COUNTRY OF REFERENCE:                   Kiribati
MEMBER:Denny Hughes
DATE:21 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2024 at 12:13pm

CATCHWORDS
REFUGEE – protection visa – Kiribati – threatened by family, wife’s family and villagers because of suspected affair while in Australia – procedural fairness – notification of time of hearing – applicant in South Australia, member in Victoria and hearing notice gave time in Victorian time – no appearance by applicant – doubt as to discharge of obligations and further hearing scheduled and notified – consent to decision without hearing, but intention to obtain and rely on documents – no appearance at rescheduled hearing, no further contact or documents provided – limited and undetailed claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425A(1), 426(1A)(b), 426(1C)(a)
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 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 2 January 2024 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 Kiribati, applied for the visa on 1 September 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for grant of a protection visa.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Visa application
The applicant summarised his claims in the protection visa application form as follows:
·He left his country to work in Australia. He has been travelling throughout the country as a fruit picker. It was only after the pandemic that he encountered problems.
·He was not harmed in his home country before, but now he had been threatened by some of the people from his village, and some family members. They thought he had an affair in Australia and that is why he was not able to go home during the pandemic.
·While he had sought help before when he encountered family problems, now he cannot because the authorities are family members of his current wife who threatened to harm him if he goes home. Some of his wife’s family members, and his own family members, are working for the government and he is afraid for his security. For that reason, protection is impossible.
·Relocation is impossible. Moving to another part of the country will not help in his case, because his family and his wife’s family can live anywhere in Kiribati. His country is just a small country where you can be easily traced.
·If he returns to his country now, with the current situation, he will receive threats from family members and members of the village.
·He is positive that he will be harmed and the people from his village will be responsible.
The visa application form refers to an attached document, but no document is attached other than his licence and passport.
The delegate did not interview the applicant.
Tribunal review
The applicant lodged his application for review on 5 January 2024.
On 5 March 2024, the Tribunal invited the applicant to attend an in person hearing on 4 April 2024 at 2:00pm at the Tribunal’s Melbourne office on Williams Street.
The applicant did not appear at the hearing and the hearing was closed for his non-attendance.
On 8 April 2024, the Tribunal dismissed the application for review under s 426(1A)(b) because the applicant did not attend the hearing. On the same date, the applicant was notified of the decision to dismiss the application. He was advised that he may apply to the Tribunal, in writing, for reinstatement of the application by 22 April 2024.
On 11 April 2024, the applicant emailed the Tribunal to ask for his review to be reinstated, indicating that he was unable to attend the scheduled hearing because he did not have the proper equipment for a virtual or webcam interview. He also stated that he has been trying to communicate to his family in his home country but they find it difficult to secure documents relating to his application that he can show during the hearing. He indicated he is asking his friend for help about how to obtain or secure documentation that he must have before attending a hearing to support his claims.
On 18 April 2024, the Tribunal emailed the applicant and asked him to call the Tribunal urgently about his application for review.
On 22 April 2024, the applicant called the Tribunal with the assistance of a friend. A Tribunal Officer asked him to update his contact details and complete an MR6 form. The officer also indicated that the Tribunal would like a further explanation for why he missed the hearing. The officer noted that in his 11 April 2024 email he states he missed the hearing because he did not have proper equipment to join a video hearing, however the hearing was an in-person hearing. The applicant’s friend explained that the applicant thought the hearing was online because he is not in Victoria anymore. The officer advised the applicant’s friend that the hearing invitation did not state it was online and the Tribunal was not notified of any change of address. The friend said he probably misunderstood the hearing invite because of the language barrier.
On 23 April 2024, the applicant wrote a further email. He said that he did not know that the hearing would be face to face, and that is why his first letter stated that he did not have the proper equipment for the hearing online because he does not use new technology. He stated that he is now living in South Australia working fulltime. He reiterated he needed time to secure documentation to support his application as the technology in his country is not good. The applicant also attached an MR6 form updating his residential address in [Suburb], South Australia.
On 1 May 2024, the Tribunal decided to reinstate the application under s 426(1C)(a) of the Act. While the Tribunal considered the applicant should have contacted the Tribunal in advance of the hearing if he had changed his location and was unable to participate in the hearing, it accepted his non-attendance was due to the fact that he was no longer living in Victoria.
On 2 May 2024, the Tribunal invited the applicant to attend a video conference hearing on 11 June 2024 at 2:00pm at the Tribunal’s office on King William Street in Adelaide. The Member would appear from Victoria. On the same date, the Tribunal also sent the applicant a separate email asking him to confirm whether he required an interpreter.
The applicant was sent SMS reminders about the hearing on 3 June 2024 and 7 June 2024.
The applicant did not complete the hearing form, nor did he respond to the Tribunal’s email regarding whether he required an interpreter.
The applicant did not attend the Adelaide office at the commencement time of the hearing. In reviewing the file, the Tribunal identified that the hearing invitation sent on 2 May 2024 erroneously recorded the start time of the hearing as 2:00pm (VIC time) rather than South Australia time, where the applicant was invited to appear. Given the half hour time difference between South Australia and Victoria, the Tribunal elected to wait an additional 30 minutes after 2:00pm (South Australian time) to ensure that the applicant was not disadvantaged by the time issue on the hearing invitation.
The applicant did not appear at the Tribunal’s Adelaide office, nor did he contact the Tribunal about his non-attendance. The Tribunal declared the hearing closed for the applicant’s non-attendance at 3:10pm (Victoria time) and 2:40pm (South Australia time).
Following the hearing, the Tribunal has weighed the fact that s 425A(1) of the Act requires that if the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. The Tribunal considered there was some doubt as to whether it had discharged its obligation in terms of notifying the applicant of the ‘time’ at which that second hearing was to take place.
On 12 June 2024, the Tribunal invited the applicant to attend a further rescheduled hearing on 18 June 2024 at 9:00am (South Australia time) at the Tribunal’s office on King William Street in Adelaide. The Member would again appear via video conference from Victoria.
On 17 June 2024 at 20:54, the applicant made an online submission, being a ‘response to hearing invitation’ form.
Part 1 of that form relevantly asks whether the applicant would take part in the hearing scheduled for 18 June 2024. The applicant checked the answer ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’.
Part 2, Question A of that form relevantly asks if there is any issue that may affect the person’s ability to take part in the hearing. The applicant indicated ‘Yes’. He stated that family members were not able to execute documents to support his claims as it is not easy for non-English speakers to be able to understand fully what he had asked them to do or submit.
Part 2, Question B of that form relevantly asks if the person believes that they will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation. The applicant indicated ‘Yes’ and states that he needs more time because he really needed to attach documents to support his claims. He states that the communication barrier is the main reason for his family members to understand the documents he needs from his home country.
In Part 2, Question C of that form, he also indicated he did not need an interpreter.
Part 3 of that form relevantly asks if the person intends to rely on any documents at the hearing, e.g. witness statements, written submissions, country information or other evidence. The form also states that the person should outline any documents and send copies to the Tribunal at least seven days before the hearing. The applicant indicated ‘yes’ and stated that the documents requested from his country have not arrived yet.
The Tribunal considered there was some uncertainty as to whether the applicant was consenting to a decision on the papers given his other answers appeared to be at odds with his indication that the Tribunal should make a decision on the papers. As such, the Tribunal did not cancel the hearing in case there was a misunderstanding and the applicant was still intending to attend.
The applicant did not attend the Adelaide office and did not join the hearing scheduled for 9:30am. At 9:55am, the Tribunal closed the hearing for the applicant’s non-attendance.
Following the hearing, on 18 June 2024, the Tribunal wrote to the applicant and confirmed that the applicant had elected not to attend the hearing scheduled for 18 June 2024 and that the Tribunal intended to proceed to make a decision in terms of the review.
The Tribunal also weighed whether the ‘response to hearing invitation’ form included a request for further time to provide documentation. In its 18 June 2024 email, the Tribunal further advised the applicant that it had not agreed to his request for further time to provide documentation in support of his claims. The Tribunal also advised the applicant that any information he wished to have considered by the Tribunal should be provided immediately, as a decision in this matter could be made at any time. As of the time of this decision, no submissions have been made.
The Tribunal notes that the applicant had indicated on 11 April 2024 that he was having difficulty obtaining documentation from relatives in Kiribati and that he had sought the assistance of a friend. The issue of the documentation was also discussed with a Tribunal Officer via telephone on 22 April 2024.
The Tribunal has considered the fact that there can be difficulties in obtaining information from other countries, but it also considers the applicant has been provided with a fair and reasonable opportunity to provide any documents or other evidence in support of his claims. The applicant has also not explained what the documents are or how they are relevant to his claims, or the steps he has taken to obtain the evidence. The Tribunal also does not consider difficulties in obtaining such documentation is a barrier to the applicant attending a hearing.
In the hearing invitation, the Tribunal advised the applicant that it had considered the material before it but is unable to make a favourable decision on this information alone. The Tribunal considers it has taken all reasonable and necessary steps to enable the applicant to appear before it and give evidence.
Having regard to all the circumstances, the Tribunal has decided to proceed to make a decision in this matter on the material before it and without the applicant appearing before it.
CRITERIA FOR A PROTECTION VISA
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Kiribati is a small country of atoll islands in the Pacific. The country relies heavily on fishing revenue and remittances from citizens employed abroad.[1]
[1] DFAT, Kiribati Country Brief, 2024
The applicant provided the Department with a copy of the biodata page from his Kiribati passport, in addition to his Kiribati driving licence. The Tribunal is satisfied that the applicant is a national of Kiribati.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Kiribati is his receiving country and has assessed his claims accordingly.
Claims for protection
The applicant claims that he has been threatened by his family, his wife’s family and people from his village because they suspect he has had an affair while he was working in Australia. He claims he cannot obtain protection from the authorities, because some of their family members are working for the government. He claims he cannot relocate within Kiribati because it is a small country, where he has family members everywhere, and where he can easily be traced.
There is very limited evidence or detail in the applicant’s claims. What evidence that is before the Tribunal does not satisfy it about the applicant’s claims or his fears on return to the country. Given the limited evidence, the Tribunal does not accept that the applicant has had an extramarital affair or is suspected of having an affair, or that he has been threatened or is at threat from his wife’s family, his own family or people from his village. The Tribunal does not accept that his family or his wife’s family are employed in the government or authorities, or that he would be unable to obtain protection from the authorities in Kiribati.
As the Tribunal is not satisfied and does not accept his claims, the Tribunal finds that the applicant does not face a real chance of harm or serious harm, or a real risk of harm or significant harm, if he were to return to Kiribati, now or in the reasonably foreseeable future.
For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no claim or suggestion that the applicant satisfies s 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 Tribunal is not satisfied the applicant meets any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denny Hughes
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 2569

21 June 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Jurisdiction

Natural Justice

Standing

Statutory Construction