1405732 (Refugee)

[2016] AATA 4233

1405732 (Refugee) [2016] AATA 4233 (29 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1405732

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:George Haddad

DATE:29 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2016 at 6:42pm

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 Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] May 2013 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on 10 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. The issues in the present case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons contained in the Refugee Convention; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

6. For the following reasons the Tribunal has concluded that the decision of the delegate should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Sri Lanka?

7. The applicant is a [age] year old male and claims to be a Sri Lankan Citizen, Sinhalese ethnicity and Catholic religion. He set out his claims for protection in a statutory declaration submitted with his protection visa application and was interviewed by a delegate of the Minister for Immigration in relation to his claims for protection [in] November 2013.

8. The applicant’s representative provided a written submission in support of the review that the applicant is owed protection on the basis of:

   a.Membership of a particular social group: “Returned failed asylum seekers”; and

   b.Illegal departure from Sri Lanka.

9. The submission to the Tribunal dated 29 May 2015 emphasises reliance on the submission of 13 January 2014 made to the Department; and the applicant’s statement of claims in the statutory declaration deposed on 3 May 2013 and provided with his protection visa application. It also emphasises the oral evidence the applicant gave at the interview with the delegate held [in] November 2013 and requests that the Tribunal listen to it. In support of the claims the submission also referred to reports by the Department of Foreign Affairs and Trade (DFAT) cautioning reliance only on these reports; and cited the Refugee Review Tribunal (RRT, as it then was) Complementary Protection Handbook of January 2012; and other sources including UN General Assembly Report of The Committee against Torture of November 2011; Amnesty International; US Department of State Country Report on Human Rights Practices – Sri Lanka 2013 and UK Home Office Guidance Note: Sri Lanka, 2013.

10. In assessing the applicant’s claims, I have had regard to the Department’s file relating to the protection visa application, the written submissions from the applicant’s representative to the Department and to the Tribunal; I have listened to the interview of [November] 2013 provided on disk and held on the Department’s file;  and I have also had regard to country information referred to in those submissions and that which I discussed during the hearing; including country reports from the Department of Foreign Affairs and Trade (DFAT) on Sri Lanka and the Procedures Advice Manual 3 (PAM 3) published by the minister’s Department.  I have also considered the DFAT report on Sri Lanka of 18 December 2015.

    Country of reference for assessment of claims

11. The Tribunal finds the applicant is a national of Sri Lanka. He has provided copies of Sri Lanka ID documents including National ID card, birth certificate, fisherman licence and passport. He was born in [Western Province] and lived there all his life except for periods he travelled to [Country 1] for work. There is no evidence to suggest that he is a national of any other country and he made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home region of [Western Province], the place he resided prior to departing Sri Lanka (and where his family continues to reside), to be his home region.

    Third country protection

12. There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in a safe third country for the purposes of s36(3) of the Act.

    The applicant’s claims

13. In his statutory declaration submitted with the protection visa application, the applicant states:

    He is in Australia with [two relatives]. He travelled to Australia with them as well as two [friends]. He cannot read or write and sometimes he finds it difficult to understand what people ask him. He has trouble with his memory. He was concerned about attending the interview with the Department as he may not be able to answer questions or recall events or when events occurred.

    He is in contact with his wife. She told him that his passport was at home and was first issued in 1992. She told him that from records in his passport he first went to [Country 1] in 1992 and returned to Sri Lanka in 1997. He went a second time to [Country 1] in 2004 and returned to Sri Lanka in 2006.

    He married in 1993 and his wife and [remaining] children continue to live in [Western Province]. [Number] of his [children] passed away when they were very young from health complications.

    His life in Sri Lanka was very difficult because he was poor and as a fisherman he could not catch enough fish to support himself and his family which includes his wife’s parents.

    He is concerned about the future of his [children] and wants them to get an education and do well.

    He fished near the border with India and in Indian waters. He did this because there was not enough fish in Sri Lankan waters. There were problems between the Indian and Sri Lankan fishermen. The Sri Lankan navy fired at Indian fishermen found fishing in Sri Lankan waters. The news of this was broadcast in India and the Indian navy became angry and chased Sri Lankan fishermen. He thinks he was chased by the Indian navy twice.

    The Sri Lankan navy also suspects fishermen like him of smuggling goods from India. On return form fishing near the Indian border the Sri Lankan navy inspected their boats and demanded fish for themselves.

    He is scared that if he returns to Sri Lanka the authorities would hurt him badly because when he left by boat he gave a copy of his fishing ID card to the Sri Lankan navy which is what he was usually required to do. The difference this time is that he and [one relative] did not return.  The navy will be angry that they did not return from their ‘fishing trip’. He is afraid that they feel they have been tricked and the authorities or the navy will detain and hurt him. He is worried about what will happen to his wife and family.

    The authorities in Sri Lanka will know that he complained about life in Sri Lanka to the Australian government and will hurt him for leaving Sri Lanka illegally.

    If he were to return to Sri Lanka, he would have to go back to fishing because that is all he knows. He would have to fish near the Indian border and continue to be suspected of smuggling by the Sri Lankan navy and they will continue to search the boat. This could become even worse because he tricked them and came to Australia. He could not relocate because of the problems with the Sri Lankan authorities and his wife and family would also have to move. He does not know where they would live or where he would find work. The Sri Lankan authorities are corrupt and will not protect him.

14. The applicant’s representative provided a written submission to the delegate dated 13 January 2014 after the interview the delegate held with the applicant. The submission focuses mostly on an issue which arose for the delegate relating to the applicant arranging for his passport to be sent to him from Sri Lanka to Australia to provide to the delegate as evidence of his nationality. The submission, among other things, refers to s.45 of the Sri Lankan Immigrants and Emigrants Act which prescribes the requirement for transmitting a travel document to a person residing outside Sri Lanka which includes written approval of an authorised officer. It also cites the guidance on the government Website for the procedure to be followed and cost in order to obtain permission to courier a Sri Lankan passport. The submission also refers to the UNHCR Handbook in assessing the well-founded fear of an applicant in possession of a passport. It also discusses credibility issues.

    The primary decision

15. The delegate summarises the oral evidence the applicant gave at the interview and concludes that the applicant was consistent in the information he provided relating to his claims and found the applicant to be a credible witness.

    The Tribunal hearing

16. The applicant confirmed his personal details and stated that he began work as a fisherman sometime between the age of [age]. He said he always went deep sea fishing on large boats. He stated that neither he nor anyone in his family has had any problems with authorities.

17. Having considered the applicant’s claims, written submissions and the record of his interview as I was requested to do, I asked the applicant early in the hearing, what he fears if he were to return to Sri Lanka.. He replied that ‘nothing would happen’ but that he suspects he will be held on remand and suffer. He added that his children will suffer as he will not be able to look after them. I asked who is currently looking after the children, he said his wife has been looking after them (since he left for Australia in 2012).

18. I asked why he suspects he will be held on remand. He said because he departed Sri Lanka illegally and the Navy has his ID.

19. I discussed with the applicant the substance of reports and country information relating to illegal departure from Sri Lanka and failed asylum seekers returning to Sri Lanka.

20. The applicant commented in reply that he wants to remain in Australia to accumulate money and educate his children as he can see the value of education given he did not have this opportunity. I indicated to the applicant that while I can understand his desire to stay for the reasons he articulated it may not of itself amount to a ground for protection. With his consent, I invited the representative to identify a ground for protection under the convention or otherwise. The representative suggested that the Tribunal explore “poverty” with intention by a state actor; and the punishment that he fears of the Sri Lankan Navy which would be disproportionate and therefore beyond the law of general application.

21. I asked the applicant what work he would do if he were to return to Sri Lanka. He said he would work as a fisherman. He said he would earn around Rs [amount]-[amount] a month depending on the catch. He said some people can earn Rs [amount]- [amount] if the catch is good. He added that the cost of diesel has gone up which is reducing the value of the catch.

22. I asked if he did any work other than fishing, he replied that he drove a [vehicle] but as he did not have a licence he worked only around his own village. I asked if there is any impediment to obtaining a licence, he said there is no impediment.

23. I asked what work he did in [Country 1]. He said [occupation] and earned the equivalent of Rs [amount] a month. I asked if he would take work again in [Country 1] or other Middle-East countries. He said he wants to stay in Australia and work.

24. I have considered the applicant’s claims relating to his concerns that the Sri Lankan Navy would punish him for deceiving them into believing he was setting out on a fishing trip but instead he travelled to Australia. The applicant indicated that he was always required to give a copy of his fishing permit to the Navy and that it applies to all fishermen similar to him. He gave evidence that all boats returning from fishing trips were searched routinely by the Navy for smuggled goods. He stated that he has never been involved in smuggling activities and has not had any problems with authorities. The applicant stated clearly that he has not experienced any difficulties from the authorities and no one in his family has experienced any difficulty with the authorities before or after he left Sri Lanka. He reiterated that he wishes to earn money to educate his children and that was his main purpose. In the latter part of the hearing when asked about his fears of returning the applicant said ‘I don’t want to lie’ requesting to be allowed to remain in Australia for a few years to earn sufficient money after which he would then return. 

25. Considering the applicant’s evidence as a whole, including the evidence he gave at the interview with the delegate as I was asked to have particular regard to, I have now formed the view that the applicant saw an opportunity to travel to Australia for work to accumulate money to provide his children with a better opportunity in their future through education. I accept this and it is difficult not to sympathise with and admire the applicant for the efforts he is prepared to make for his children. However, I do not accept that the applicant was or will be in the reasonably foreseeable future, of any adverse interest to the authorities. I put to the applicant at the hearing and invited the representative to make oral submissions on my observation on the evidence that I do not find in the applicant’s claims a nexus with any of the Convention grounds. Nor do I find that the applicant faces a real chance/risk of serious or significant harm now or in the reasonably foreseeable future, including for any Convention reason such as for illegal departure or as a returned asylum seeker as a member of a particular social group or otherwise.

26. I accept that the applicant as fisherman, the boat on which he worked was stopped by the navy and routinely checked for smuggled goods along with other boats working close to borders of other countries. I accept that he gave a copy of his fishing licence to the navy, according to his evidence this was routine on every occasion he and other fishermen set out on a fishing trip. I accept too that the navy engaged in some low level corruption and took some fish from the applicant’s catch for their own use. However, I do not accept the punishment he fears from the navy for ‘deceiving them into thinking he was going on a fishing trip but departed for Australia’ or the routine checking for smuggled goods or taking fish from the catch for their own use to amount to rise to the level of serious or significant harm nor that the applicant was singled out for this type of treatment.

    Country Information

27. The DFAT report[1] on Sri Lanka provides relevantly:

    [1] Country DFAT Report, Sri Lanka, 16 February 2015.

    Torture or mistreatment of returnees

    4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.

    4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This is due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.

    …

    Treatment of Returnees

    5.22 Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 1,600).

    5.23 Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.

    Exit and Entry Procedures

    5.24 Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

    5.25 During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

    5.26 For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion–Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.

    Offences under the Immigrants and Emigrants Act

    5.27 Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time–for example, because of a weekend or public holiday–those charged are held at the nearby Negombo Prison.

    5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

    Failed asylum seeker

1. I discussed with the applicant the DFAT and other reports relating to failed asylum seekers returning to Sri Lanka.

2. In relation to whether the applicant will face persecution if he were to return from a Western country as a failed asylum seeker having departed Sri Lanka in 2012, the DFAT advice includes reports of a small number of alleged torture or mistreatment by returnees to Sri Lanka as failed asylum seekers. Many of these allegations are made by third parties and have not been able to be verified, however, DFAT also notes that for the many thousands of returned asylum seekers since 2009 from Australia and other countries the assessment of risk of torture or mistreatment is low including for breaches of the departure laws. I have considered the applicant’s fear that the authorities would be angry because he has spoken out about life in Sri Lanka. I do not accept on the basis of the applicant’s profile that he faces any risk of mistreatment or torture.

3. The UNHCR has indicated that returnees may receive further contact from the authorities after arriving in their village of destination:

   UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.[2]

   [2] UN High Commissioner for Refugees, „UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka‟, 21 December 2012, p.8

4. On the basis of the applicant’s circumstances and the independent country information I do not accept that the applicant faces serious or significant harm if he were to return as a failed asylum seeker.

   Illegal departure

5. I relation to the applicant’s claim of fear because he departed Sri Lanka illegally, I accept that he entered Australia on a boat without a visa. I discussed with the applicant the consequences of departing Sri Lanka illegally and described information in reports including the DFAT report referred to above.

6. I accept that on returning to Sri Lanka the applicant will face questioning at the airport about his activities during the time he has been outside of Sri Lanka and may be held on remand for a short period of time. I accept that he will be charged and may be convicted under Sri Lanka’s departure laws. I accept that on return to his home village, he may be noted for his absence and questioned by the authorities. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates.  While I accept reports indicate that prison conditions in Sri Lanka are generally poor, the short period the applicant is likely to be held in remand does not amount to the level of serious or significant harm. Having regard to the DFAT Country Report on Sri Lanka, I do not accept that there is a real chance that the applicant will face serious harm at the airport or anywhere else on the basis of illegal departure now or in the reasonably foreseeable future.

7. In any event, the DFAT report indicates that all Sri Lankans are treated the same way regardless of religion or ethnicity and there is no evidence or information to indicate mistreatment of returnees held on remand and I find that the applicant will not be treated differently because of being convicted of breaches of departure laws for any Convention reason. I have considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56 and I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of generally applicable laws which are not applied with discriminatory intent or effect; nor are they applied selectively or in a discriminatory manner for a Convention reason or non-convention reason.

8. In relation to considering the issue of poverty, I considered the representative written submission and the country information cited in relation to poverty. I also followed the representative’s suggestion during the hearing that the Tribunal explore the question of poverty directly with the applicant. I took evidence from the applicant and he told me that he earned a similar income as other fishermen in similar circumstances. He took opportunities to work in [Country 1] for several years and earned similar moneys as the top range of income he said fishermen could earn in Sri Lanka. On his evidence he would also have opportunity to supplement his income by driving a [vehicle]. He also said that he would be able to obtain a licence to drive a [vehicle] officially and to earn an income to at least subsist. On this evidence I do not accept that the applicant would face a real risk or a real chance of harm arising from poverty

9. The applicant’s own credible evidence indicated that if he returned to Sri Lanka he would work as a fisherman as he has done for most of his life, with the additional potential of driving a [vehicle]. His income from fishing would be determined by the success of the catch as applies to all fishermen in similar circumstances. The rise in the price of diesel applies similarly to all users of diesel in Sri Lanka. Having considered the evidence I am satisfied that if returned to Sri Lanka, the applicant will continue to work and receive sufficient income as not to suffer harm.

10. I have also considered the written and oral submissions by the applicant’s representative including the country information reports.  However, I have given greater weight to the UN assessment as an independent assessment on the human rights situation in Sri Lanka and by DFAT on the current circumstances; and I consider the DFAT reports I referred to as an authoritative source with specific responsibility to provide such information to the Australian government. 

11. Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka; because of illegal departure or as a failed asylum seeker as a member of a particular social group or otherwise or for any other Convention grounds. 

12. The applicant also stated in his statutory declaration that he is Catholic, however, the applicant has not made any claims based on his religion and nothing arises on the facts that would suggest that there is a real chance he would face serious or significant harm now or in the reasonably foreseeable future on the basis of his religion if he were to return to Sri Lanka. 

13. Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm on this basis.

14. Considering the applicant’s circumstances individually and cumulatively along with the independent country information, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any Convention reason.  His fear of persecution is not well-founded. 

15. I have not accepted there to be a real chance that the applicant will face serious harm if he were to return to Sri Lanka.  I have accepted that he will be questioned on arrival at the airport and in his village; that he will be charged under Sri Lanka’s departure laws and would be bailed. In considering this in the context of the complementary protection criterion, I find that to the extent that there is a risk the applicant may suffer harm as a result of this process, s.36(2B)(c) qualifies that it is not taken to be a real risk as it is a risk faced by the population generally and not by the applicant personally. The reasoning in SZSPT v MIBP[3] suggests that the ‘faced personally’ element of the qualification in s.36(2B)(c) requires the individual to face a risk of differential treatment. On the basis of my findings that the applicant is of no interest to the authorities in Sri Lanka, I am satisfied that any risk he is likely to face is one that would be faced by the population generally.

    [3] [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].

16. I have found that the applicant will not face a real chance of serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future.  In MIAC v SZQRB [2013] FCAFC 33, the Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test in the assessment of ‘well-founded fear’.  While I have found that he will be charged and convicted under Sri Lanka’s departure laws, in addition to finding that there is taken not to be a real risk of significant harm for the reasons given immediately above, I do not find any harm he would suffer to amount to significant harm within the meaning of s.5(1) of the Act. I have also had regard to the Procedural Advice Manual. As I did not accept the applicant has experienced any other harm in the past, I do not accept the submissions from the applicant’s representative as establishing a basis for serious or significant harm. Having regard to the definition of significant harm, I do not find the harm I have accepted amounts to significant harm within the meaning of s.36(2A).

17. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

18. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. 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

20. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    George Haddad
    Senior Member

    
    

    ATTACHMENT

    RELEVANT LAW

21. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

    Refugee criterion

22. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

23. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

24. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

25. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

26. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

27. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

28. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

29. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

30. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

31. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

32. 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 a protection 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 the applicant 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’).

33. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

34. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

35. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.