1406549 (Refugee)

[2015] AATA 3974

1406549 (Refugee) [2015] AATA 3974 (2 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406549

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:2 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2015 at 12:45pm

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] December 2012 and the delegate refused to grant the visa [in] March 2014.

3. The applicant appeared before the Tribunal on 22 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

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

5. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.  A summary of the relevant law is attached. 

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is [age] year old Sinhalese male from [Puttalum] district, North West Province in Sri Lanka.  He has a wife and daughter who remain in [the district], as well as a brother and sister.  His mother lives and works in [another country].  His father died in 1995.  The applicant worked as an [occupation] in Sri Lanka.  He travelled to Australia by boat in June 2012.

8. The applicant provided copies of his Sri Lankan passport and driver’s license to the Department.  On this basis the Tribunal is satisfied that the applicant is a national of Sri Lanka of Sinhalese ethnicity and has assessed his claims against Sri Lanka as his country of nationality. 

   Refugee assessment

   Political opinion grounds

9. The applicant claims to fear harm if returned to Sri Lanka on the basis of his political opinion.  Specifically he fears persecution on return from members of the People’s Alliance (PA) because of his involvement in the past with the United National Party (UNP).   

10. The applicant has claimed a number of incidences of past harm and threats received when he was in Sri Lanka due to his involvement with the UNP which precipitated his departure from the country in mid-2012.  He claims that his family members have continued to receive threats from PA supporters since he has come to Australia.  However, for the following reasons the Tribunal does not accept the applicant’s claims that he was threatened and harmed by PA supporters or anyone else because of his membership and support to the UNP in the past in Sri Lanka or that his family members were threatened.  In making this assessment the Tribunal considers the applicant’s evidence on key events relevant to his claims was vague and lacking in details at times, and that it contains significant internal inconsistencies.

11. First the Tribunal has doubts that the applicant was a UNP member for the following reasons.  The applicant demonstrated some basic knowledge about the UNP during the Tribunal hearing, including knowing the party leader and symbol, however it was limited and not particularly sophisticated.  For example, when asked if he was attracted to any particular UNP policies, the applicant replied that the party helps a lot of common people.  When asked to be more specific, the applicant said the UNP provided water and electricity to his village.  Further, the Tribunal found his oral evidence about his reasons for joining the party unpersuasive.  He told the Tribunal that he joined the UNP in 2006 because he was saddened by his father’s death (in 1995), his mother had left him and his siblings and they were all alone and had no protection.  When asked why he waited more than 10 years after his father’s death to join the party, the applicant said because he only became aware at that time that his father had been beaten and humiliated by PA supporters around 1995, which led to his suicide.  He did not indicate how he became aware of that fact and the Tribunal does not find this explanation persuasive, particularly given it is at odds with his claims set out in his written statement that his father was beaten and undressed by PA supporters in public.  Further, the applicant’s claim about joining the UNP in 2006 is inconsistent with information contained in a letter he provided to the Tribunal purportedly from a local UNP MP,[1] who states, among other things, that the applicant was an active member and worked in the election of the UNP with him in 2001 and till 2011 [Tribunal emphasis].  

    [1] [Source deleted.]

12. Second, the Tribunal found the applicant was vague about the specific details of the election campaigns he purportedly supported in the past which casts doubt as to whether he was involved with them at all.  For instance initially he told the Tribunal that he left Sri Lanka because during the 2011 parliament election there were a lot of problems, and specifically he experienced problems during the Pradesiya Sabha (local) election.  He was unable to provide any specific details. However later in the hearing he said he helped a candidate [during] the elections he thought were in January 2010 and a candidate [in] [an] election, which he thought took place around 2009.  He said he started campaigning one or one and a half months prior to both elections, organising meetings for the candidates when they visited his village and putting up decorations.  He was unable to provide further detail or context about these elections.  The Tribunal also notes that the applicant said he helped campaigning during the parliamentary election in 2010, which he thought was in January of that year; however the parliamentary election took place in April 2010 (when the applicant was working in [Country 1]).  The elections that took place in January 2010 in Sri Lanka were the presidential elections.[2] 

    [2] International Foundation for Electoral Systems 2010, ‘Election Profile: Sri Lanka – Presidential 2010 – Results’, IFES website

13. Third, there is a significant discrepancy between the applicant’s written statement and oral evidence about how many times he was allegedly seriously harmed by PA supporters as a result of his support to the UNP.  That is, in his statement to the Department the applicant states that he was beaten by members of the PA “four or five times” since he joined the UNP in 2006.  He states the last time he was assaulted was in 2010 during the election (he does not indicate which one) when he was attacked by five to six people in town and [was injured] as a result.  He states that he was too afraid to go to hospital but went to the local GP for treatment.  However at the Tribunal hearing although the applicant initially said that he was beaten four or five times by PA supporters from 2006, when asked to detail each occurrence he was only able to recount being beaten three times, as follows:

    ·He was attacked by PA members/supporters whilst getting off a bus on one occasion. He said he tried to run away and fell and injured his nose and head.  He said he did not go to the hospital or report the incident to the police, out of fear.  The applicant could not remember when this incident occurred but said when pressed that it took place prior to the December 2009 incident detailed below.

    ·In December 2009 or around 2010 PA members/supporters beat him when he was coming home from work one day; he was unable to walk for the next two days; he sought some private medical treatment because he was too scared to go to (public) medical services; and he was also too scared to report the incident to the police because the PA was in power at that time.

    ·[In] February 2010 he was beaten and threatened by PA members in town and [was injured] as a result.  He did not report the attack to the police or go to hospital.  When asked who his attackers were the applicant said they were “henchmen” of a PA Member of Parliament in Puttalam [district], a provincial council member and also a member of the PA. 

14. The Tribunal notes further that at the hearing when asked if the last attack – in February 2010 – occurred before or after the parliamentary elections (in January 2010) the applicant said “prior”, then added that he was not sure.

15. The Tribunal has also had regard to a letter dated [in] November 2012 provided by the applicant to the Department purportedly from [a member], UNP[3] and a letter of the same date purporting to be from [Mr A] Member of Local Government, [UNP].  It is stated (in both letters, which are worded identically) that the applicant worked for the UNP four years prior – i.e. from 2008 – which is inconsistent to his claims to have joined the UNP in 2006.  When this discrepancy was discussed at the hearing, the applicant said he joined the UNP in 2006 but was not involved until 2008.  Nonetheless he said he had a connection with [Mr A] “from the beginning” and indicated that this has been clarified in another letter provided by [Mr A], which he subsequently submitted to the Tribunal.  However, as mentioned this letter states that the applicant worked with [Mr A] in 2001 till 2011, which only adds to the confusion and casts further doubt about the veracity of the applicant’s claims in this respect.  For these reasons, the Tribunal gives the letters from [the members] little weight.

    [3] Dated [in] November 2012

16. The applicant’s vagueness about key events, limited knowledge about the UNP, and inconsistent evidence at times about claims of past harm lead the Tribunal to doubt his claims that he was an active UNP member and harmed by opposition supporters as a result in the past in Sri Lanka.  For these reasons the Tribunal does not accept that the applicant was a UNP member, does not accept that he supported UNP candidates in [an] election in 2009 or parliamentary elections in 2010.  The Tribunal also does not accept that the applicant was attacked by PA supporters or anyone else in the past in Sri Lanka because of his political opinion or for any other reason.  Specifically it does not accept his claims that he was attacked whilst getting off a bus, whilst coming home from work sometime in December 2009 or 2010, or [in] February 2010 whilst in town.  It follows that the Tribunal also does not accept the applicant’s claims to have received verbal threats from PA supporters or members during these incidences or was verbally abused and threatened by PA supporters shortly after he joined the UNP (in 2006) whilst coming home from the shops one day; or at his work place one time; or two or three times by PA supporters who came to his house and threatened him; or that he left his job as a result; or that he would leave home early and return late at night as a result, as claimed in his oral evidence to the Tribunal. 

17. In his oral evidence to the Tribunal the applicant said a UNP MP [organised] work for him in [Country 1] (as an [occupation]) following his alleged attack by PA supporters in February 2010.  He said he returned to Sri Lanka in April 2011 because the situation was not that bad and he was not expecting anything to happen.  However, although he was not politically active on return, he claims that PA supporters came to his house on a number of occasions when he was not home looking for him, and about two or three months before he departed Sri Lanka they threatened to kill him if he stayed in the village. The applicant said he often stayed away from home (sleeping at the empty houses he undertook [work] in) after he returned from [Country 1] because of these threats and for the two to three weeks prior to his departure from Sri Lanka he did not return home at all.  The applicant told the Tribunal the last time he received threats from the PA whilst in Sri Lanka was two or three months before he left the country.  The Tribunal is of the view that if the applicant genuinely feared serious harm from PA supporters in Sri Lanka he would not have returned from [Country 1] at that time.  Furthermore, given the Tribunal’s finding that the applicant was not a UNP member, and was not attacked in the past by PA supporters or verbally threatened, it follows that the Tribunal does not accept that he was of any interest to PA supporters on return from [Country 1].  The Tribunal does not accept the applicant’s claims to have received threats from PA supporters on return from [Country 1] in April 2011 until two or three months prior to departing the country in June 2012.

18. The applicant also claims that the threats from PA supporters have continued since he came to Australia.  At the hearing he said they visited his house two or three times since he departed Sri Lanka and as recently as two days prior to the hearing.  They purportedly told his wife that the political situation was very ‘hot’ and to tell the applicant not to return and if he does they will kill him.  After the hearing the applicant provided an affidavit from his wife[4] who states, among other things, that [in] July 2015 a group of people visited her house and asked for her husband; she replied that he was still in Australia; they then threatened her and told her if her husband returns they will not let him live; that of the four people in the group she identified one person from her village; that her sister-in-law (i.e. the applicant’s sister who was visiting at the time) called her husband who said there was no point in making a complaint to the police due to the “current election situation police will not take care of this complaint”; and that she did not go to the police but they live in fear. The applicant also provided an affidavit from his sister of the same date who describes the same incident.  In it the applicant’s sister also states that the “unidentified people” who were looking for her brother “went back by a van” and that her sister-in-law (i.e. the applicant’s wife) identified one of them from the village who supports the PA. 

    [4] Dated [in] August 2015

19. For reasons set out above the Tribunal does not accept that the applicant was a member of the UNP, or that he campaigned for candidates in the [elections] in 2009 or the parliamentary elections in 2010 as claimed.  The Tribunal also does not accept the applicant’s claims to have been attacked and beaten by PA supporters in the past or to have received threats because of his involvement with the UNP or for any other reason. Further, the Tribunal does not accept that his wife has received threats from PA supporters a number of times since his arrival in Australia, including the incident [in] July 2015.  The Tribunal has had regard to the affidavits provided by the applicant’s wife and sister to support his claims in this respect; however given these findings it gives them no weight.

20. At the hearing the applicant said that the political environment in Sri Lanka is ‘dangerous’ at the moment, given the political uncertainty in the lead up the parliamentary elections scheduled for 17 August 2015 (now passed).  He said also that it is a combined government, not a real government with the president from one party and the prime minister from another, and with the election coming up it is hard to say what will happen.  When asked why he would be still considered a threat by members of political parties opposed to the UNP if he returned to Sri Lanka now, the applicant said because his father was respected in their village – even though he was not involved in politics – and he receives the same respect and was involved in politics. They think if he returns home he will become politically active and it will be a problem for them.  The Tribunal has had regard to the applicant’s assertions about what he fears may happen to him on return to Sri Lanka.  However, given the Tribunal’s findings that the applicant was not a member of the UNP in the past in Sri Lanka and did not experience serious harm or threats from opposition supporters’ as a result of his involvement with the party or for any other reason, the Tribunal finds that the chance of the applicant becoming politically active and facing serious harm from opposition supporters as a result on return to Sri Lanka is remote.  Further, whilst the Tribunal is willing to accept that the applicant’s father may have been well respected in their village, on the applicant’s own evidence he was not politically active and therefore the Tribunal finds the chance the applicant would be seriously harmed on return to Sri Lanka on the basis of his father being well-respected in his village to be remote. 

21. The Tribunal accepts the applicant’s claims that his father committed suicide about two months after he was beaten by PA supporters in his home village because he refused to join their party.  In his statutory declaration to the Department the applicant states that after his father refused to join the party, he was taken to town, undressed and beaten very badly.  He never fully recovered from this incident and about one or two months later committed [suicide].  However for the reasons above the Tribunal does not accept the applicant’s claims to have ever been threatened or harmed by PA supporters in the past in Sri Lanka for reasons related to his father, or his alleged involvement with the UNP, and therefore finds the chance of the applicant being seriously harmed by PA supporters on return to Sri Lanka because of this incident in which his father was beaten and humiliated by PA supporters almost 20 years ago to be remote. 

22. For the reasons set out above the Tribunal finds that the applicant does not face a real chance of persecution on account of his political opionoin if he returns to Sri Lanka now or in the reasonably foreseeable future.   His fears of persecution in this regard are not well founded.

    Illegal departure

23. The Tribunal has considered whether the applicant will face a real chance of serious harm as a result of his illegal departure from the country, if returned to Sri Lanka. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act.  As the Tribunal put to the applicant in the hearing, this is a law of general application and applies to everyone who breaches it and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face on return to Sri Lanka is prosecution under a law of general application and not persecution within the meaning of the Convention.

24. The Tribunal accepts on the basis of the information before it, including DFAT Country Information Report on Sri Lanka dated 16 February 2015, which it discussed with the applicant at the hearing, that as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport.

1. The information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes that the applicant has his wife, brother and sister in Sri Lanka and there is nothing to suggest that they cannot stand as guarantor for him. The Tribunal therefore does not accept that the treatment the applicant may face on his return to Sri Lanka as a result of his illegal departure from the country, either on arrival at the airport, whilst on remand awaiting a bail hearing or when he appears later before the court, constitutes serious harm amounting to persecution. 

2. The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act.  As discussed with the applicant at the hearing, the Tribunal notes that DFAT reports that it has been informed by Sri Lanka’s Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between LKR 5000 and 50,000. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

3. The applicant said if the PA is in power when he returns there is a concern he will end up in prison for some time.  He is also concerned that if he gets through the airport he will not be able to live peacefully afterwards.  The Tribunal notes the applicant’s concerns in this respect however for reasons set out above it has found that the applicant is of no adverse interest to PA supporters and that there is nothing to indicate that the applicant is of adverse interest to the Sri Lankan authorities, or would be in the future, either on arrival or when he returns to his home village.

4. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system.[5]  However, given what the Tribunal accepts of the applicant’s profile, the Tribunal finds the chances that the applicant will be targeted and harmed for any reason in the context of a very brief stay in remand pending bail remote. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand, the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

   [5] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September.  That report records on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”.

5. For these reasons, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees – such as the applicant - who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

   Conclusion – Refugee grounds

6. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

7. 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).

   Complementary protection grounds

8. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).

9. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his political opinion. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[6]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm on the basis of his political opinion as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

   [6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

10. For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  In view of the DFAT advice cited above, the Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other types of significant harm as set out in s.36(2A) of the Act, either during his questioning at the airport or during any period he spends on remand.  The Tribunal has found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine of between LKR 5,000 and 50,000.  The Tribunal does not accept that the applicant will be unable to pay such a fine if it is imposed upon him, given he has family members in Sri Lanka.  Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing. 

11. The Tribunal has accepted that prison conditions in Sri Lanka are generally poor and notes the discussion of prison conditions in the relevant PAM3 provisions.  Whilst the applicant may be placed in overcrowded and poor prison conditions for a short period of time, the Tribunal does not accept that the authorities are intentionally seeking to harm him by placing him in these conditions for the short period he would be detained.  The Tribunal does not consider the applicant, a person of no adverse profile and no interest to the authorities, would face a real risk of significant harm while on remand as a result of these conditions.  

12. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSION

13. 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).

14. 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).

15. 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

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

    Nicole Burns
    Member

    
    

    Attachment – Summary of Relevant Law

    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.

    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).

    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.

    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’).

    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.