1412001 (Refugee)

[2016] AATA 3241

1412001 (Refugee) [2016] AATA 3241 (1 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412001

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Sydelle Muling

DATE:1 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2016 at 6:09pm

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] July 2014.

3. On 17 December 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 January 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The Tribunal has taken into consideration the fact the applicant has not otherwise engaged with the Tribunal during the review (other than to obtain confirmation of his application for Medicare purposes). The Tribunal has received no submissions, no response to the hearing invitation or any request for an adjournment or any communication of any type from the applicant since the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. According to the protection visa application, the applicant is a citizen of  Sri Lanka who was born in [a] village, [City 1], in the western province of Sri Lanka on[date]. He lived at different addresses in[village], [City 1] from [date] to June 2012. The applicant completed [number] years of schooling and is fluent in Sinhalese and can speak a little English. The applicant worked as a self-employed fisherman from January 1998 to June 2012. He departed Sri Lanka illegally [in] June 2012. His wife, [children], mother, father and [sibling] are residing in Sri Lanka. He has a [sibling] living in Italy.

10. The applicant presented his claims in his protection visa application [in] December 2012 (folios 38 to 67 of Department [file]) and a Departmental interview he attended [in] January 2014  (folio 120 of Department [file]). The applicant provided a copy of the primary decision record to the Tribunal for the purpose of the review, and is taken to be on notice of its contents, reasons and findings.

11. The following is the statutory declaration made by the applicant attached to his protection visa application:

    Introduction - Citizenship

    1.     I am a Sri Lankan Citizen by birth. I have no other citizenships and I am not entitled to a citizenship nor have I right to residence in any other country.

    2.     I am an ethnic Sinhalese

    3.     I am Catholic and married.

    4.     My wife[and children] remain in Sri Lanka. I am very concerned for their safety.

    5.     My parents[and siblings] remains in Sri Lanka.

    6.     I was born on [date]

    7.     I was born in [a] village, [City 1] Western province Sri Lanka

    The country to which I fear returning Sri Lanka

    8.     Sri Lanka

    Why I left that country

    9.     My problems arose a few years ago [in] September 2010 when I was singled out by a guard of a Political [Mr A] of the Municipality of [City 1] Sri Lanka.

    10.  10 I was stabbed [on] this day with[an object]. The results left me in hospital for several days. (horrific scars on body)

    11.  I took and report the incident to the local Police in [City 1] seeking that the assailant be prosecuted. However, no action was taken against this person as he was working for the Politician [Mr A] who was a member of the Sri Lankan government party.

    12.  I believe this same assailant was murdering persons I hospital but was able to bribe the Police and officials to not be arrested or prosecuted.

    13.  I had to appear at the local court against this person for his actions and attacks on me. This took place in January 2011.

    14.  The case was resolved by a financial settlement to me of [amount] Rupees. The assailant did not receive any punishment of imprisonment for his offence.

    15.  This assailant made a further threat to me in March 2012 in our neighbourhood in [City 1].

    16.  I took the matter to the Police however, they did not do anything. I believe they did not do any investigation of the matter as the abuser had Political connections that negated any investigation.

    17.  I believe that I am a victim and a Sri Lankan citizen that has no formal State Protection given the mentioned incidents and facts in my experiences that led me to escape from there.

    18.  I could not leave at that time and sought funds from family and from savings.

    19.  During this time like now, I remained in fear for my life.

    20.  I then decided that I sought a place where I could live like a human free person. I then sought the assistance of a [smuggler]

    21.  I paid him [amount] Lakhs and he assisted me and placed me on a boat [in] June 2012 that arrived at [location] [in] June 2012, then transferred to [a detention centre] and finally to[another detention centre].

    22.  I received my Bridging Visa recently and arrived in [city] two weeks ago where I remain to the present time.

    What I fear may happen to me in Sri Lanka.

    23.  I fear that the Police, CID, EPDP will arrest and kill me on suspicion of my past and seek for me and take revenge against me.

    24.  I have heard that I will be killed by those groups if I return to Sri Lanka because of this mentioned situation.

    25.  This is due to my past, but also as I left the country illegally and have sought asylum in Australia,

    Who I think may harm/mistreat me in Sri Lanka and why.

    26.  I believe that the SL Police, CID, EPDP, and the SLA will harm and kill me if I return to Sri Lanka as they had sought me in relation to the mentioned incident.

    Do I think the authorities of that country can and will protect me and or my accompanying family members, where applicable, if I / we were to go back.

    27.  The authorities will not protect me even though I am Sinhalese

    28.  The police are all Sinhalese and as the assailant has connections with the Government Party no action against him will be instigated. They will not protect me.

    29.  The Government comprises the EPDP, SLA and other bodies who were previously and remain seeking me and against my family.

    Do I think that there is a place in that country where I could be safe.

    30.  I do not think that I will be safe in Sri Lanka because I am Sinhalese and my family was suspected of assisting me to escape from there due to the mentioned incidents.

    31.  I cannot relocate anywhere there given that I am being sought by the mentioned groups including Police, CID, INT SLA.

    32.  I truly believe that I do not have any formal safety or State Protection from the Police in Sri Lanka. This is due to the corrupt basis that the mentioned assailant is associated with a Politician in [City 1] who has connections to negate such protection for me.

    33.  I remain very scared and fearful for my life given this fact.

    34.  I plead for asylum for myself to offset this ongoing fear that remains with me to the present time.

    35.  I therefore seek asylum from the Australian Government to enable me to remain here and live safely. I have remained in a situation where my past traumatic incidents that have impacted on me have created grave fears for myself within Sri Lanka.

    36.  I cannot return as I fear the worst for my life from the mentioned groups associated with the Sri Lankan government.

    37.  I request asylum in Australia.

12. The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act 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 for the purpose of s.36(2)(aa) of the Migration Act.

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

14. The Tribunal accepts the applicant travelled to Australia by boat without a travel document but provided copies of several documents identifying his name and place of birth, including an untranslated copy of his birth certificate, the detail pages of his passport and marriage certificate. The Tribunal finds the applicant has provided consistent information regarding his identity and place of birth. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.  

15. The Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant claimed the essential and significant reason for not being able to return to his home village in [City 1] was due to his fear of a man named [Mr B], who worked as a bodyguard for a local [City 1] politician named[Mr A]. The applicant claimed he was stabbed [with] [an object] by [Mr B].

16. The Tribunal has serious concerns regarding the credibility of the applicant’s claims regarding the problems he had with [Mr B]. The Tribunal notes in the delegate’s decision, a copy of which he provided the Tribunal, reference was made to the applicant’s entry interview, where he made no mention at all of any problems with [Mr B] or any fear of harm from him or anyone else. Instead, it was stated that the applicant indicated he had no claims for protection other than he was poor and wanted to provide for his family. The applicant is reported as stating that his wife had had to go to work and that there are no other reasons for coming to Australia other than economic factors. The Tribunal has taken into consideration the applicant’s response to the question why he did not mention his fear of [Mr B] in his entry interview, that he began to tell the truth when he was in the community in Australia, though he was still scared on arrival due to [Mr B] and his gang. The Tribunal does not accept that this is an adequate explanation for his failure to raise any of the alleged problems he experienced in the past in Sri Lanka from [Mr B] or his fear of harm from [Mr B] as the motivation for his departure from Sri Lanka during this interview, and instead claimed the reason he left the country was economic reasons and no other.

17. In addition to the applicant’s failure to raise his fear of harm from [Mr B] in his entry interview, the Tribunal has taken into consideration the following deficiencies and inconsistencies in the applicant’s evidence which confirms the doubts it has in relation to the credibility of the applicant’s claims.

18. The Tribunal notes the applicant made no mention in his statutory declaration attached to his protection visa application, in which he outlined his claims in relation to [Mr B], that his wife was the reason [Mr B] attacked him. Instead, the applicant simply claimed that he was singled out by a guard of “Political”[Mr A]. The Tribunal is concerned that if the basis on which the applicant was allegedly attacked by [Mr B] was because he had been romantically pursuing the applicant’s wife and wanted him to divorce her and the applicant had refused, that the applicant would not have raised this prior to the interview with the delegate, in the statutory declaration outlining his claims. 

19. The Tribunal also notes the applicant claimed in his statutory declaration that after being stabbed by [Mr B] [in] September 2010, he went and reported this to the local police in [City 1] but not action was taken. Yet, according to the delegate’s decision, the applicant claimed he did not go to the police regarding this matter however the police came to him in the hospital and questioned him about this incident.

20. Further, despite the applicant’s claim in his statutory declaration that the police took no action when he allegedly went to the police and complained, he claimed in the same statutory declaration that he had to appear at the local court against this person for his actions and attack on him in January 2011, which the Tribunal finds is internally inconsistent.

21. More significantly, the Tribunal has had regard to the applicant’s evidence regarding a second incident involving [Mr B]. In his statutory declaration attached to his protection visa application, the applicant claimed that in March 2012 “the assailant” made a further threat to him in “our neighbourhood in [City 1]”. However, according to the delegate’s decision, the applicant’s evidence in relation to this second incident, which he claimed was in revenge for the case that was brought against him, was that in January 2011 [Mr B] picked him off the street in a van with a few of his men, took him to a beach and assaulted him and threatened him. The Tribunal finds that not only is there a discrepancy in the applicant’s evidence as to when [Mr B] allegedly took revenge against him but more significantly what actually transpired during this particular incident. The Tribunal finds the applicant’s evidence to the delegate substantially different in relation to the seriousness of the alleged treatment he received from [Mr B] (and his associates).

22. While the Tribunal accepts, on the basis of the medical evidence submitted by the applicant to the Department, that the applicant was injured [with] [an object] in September 2010, for the reasons discussed above, it does not accept that [Mr B] was responsible for this attack or that it had anything to do with [Mr B] having an interest in the applicant’s wife and wanting the applicant to divorce her and he refusing to do so.

23. The Tribunal does not accept the applicant’s vague claim that the police, CID and EPDP will arrest and kill him on suspicion of his past and take revenge against him. The Tribunal does not accept on all the available evidence, that the applicant has been of any adverse interest to the authorities, including the police and the CID, or the EPDP or that they have sought him in the past in relation to the “mentioned incident” as he claimed in his statutory declaration. Therefore, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, from the police, CID and/or the EPDP, for any reason, if he returns to the Sri Lanka.

24. The Tribunal has considered the applicant’s claim that he will face harm, including being killed, by the police, the CID and EPDP, not only because of his past, but also because he left the country illegally and sought asylum in Australia.

25. Firstly, in relation to the applicant’s illegal departure from the country, the Tribunal notes in the recent DFAT report dated 18 December 2015 it provides that people who departed Sri Lanka irregularly are questioned by police at the airport and are photographed. They are transported by police to the closest Magistrates court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then 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 may be held at a nearby prison.  DFAT was informed in July 2015 by Sri Lanka’s Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts can vary on a case-by-case basis and can be paid by instalments. Previous information provided by DFAT in their report on February 2015 was that fines ranged between 5000 and 50,000 Sri Lankan rupees ($40-$400AUD). If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Looking at the applicant’s particular circumstances, if there was any such requirement, he has his mother, father and[sibling], in addition to his wife, in Sri Lanka who can stand as guarantor for him and there is nothing to suggest that they would not do so. The DFAT information goes on to say that if bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. There is no general requirement to report to police or a police station between hearings. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers or people smuggling ventures.

1. The Tribunal does not accept on the evidence before it that the applicant would not be in a position to pay a fine which may be imposed on him, particularly given that he has family members in Sri Lanka who could financially assist him. In light of the provisions of the law and its application to this date, which suggests that imprisonment does not happen in practice, the Tribunal finds the chances of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote. It also does not accept on the evidence before it, including that cited in the delegate’s decision, that people who departed Sri Lanka illegally face a real chance of serious harm from the police, the CID or the EPDP or that family members of those who departed Sri Lanka face harm on the basis or suspicion of assisting them to leave the country illegally, as suggested by the applicant.

2. The Tribunal refers to the country information, including in the recent DFAT report, 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. The Tribunal finds that this law is a national law 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 (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the non-selective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

3. Based on the above, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future because he left Sri Lanka illegally.

4. Finally, in regard to the applicant’s claims regarding him seeking asylum in Australia, and the harm he may face as a result, the Tribunal has taken into consideration information from various sources including DFAT, other foreign governments and UNHCR regarding people returning to Sri Lanka as failed asylum seekers and the treatment that they may receive. The information suggests that returned asylum seekers are usually kept at the airport for some hours while their identity is checked and they may be questioned during this period and there is no further interest of persons without any adverse profile. The Tribunal has also had regard to the information provided by the applicant’s previous adviser to the Department in relation to persecution of non-Tamil returnees to Sri Lanka, particularly non-Tamils believed to support the Tamil Tigers.  While the Tribunal accepts that the applicant as a failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, taking into consideration his particular profile as a Sinhalese man from [City 1] who the Tribunal finds was of no interest to the authorities in the past, including in relation to any perceived or imputed support of the LTTE given he has not made such claims, the Tribunal finds that the applicant would be released without further interest and he would not face a real chance of persecution from the police, the authorities, the EPDP or anyone else as a failed asylum seeker.

5. The Tribunal notes the applicant’s previous adviser submitted information regarding the persecution of opponents of the government of Sri Lanka, referring to people who are perceived to oppose the government of Sri Lanka- whether by reason of their membership or support of opposition political parties, their advocacy of free speech and civil liberties or for other reasons. As the Tribunal has not accepted that the applicant was involved in an incident with a man named [Mr B], it follows that the Tribunal does not accept the applicant will have a perceived political opinion because [Mr B] was bodyguard for a Minister or for any other reason. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm as a perceived opponent of the Sri Lankan government or for reasons of an imputed political opinion of opposition to the government.

6. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by [Mr B] or people associated with [Mr B] or anyone else, including the police, CID or the EPDP, because of issues related to his wife. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka, because he sought asylum in Australia or an imputed political opinion. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

7. On the basis of the applicant’s claim to be a national of Sri Lanka and documentation submitted in support of his application, the Tribunal finds that Sri Lanka is the applicant’s receiving country for the purposes of s.36(2)(aa).

8. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), 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 as defined in subsection 36(2A) of the Act.

9. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, the Tribunal does not accept that the applicant was stabbed in the chest by [Mr B], a bodyguard for an MP, who was romantically involved with the applicant’s wife and whom the applicant refused his alleged request to divorce his wife. The Tribunal does not accept that the applicant was either threatened or assaulted by [Mr B] or people associated with him in revenge for the alleged subsequent case against him. Therefore, for the reasons outlined above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is real risk the applicant will suffer significant harm from [Mr B] or his associates or the police, the CID and/or EPDP because of these alleged past problems he had with [Mr B].

10. The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, given the country information suggests that any period of detention the applicant may face would be for a short term, the Tribunal does not accept that this would constitute significant harm. In regard to the penalty the applicant may face, based on the information cited above, the Tribunal does not accept that this will manifest itself in the mandatory imposition of a term of imprisonment or that the applicant would not be able to pay any fine that may be imposed on him as he would have the assistance of family members to meet such a financial penalty.

11. The Tribunal does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

12. The Tribunal is also not satisfied on the country information that there is a real risk the applicant will face significant harm on arrival in Sri Lanka as a person who has failed to obtain protection in Australia. As discussed above, the Tribunal accepts that the applicant as a failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, based on the country information and the Tribunal’s earlier reasoning, the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to.

13. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, 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. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

14. 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).

15. 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).

16. 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

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

    Sydelle Muling
    Member