1412110 (Refugee)

[2015] AATA 3756

1412110 (Refugee) [2015] AATA 3756 (25 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412110

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Nicole Burns

DATE:25 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2015 at 1:41pm

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] March 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 17 November 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.  She attended the hearing.

5. The issues in this case is whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention on return to Sri Lanka, 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.  An extract 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

   Background

7. The applicant is a [age] year old single male, of Sinhalese ethnicity, who was born in Batticaloa District in Sri Lanka’s eastern province and lived most of his life in [City 1], in the west of Sri Lanka. He worked as a fisherman and selling fish at market until he left the country in mid-2012.  His mother and [siblings] currently live in [City 1]. 

   Refugee assessment

8. The applicant claims to have been a United National Party (UNP) supporter in Sri Lanka and fears serious harm from Sri Lanka Freedom Party (SLFP) supporters on return, as has occurred in the past.  In addition to his fears on political opinion grounds, the applicant also claims to fear returning to Sri Lanka as a member of a particular social group of ‘returnee from a Western country’ and/or his status as a failed asylum seeker.  The Tribunal has also considered whether the applicant faces a real chance of persecution from the authorities on return to Sri Lanka because he departed Sri Lanka illegally.

   Political opinion grounds

9. The applicant described his involvement with the UNP in Sri Lanka at the Tribunal hearing, and problems that arose as a result.  He said about a month before the [City 1] Municipal council election – held [in] October 2011 – he helped a man called [Mr A] in his election campaign.  [Mr A] was his employer at the fish market where the applicant worked.  [Mr A], who ran on an UNP ticket, lost the election to a man called [Mr B], from the SLFP.  The applicant, who said he had never been involved in politics before, described his support to [Mr A]’s campaign in terms of putting up posters and ‘other work’.   He said one of his [siblings] also helped him put up posters. 

10. The applicant said supporters of [Mr B] would tear down their posters, and vice versa during the campaign and on one occasion he was attacked by two or three men who he thinks were [Mr B]’s supporters, prior to the election.  Specifically he said he was attacked around 2 or 3am, on his way to work at the market, at a junction five minutes bike ride from his home.  The men attacked him with batons then ran away.  The applicant said after the attack he returned home and went to hospital the following day, to have his injuries treated.  He then told [Mr A] what happened who told him to stay inside for some time.  The applicant said he did not tell the police about the attack, because the police are in the SLFP.  The applicant said he returned to work two days later. 

11. The applicant said his problems continued after the election in the form of receiving threatening phone calls (he claims he started receiving them before the election – but after the alleged assault – as well).  He said he received the calls on his mobile phone about three or four times until around three or four months after the election.  The callers did not identify themselves but the applicant said he thinks that they are from the next village, because he has no other enemies.  Apart from the caller purportedly telling the applicant that they would not allow him to live, the applicant was unable to recall what they said or the specific nature of the threats. He said he told [Mr A] about the calls who told him, once again, to stay in side and ‘cover himself’.  He did not change his SIM card, noting that it was the number [Mr A] used to reach him and that even if he did they could find out his new number.

12. Having regard to the applicant’s oral evidence as well as his written statement to the Department[1], the Tribunal does not accept his claims to have supported a UNP member in a municipal election in [City 1] in October 2011.  Nor does it accept that he was harassed, threatened or beaten by SLFP supporters as a result.  The Tribunal has reached this conclusion because of concerns about key aspects of the applicant’s evidence, as follows.

    [1] Dated [in] March 2013

13. First, the Tribunal found the applicant’s oral evidence about his alleged support to [Mr A]’s election campaign and the problems he encountered as a result was vague, general and lacking in detail in significant respects.  He described his support in terms of putting up posters and ‘other work’ but was unable to provide details or give examples of what that other work was.  Only after some probing did he indicate where the posters were placed, and then only on walls of houses in his village, near roads.  He was also vague about which political party [Mr B] belonged to, calling it the ‘Sri Lanka’ party.  Even taking into account his evidence that he was not politically active prior to helping out [Mr A]’s campaign – which he did only because he was his employer not for any particular allegiance to the UNP – and did not know anything about their policies for example (contrary to what was stated in his statutory declaration to the Department), the Tribunal would expect the applicant to at least know the name of the SLFP given his core claims to have been harassed, threatened and beaten by SLFP supporters in the past in Sri Lanka and to fear these supporters on return. 

14. Second, there are inconsistencies between the applicant’s oral evidence to the Tribunal and his written claims provided to the Department on this matter.  For example, in his written statement he states that he assisted [Mr A] in the [City 1] Municipal election by “arranging meetings, hanging party flags around meeting areas and handing out flyers”, whereas at the Tribunal hearing he only stated that he helped put up posters and was unable to explain what else he did, apart from saying in general terms that he spent a lot of time at [Mr A]’s house during that period and did whatever he asked.  He also states in his written statement that he knew [Mr A] because he lived in his village and supported his policies however at the Tribunal hearing the applicant said he had no idea about [Mr A]’s policies (or the UNP for that matter).  Further, at the Tribunal hearing the applicant said he received threatening phone calls before the election, and after the election (about three or four times).  However in his written statement he states that he was threatened once by a man from the SLFP.  As well, in his written statement the applicant said he could not return to his family home after the alleged assault and moved between friends and [Mr A]’s homes.  However at the Tribunal hearing he said he lived in the family home up until he departed Sri Lanka in mid-2012.   The Tribunal notes as well that the applicant states in his written statement to the Department that he was not harmed or threatened after the election [in] October 2011, however in his oral evidence he told the Tribunal that he received three or four threatening phone calls after the election. 

15. Third, the Tribunal found aspects of the applicant’s oral account of the alleged assault by SLFP supporters some time prior to the election to be implausible and other aspects inconsistent with his written statement provided to the Department, which casts doubt as to whether the incident occurred at all.  For example, in his written statement the applicant states that he recognised the four men from previous times when he had been with fellow UNP supporters hanging up UNP propaganda. However at the Tribunal hearing the applicant said he did not recognise any of the men, but speculated that they might have been [Mr B]’s supporters whom they had had arguments with earlier (about putting up posters).  He also states in the written statement that the men beat him with sticks and threatened him with a gun however in his oral evidence he said they used batons and made no mention of a gun.  The Tribunal notes further that in his oral evidence the applicant said immediately after the attack he went home and the following day went to hospital for treatment before visiting [Mr A] at his home to tell him what had happened. The applicant was unable to recall the name of the hospital, but said it was a rural hospital at the junction where the attack took place.  He said he received treatment at the hospital for a swollen hand and leg, which involved receiving tablets and having his leg plastered.  He said he then rode his bike to [Mr A]’s house.  The applicant did not mention going to hospital in his written statement, only that he went home and in the later hours of the morning went to [Mr A]’s house where he stayed for three days before going into hiding and moving regularly between friends’ homes.  The Tribunal also finds it implausible that the applicant would be able to ride his bicycle after having his leg plastered in hospital as claimed.    

16. The Tribunal notes that in her written submission the representative states that the applicant  instructs that he regularly has issues recollecting information.  At the end of the Tribunal hearing the applicant stated that he has been having a lot of stress and tension for a number of days and does not know what will happen to him.  The Tribunal accepts that the applicant may have been stressed at the Tribunal hearing, however even taking into account a degree of stress and his poor memory it found his oral evidence was vague and lacking in detail in significant respects, as discussed, and when combined with other concerns with his case as detailed above, has reached the conclusion that the applicant fabricated his core claims to support the UNP and fear serious harm from SLFP supporters/members.

17. For these reasons the Tribunal does not accept the applicant’s claims to have supported the UNP in the past in Sri Lanka and experienced harassment, threats and was assaulted by SLFP supporters as a result. Given this finding, and the applicant’s oral evidence that he has no interest in politics if he returns to Sri Lanka, the Tribunal finds he would not be politically active on return to Sri Lanka.  As such, the Tribunal finds there is no real chance that the applicant would be persecuted by SLFP supporters or anyone else on account of his political opinion or for any Convention reason on return to Sri Lanka now or in the reasonably foreseeable future. 

18. In reaching this conclusion the Tribunal has had regard to three letters the applicant provided to the Department in support of his case.  One dated [in] September 2009, purportedly from [name and position] UNP; another (undated) purportedly from [Mr A]; and the third untranslated letter in Sinhalese, purportedly from the Grama Niladhari’s (local government) office dated [in] February 2013.  At hearing the applicant explained that his wife obtained these letters from the UNP and the local government’s office in Sri Lanka in support of his case after he arrived in Australia.  He acknowledged when asked that he has never worked for or supported [name], despite such claims in the letter he provided. As such the Tribunal gives this letter no weight.  The Tribunal notes that the letter from [Mr A] is typed, not on letterhead, and the applicant acknowledged that [Mr A] had recounted in the letter what was told to him about the applicant’s circumstances.  For these reasons the Tribunal gives this letter no weight.  The letter from the Grama Niladhari is not translated however at hearing the interpreter indicated that the contents of the letter included confirming the applicant’s is a resident of a particular village, states that he was supporting the UNP, and was active in municipal council elections, and general elections and other local elections.  The interpreter said it was also stated that the applicant was a fisherman, had problems and can no longer carry out his fishing business.  The Tribunal has had regard to this letter purportedly from the local authorities in the applicant’s home area in support of his claims. However, the Tribunal is not satisfied that it overcomes the serious credibility concerns in this case as discussed and the Tribunal accordingly gives it little weight.

19. The Tribunal has also had regard to the representative’s written submission to the Tribunal in which she argues, among other things, that the applicant would be targeted for serious harm at the hands of SLFP members and supporters on return to Sri Lanka given his work in the past for the UNP, and given he has been subjected to harm and threats in the past.  She submits that the applicant instructs that his ongoing involvement with UNP was witnessed by many in the community and he fears harm upon return, in particular because he associated with a known politician which enhances his political profile.  The representative argues that it is plausible opposition parties would now want to target UNP supporters in order to assist their parties reclaim control in the future.  The representative refers to country information from a variety of sources to support her contention that members of opposition parties like the UNP have been attacked for holding opposing views; that gangs linked to politicians intimidate voters; and about the risks faced by opposition politicians participating in politics in Sri Lanka.  She submits further that, given the ongoing tension in Sri Lanka and the fact that it is a country in transition after long civil war, there is strong potential for politically motivated violence in the future.  Whilst that may be the case to some extent, for reasons above the Tribunal has not accepted the applicant’s claims to have been a UNP supporter in the past, nor harmed in the past on this basis, nor that he has any interest in being political active on return, and therefore finds he faces no real chance of being harmed on the basis of his support to the UNP on return to Sri Lanka in the foreseeable future.  

20. 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 opinion if he returns to Sri Lanka now or in the reasonably foreseeable future.   His fears of persecution in this regard are not well founded.

    Returnee from a Western country/failed asylum seeker

21. It is submitted that the applicant would be easily identified on return to Sri Lanka as a failed asylum seeker because he does not hold a passport and he fears being interrogated by the authorities upon his arrival and either killed or imprisoned indefinitely.  In her written submission to the Tribunal the representative refers to country information from a variety of sources that indicate (among other things), it is argued, that the Sri Lankan authorities will detain, and inhumanely treat failed asylum seekers indiscriminately regardless of their ethnicity, religion, age, health or political opinion.

22. The Tribunal accepts that the applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka and the Tribunal also accepts that he will not return to Sri Lanka voluntarily.

23. Australia’s Department of Foreign Affairs and Trade (DFAT) assesses that returnees to Sri Lanka are treated according to standard procedures, regardless of their race or religion.  DFAT also report that they are not subject to mistreatment during their processing at the airport[2].  Further, the UK Home Office reports that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[3]   It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.

    [2] DFAT Country Report Sri Lanka, 16 February 2015 at 5.26

    [3] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5

24. The Tribunal accepts that when the applicant returns to his home in [City 1], his arrival will be noted and he may be questioned by the Sri Lankan authorities.  However given the Tribunal’s findings above that he is not politically active or anti-government, it does not accept there to be a real chance that he will be targeted for harm by the Sri Lankan authorities in his home area on the basis that he is a returnee from a Western country, and someone who has sought asylum in Australia.

    Illegal departure

25. 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 the Tribunal 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.

26. 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 [City 1] 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 [City 1] 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 mother and [siblings] – all of whom work as [occupation] according to the applicant’s oral evidence to the Tribunal -  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. At the Tribunal hearing when asked if he has any fears on return to Sri Lanka on the basis of his illegal departure and/or as a failed asylum seeker the applicant replied “no”.  He told the Tribunal that he has nothing to say, except that no one will look after his mother if something happens to him. 

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.[4]  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 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, and the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

   [4] Freedom from Torture, 2012, ‘Sri Lankan Tamils tortured on return from UK’, 13 September. 

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 assessment

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. In her written submission to the Tribunal the representative submits that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he will suffer significant harm in the form arbitrary deprivation of life (noting discrimination against failed asylum seekers, particularly from the west, and ongoing mistreatment and serious acts of violence against supporters of political parties); and/or torture (from the authorities, notorious for torturing detainees/prisoners as punishment for breaking the law); and/or cruel and inhuman treatment or punishment (noting that the Sri Lankan authorities inflict severe pain and suffering (mental and physical) against detainees/prisoners); and/or degrading treatment or punishment.   

10. 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, his membership of a particular social group of ‘returnee from a Western country’, or the fact that he has sought asylum in Australia.  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.[5]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    [5] 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].

11. In terms of real risk of significant harm on return to Sri Lanka on account of his illegal departure from the country, 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. 

12. 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.  

13. 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

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.

    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.