1412797 (Refugee)

[2015] AATA 3665

1412797 (Refugee) [2015] AATA 3665 (10 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412797

COUNTRY OF REFERENCE:                  Ukraine

MEMBER:Christine Cody

DATE:10 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 November 2015 at 12:50pm

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. The applicant is a national of the Republic of Ukraine (“Ukraine”) who seeks to be granted a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied to the Department of Immigration for the visa [in] November 2013 and the delegate refused to grant the visa [in] June 2014. This is an application for review of that decision, and the relevant law is set out in Annexure A. The applicant was represented by his registered migration agent, [name and agency], in relation to his initial application to the Department, and in relation to the review.

2. For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ukraine, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.

   CLAIMS AND EVIDENCE

3. The applicant provided to the Department protection visa application forms and pages of his passport. The following background and claims are sourced from the documents provided by the applicant in November 2013:

   ·     The applicant was born in [a village in] Ukraine, in [year].

   ·     He speaks, reads and writes in Ukrainian and Russian. He has [number] years of education in the Ukraine, including school, and then [a college], where he completed studies as a [qualification] in [year].

   ·     He underwent national military service from [year] until [year].

   ·     From 1990 until 2003, he worked as a [occupation] at a [workplace] in Ukraine. From 2003 to 2008 he owned a business. From June 2008 until September 2013 he worked for [a company], in Ternopil.

   ·     In the last 10 years, he had resided at the same address in Ternopil.

   ·     He was married in 1994 in Ternopil. His son was born in [year] and is now aged [age] years. His wife, son, and [mother], remain in Ukraine. He is in contact with his relatives by phone.

   ·     He resided all of his life in the Ukraine. Prior to coming to Australia, he had taken holidays to [Country 1] (February/March 2011, and March 2013) and [Country 2] (May 2013).

   ·      He was an active member of the political party Batkivschgya. He was subjected to systematic mistreatment and persecution from the Ukrainian Law Enforcement agencies.

   ·     The results were fabricated in the 2010 presidential elections, and about a year later, the “elected” government started to persecute the party leader, Mrs Yulia Tymoshenko, who later was unfairly gaoled, leading to protests throughout the country. The applicant stayed at a tent camp in Kiev on a number of occasions to protest her imprisonment. When the police tried to destroy the tent camp, he was beaten by them.

   ·     Upon his return home, he was called to the local police station where he was asked a lot of questions about his participation in rallies to support Mrs Tymoshenko’s release from gaol.

   ·     Later he was asked to attend the local branch of the Ukrainian Security Service (SBU) where he was warned that he would have serious problems if he did not stop supporting Mrs Tymoshenko.

   ·     He left Ukraine legally [in] August 2013. He came to Australia as a visitor [in] September 2013. His passport had been issued [in] 2008, without any difficulties, and his visitor visa had been issued [in] August 2013.

   ·     The reason why he left Ukraine was because he feared persecution because of his political opinion. He fears for his liberty and possibly his life from the Ukrainian government and law enforcement agencies which use unlawful means to suppress opposition. The present government is trying to eliminate all real opposition and they are anti-Ukrainian, like a Russian colony with a puppet President and government.

   ·     He has not been charged with (or convicted of) any criminal offence.

4. According to his application form, he has no documentary evidence to support his claims.

   ·     When asked why he applied for a protection visa, he said he originally came to Australia for a [conference][1], and he had applied for a protection visa because he wanted to compare Australia and Ukraine. He wanted to stay bit longer and explore the possibilities in Australia. Australia has great opportunities for living as a normal person, and the climate is better than that in Ukraine.

   [1] This claim is supported by a Departmental note contained in the Departmental file.

   ·     He is from Ternopil in Western Ukraine. The Eurocentric Maidan movement began in Western Ukraine, and people from eastern Ukraine, where there is conflict, call Western Ukrainians Fascists and Banderites.

   ·     If there is a war, he may be conscripted into the army. Poroshenko is considering declaring a state of war in some provinces. In the previous week, the bodies of 10 soldiers killed in the fighting in the East were returned to Ternopil, and 14 to Lviv. The applicant is looking for a better life for his family.

   ·     His wife works as [occupation], his son attends university, and his [other child] is at school. In Australia, people who study have good prospects.

   ·     Concerning his support for Mrs Tymoshenko: he claimed that in 2011 he was in a private [business]; he attended meetings supporting her party, and sometimes he went to Kiev to demonstrate against her imprisonment. The first demonstration he attended was peaceful and uneventful, but that demonstration in November 2012 was filmed by Ukrainian authorities, and protesters were warned that criminal charges may be made against them. He went home to Ternopil and received telephone calls from other demonstrators saying they had been called by the authorities. He thought of leaving Ukraine at that time because the authorities investigated his business. He consequently closed his business and became [occupation] instead.

   ·     About six months after participating in a second demonstration in Kiev, he was summonsed to his local police station and asked by the police why he participated in the demonstration. Because it was peaceful, they did not charge him, but told him that if he participated in any more demonstrations, he would be questioned again.

   ·     When asked by the delegate if he had attended the SBU office, he said no, because the SBU probably talk to high profile supporters of Mrs Tymoshenko. The delegate put to the applicant that he had stated in his written claims that the local SBU had called him to their office and warned him not to involve himself in any more demonstrations. In response, the applicant said he never went to the SBU office, because an hour before he was scheduled to be there, he was phoned by them and told he didn’t have to go.

   ·     The delegate asked the applicant why he had not sought protection in [Country 1] in 2011 and March 2013, or [Country 2] in May 2013. The applicant responded that both countries had a lower standard of living than Australia; [Country 1] has only recently joined the European Union, and the standard of living in [Country 2] is deteriorating.

   ·     When the delegate asked the applicant whether he had any difficulties leaving or returning to Ukraine on any of these trips, and for his trip to Australia, he said no.

   ·     The delegate asked the applicant what he had to fear if he was to return to Ukraine, given that country information indicates that the government had now changed, with Mrs Tymoshenko having been released from prison and having contested the recent Presidential election, and that armed conflict is confined to the east of the country. The applicant’s response was that Ukraine is unstable. Today might be good, but tomorrow it might be different. Corruption is extreme here. He lives for his children and although he could probably still live in Ukraine, he wants his children to have a better way of life.

   The delegate’s decision record (provided to the Tribunal by the applicant)

5. The delegate provided reasons for the refusal of the application in the decision record. The delegate noted that the applicant acknowledged at the interview, in June 2014, that he no longer feared harm from the Ukrainian authorities because of his political activism supporting Mrs Tymoshenko, in light of country information that indicates that President Yanukovych has been deposed, Mrs Tymoshenko was released from prison and that she contested the May 2014 presidential election, albeit unsuccessfully.

6. The delegate had further reason for concern about the applicant’s claims, including that:

   ·     He had claimed in his written materials that he had been beaten by the police, however he made no mention of this at the interview.

   ·     He gave inconsistent evidence concerning whether he had been to the SBU office.

   ·     He did not seek protection in two European Union nations when he had the opportunity to do so.

7. The delegate did not accept that the applicant’s claims were credible. Concerning the applicant’s claim to fear harm from eastern Ukrainian separatists, the delegate noted that available country information indicated that the violent insurgency in the eastern provinces of Ukraine is not spreading to the west of the country. The delegate noted that the applicant admitted at interview that he could probably still live in Ukraine. The delegate considered that the essential and significant reason for his lodgement of a protection visa was in order to obtain permanent residence in Australia in order to improve the educational, employment and economic prospects of his family, and not because he has a real chance or risk of facing harm in Ukraine.

   The Tribunal

8. The applicant provided a copy of the application for review as well as a copy of the delegate’s decision record. He did not provide any further submissions or documents to the Tribunal.

9. On 19 October 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 4 November 2015. On 30 October 2015 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   FINDINGS AND REASONS

   Country of reference

10. The applicant produced to the Department a certified copy of his passport, and a copy of certain pages remain on the Departmental file. The Tribunal accepts that the applicant is a national of Ukraine, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Ukraine.

    Concerns about the applicant’s claims

11. The applicant claims to fear persecution and/or significant harm. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

12. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

13. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant will be persecuted within the meaning of the Convention if he returns to Ukraine in the reasonably foreseeable future. He declined to attend a Tribunal hearing at which he could have had the opportunity to provide necessary details of his claims, noting that he had been advised that the Tribunal had insufficient information before it to make a favorable decision on his behalf. He did not provide any submissions or further evidence for the Tribunal to consider, other than the delegate’s decision record.

14. In these circumstances, a number of relevant questions about his claims remain unanswered, and cause concern.

15. The applicant claimed that he went to a demonstration in November 2012 which was filmed by the authorities and thereafter the authorities investigated his business. He claimed that he then closed his business and became [occupation]. However, according to his application form, he closed his business in June 2008, and started working for [a company] in June 2008, some four years prior to the date of his claimed attendance at the demonstration (and he continued to work here until September 2013, when he travelled to Australia). The applicant has not satisfactorily explained this inconsistency, which undermines his claim that the closure of his business was related to the actions of the authorities.

16. The applicant claimed in his written documents that he had attended the local branch of the SBU where he was given a warning. However, as set out the delegate’s decision record provided to the Tribunal, at interview he told the delegate he did not attend the local branch of the SBU. When his written material was put to him, he changed his evidence to say that he had been invited to attend the SBU, but that he was told he didn’t have to attend. The Tribunal notes this is inconsistent with his written application form, where he claims that he did attend the SBU, and was given a warning. The applicant has not provided an explanation for this inconsistency to the Tribunal after it was raised by the delegate, as set out in the delegate’s decision record. The Tribunal considers that this undermines his claim that the SBU had any adverse interest in him, or summonsed him or warned him.

17. The Tribunal was also concerned that in his written materials he claimed to be beaten by police however, as set out in the delegate’s decision record, he did not make that claim at interview. The applicant did not offer to the Tribunal any explanation for this, and the Tribunal considers this omission is of concern.

18. The Tribunal notes that the applicant has held a passport since 2008, and has made a number of trips to and from Ukraine to Europe in the last few years (and since about 2012 when he claims he thought about leaving Ukraine). The applicant instead has taken holidays and has chosen to return to Ukraine after those holidays. The Tribunal considers that if the applicant faced difficulties or fear in Ukraine, he could have remained out of Ukraine and sought protection there, or equally he could have chosen at a later stage to travel to those countries to seek protection. The Tribunal has considered the applicant’s response to the delegate at interview, indicating that the reason why he did not apply for protection in these countries was because their standard of living was lesser. The Tribunal considers that if the applicant had a genuine fear of harm, he could have escaped to those countries, or remained in those countries, and his safety would have been the priority for him. The Tribunal considers that his responses do not indicate that he was a person in fear of persecution when he left the country, as claimed.

19. Further, the Tribunal was concerned by the applicant’s explanation as to why he came to Australia as given to the delegate and as set out the delegate’s decision record provided to the Tribunal. The Tribunal considers the applicant’s evidence to the delegate that he came to Australia because it has great opportunities and he wants to stay a bit longer and explore its possibilities, to be inconsistent with his written claim that he left Ukraine due to a fear of persecution. The Tribunal considers this undermines the applicant’s claim that he feared, and fears, persecution or significant harm in Ukraine.

20. The applicant claimed that he may face conscription. The Tribunal notes that he indicates he has previously undertaken his military service. Neither the applicant nor his agent provided any information to the Tribunal which would support his claim that he faces a real chance or real risk of being conscripted. The Tribunal notes that he is not required to do so, however on the evidence before it, it is not prepared to accept his assertion that he faces a real chance or real risk of being conscripted.

21. The Tribunal is prepared to accept the applicant’s nationality, that he is married with children in Ukraine, that he had his own business and then worked in a [certain workplace] prior to coming to Australia. It also accepts that he has travelled in and out of Ukraine as claimed.

22. On the evidence before it, however, the Tribunal is not satisfied that the rest of is background or claims are true. The Tribunal is not satisfied that the applicant has suffered any past harm or adverse interest in Ukraine as claimed.

23. The Tribunal is not satisfied that the applicant has demonstrated his political opinion in the past in Ukraine, nor that he has any intention of doing so if he returns to Ukraine. The Tribunal is not satisfied that he attended any demonstrations; that he was filmed; that he received phone calls from other demonstrators; that the authorities investigated his business which was the reason he closed his business and became [occupation]; that he was summonsed to his local police station or the SBU or by any other authority; that he was issued with warnings, or beaten; that there is any reason to consider that he may face criminal charges; or that he was of any adverse interest to any authorities or groups or people in Ukraine, either before he left, nor since he left Ukraine, or that he will be upon return.

24. The applicant has claimed that he faces harm as a result of the security situation in Ukraine, including by eastern Ukrainian separatists or various authorities.  As noted by the applicant in the interview, the conflict in Ukraine is occurring in the East; the applicant comes from the West[2]. The Tribunal considers that he will return to Ternopil in the west. On the evidence before it, although the Tribunal is prepared to accept that he, like many Ukrainians, other than in the east (and south), supports integration with Europe as opposed to Russia[3], the Tribunal does not accept that he has ever taken any steps to publicly or actively convey his political opinion, nor that there is a real chance or real risk that he will do so in the future (because he has no desire to do so, not for reason of fear). The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will attend any political activity or protests or convey any pro-European view in any way that would lead to a real chance or a real risk of any harm, taking into account the country situation as set out below.

    [2] As set out in the delegate’s decision record.

    [3] Ukraine has been torn between the east and west since the collapse of the Soviet Union in 1991. Ukrainian is the main language in western regions, where there is also a long-standing aspiration for integration with Europe. However, Russian is predominant in parts of the east and south: BBC “Ukraine crisis in maps” 18 February 2015.

1. The Tribunal notes, as set out in the delegate’s decision record, that the country conditions have changed since the applicant left Ukraine and since he lodged his protection visa application. The applicant did not provide any country information to the Department or the Tribunal, other than the country information contained in the delegate’s decision record, and the assertions he made. The Tribunal has considered his assertions, the country information in the delegate’s decision record, as well as country information it has accessed, discussed further below. For the reasons set out below, the Tribunal is not satisfied that as claimed, Ukraine is unstable and things may be different tomorrow, such that the applicant faces a real chance of serious harm or a real risk of significant harm.

2. The delegate’s decision record, dated [in] June 2014, provided to the Tribunal by the applicant contained relevant country information summarised as follows:

   ·     President Viktor Yanukovych, who was elected in 2010, refused to sign a political association and free trade agreement with the European Union, opting instead for closer ties with Russia in November 2013. The consequent occupation of Independence Square in Kiev, often referred to simply as Maidan (“the Square”), by pro-European demonstrators, resulted in several unsuccessful attempts by the Yanukovych government to use force to clear the Square, culminating in 88 people being killed in a 48 hour period from 18 February 2014. On 22 February [2014], Yanukovych fled Kiev… An arrest warrant was issued for him thereafter.

   ·     Crimea seceded from Ukraine in March 2014 after Russian military intervention, and pro-Russian paramilitaries seized various public buildings in towns in eastern Ukrainian provinces of Donetsk and Luhansk in April 2014 which has subsequently escalated into an ongoing secessionist insurgency in the region supported by Russian-armed foreign fighters. 

   ·     Mrs Tymoshenko was appointed Prime Minister of Ukraine in December 2007. She was defeated by Viktor Yanukovych in the Presidential election of February 2010. She was subsequently sentenced to 7 years in prison in October 2010 on abuse-of-office charges. She was released from prison in February 2014 and immediately declared that she would contest the May 2014 election.

   ·     The pro-Euro Maidan candidate Piotr Poroshenko however was declared winner of the 25 May 2014 presidential election. Mrs Tymoshenko received 13% of the vote.

   ·     Available country information does not indicate that the violent insurgency in eastern provinces of Ukraine have shown signs of spreading to the west of the country. The Organisation for Security and Cooperation in Europe (OSCE) Special Monitoring mission to Ukraine reported on 5 June 2014 that while the situation in Donetsk and Luhansk continued to be volatile, the situation in Kiev, Chernivtsi, Ivano-Frankivsk, Odessa and Lviv remained calm[4].

   [4] The information is obtained from various sources from the Associated Press, BBC, the Economist, Freedom House, Jamestown Foundation, Voice of America, Sydney Morning Herald, Reuters, Bloomberg, AFP, and the Independent (United Kingdom), the Guardian, Russian news agencies, and OSCE (it is recorded at pages 8-10 of the delegate's decision record provided to the Tribunal by the applicant).

3. The Tribunal has also considered more updated country information. The Tribunal notes that people who had been protesting when President Yanukovych was in power were now in positions of power themselves, participating in the government and anti-corruption campaigns, campaigning for the local elections[5].

   [5] “Ukraine – Euromaidan’s heroes run for Parliament in bid for reform, which refers to the country’s young reformers, a group of 20-and 30-somethings who emerged from the Euromaidan protest movement that ousted Kremlin-favoured President Yanukovych, one of whom heads the Anti-Corruption Action Centre in Kiev. They are running for the October 26 local elections, part of a political trend where parties have included the heroes of Maidan on their tickets in order to tap into Ukrainian voters’ new found patriotism. The political parties’ candidate lists read as a who’s who of the Euromaidan revolution, with anti-corruption activists, war heroes and investigative journalists featuring in campaign commercials around the country.” Aljazeera 19 October 2014. CX1B9ECAB6258.

4. The Tribunal has also considered a recent report from the Office of the United Nations High Commissioner for Human Rights (OHCHR), the organisation that has undertaken monitoring of the human rights situation. The report[6] did not refer to any casualties other than in the East, and did not suggest that a person such as the applicant living in Ternopil faces a real chance of serious harm or a real risk of significant harm from general violence (for example as a bystander to protests or rallies) or for any imputed pro-European political opinion or otherwise.

   [6] Office of the United Nations High Commissioner for Human Rights Report on the human rights situation in Ukraine 16 May to 15 August 2015 >

   Thus, although the conflict in the east continues, the Tribunal considers that the current country information available to it does not indicate that there was a real chance or real risk of harm to a person who was not in the conflict-affected eastern area. Further, the Tribunal considers there is no credible evidence before it that people of his political opinion (pro-European) face a real chance of serious harm or a real risk of significant harm (in Ternopil), nor that the President is considering declaring a state of war in his area.

5. The applicant also claimed that people from the west call people from the east names such as fascists and Banderites[7]. The applicant has not explained to the Tribunal whether he has been called such names in the past and if so, the effect this had on him, the effect he believes that being called such names would have on him now, and why he believes that he faces a real chance or real risk of being called such names. In the circumstances, the Tribunal is not satisfied that the applicant faces a real chance or real risk of being called names.

   [7] As set out in the delegate's decision record provided to the Tribunal, at page 7, this is a reference to Stepan Bandera, a Ukrainian nationalist viewed by detractors as an anti-Semite and a collaborator with the German invaders in World War II.

6. The applicant claimed that the circumstances in Ukraine is corrupt, however he did not provide to the Tribunal any evidence about how he has been affected by this in the past (other than impliedly in relation to claims the Tribunal does not accept), nor about how he believes he would face a real chance of serious harm or a real risk of significant harm in the future for this reason. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of corruption.

7. The Tribunal is not satisfied on the evidence before it that the applicant’s family have suffered harm or face harm in any manner which could lead to the applicant suffering a real chance of serious harm or a real risk of significant harm.

8. The Tribunal is not satisfied on the evidence before it that the applicant (or his family) face a real chance of serious harm or a real risk of significant harm due to the general security situation, nor is it satisfied that he faces a real chance or real risk of harm because, like so many in the west of Ukraine, he supports a pro-European and anti-Russian Ukraine. The Tribunal is not satisfied that there is anything in his profile which means that, on the evidence before it, he would be imputed with a political opinion which could lead to a real chance or real risk of harm.

9. There is no credible evidence before the Tribunal to suggest that the applicant (or his family) faces a real chance of serious harm or real risk of significant harm based on the climate, or other conditions, in Ukraine.

10. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future, or a real risk of significant harm upon return to Ukraine and thereafter.

11. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible concerning his background, past harm, or future harm feared, and other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him in the reasonably foreseeable future.

12. 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 criteria set out in s.36(2)(a).

    Complementary protection criteria                   

13. 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). As discussed above there remain many questions unanswered, and inconsistencies, in relation to the applicant's claims. Insufficient detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied that the applicant has suffered harm in the past, nor is it satisfied on the evidence before it that he faces a real risk of significant harm in Ukraine if returned there.

14. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Ukraine, there is a real risk that he will suffer significant harm for the purposes of 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 (Class XA) visa.

    Christine Cody
    Member

    
    

    ANNEXURE A - RELEVANT LAW

17. 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.

    Refugee criterion

18. 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).

19. 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.

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

21. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

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

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

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

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

    Complementary protection criterion

26. 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’).

27. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

28. 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 and the Tribunal has done so.