1413656 (Refugee)

[2015] AATA 3763

1413656 (Refugee) [2015] AATA 3763 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413656

COUNTRY OF REFERENCE:                  China

MEMBER:Suhad Kamand

DATE:1 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2015 at 11:49am

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 [in] July 2014 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant, a national of the People’s Republic of China (China), arrived in Australia [in] September 2007. She first lodged an application for Australia’s protection [in] January 2008. The delegate refused to grant that visa and that decision was affirmed by the Tribunal, differently constituted, on 10 December 2008. The applicant’s Bridging visa ceased [in] January 2009 and the applicant remained unlawfully in Australia until she was located by a Department Compliance field team [in] November 2013 and detained for several days[1].

   [1] noted in section 2 and 3 of the department's decision, a copy of which the applicant provided to the tribunal and is at folios 1to 8 of tribunal file 1413656

3. [In] November 2013 the applicant lodged a second application for a protection visa, an application which was accepted as valid as a result of the Federal Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215. The delegate refused to grant the visa [in] July 2014 and on 8 August 2014 the applicant sought this Tribunal’s review of the delegate's decision.

4. The Applicant was represented in respect of the review by her registered migration agent (RMA), [name].

   Department’s decision

5. A copy of the delegate’s decision record, dated [in] July 2014, was provided to the Tribunal by the review applicant. In that decision the delegate made findings in respect of the Refugees Convention and Complementary Protection.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. As noted, the Applicant in the present case previously made an application for a protection visa in 2008 which was assessed under s.36(2)(a).  The application was refused and the Tribunal subsequently affirmed the decision.

9. The effect of the Full Federal Court's decision in SGGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 is to confine the bar on making a further application for a protection visa contained in s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. The court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. On 18 November 2015 the Federal Circuit Court made a further decision (SZVCH) to the effect that, where, in cases such as the present, an applicant has made a valid application pursuant to SZGIZ, a delegate of the department is under no duty to consider the refugee criterion, but may elect to do so. In such cases, the delegate makes a valid decision and the Tribunal comes under a duty to review that decision in its entirety.

10. During the hearing of the current matter, conducted on 12 November 2015, the Tribunal communicated to the applicant that, pursuant to SZGIZ, it would confine its consideration of her claims to whether she satisfies the complementary protection criteria in ss.36(2)(aa) and (c). However, in light of SZVCH, the Tribunal considers the preferable and correct approach is to assess the applicant’s claims under both the refugee criterion and complementary protection.

11. During the course of applicant’s appearance before the Tribunal on 12 November 2015, the Tribunal asked the applicant on multiple occasions to identify all types of harm she fears in China and to detail any reason for which she may be harmed.  The Tribunal asked the applicant about the fears she claimed to have had in her original protection visa application lodged in 2008, and explored with her whether she still has fears of harm in China in connection with her Christianity and any other reason. Early in the hearing the Tribunal put to her that, while it has read her claims and listened to her department interview, it would like her to explain, in her own words, all the reasons she is afraid to return to China and what she fears may happen. The Tribunal impressed on the applicant, throughout the hearing, to identify all and any reason she fears returning to China. The Tribunal is satisfied that the applicant has had a meaningful opportunity to articulate all of the reasons she claims to fear harm in China in the reasonably foreseeable future and that she did not withhold any claims or evidence on the basis of the Tribunal’s comments on 12 January 2015 that it would confine its consideration to her eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the current case is whether the applicant is a person in respect of whom Australia has protection obligations. Relevant law is set out in Annexure 1.

13. In summary, the claims made and arising on the evidence are that the applicant faces a real chance of serious and/or significant harm in China in connection with the following, including cumulatively: her intention to seek the return or her land and/or pursue compensation in respect of her land which was expropriated in 2004; a debt she owes in respect of money borrowed to pay for her [child] to marry an Australian national.

14. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant, the material referred to in the delegates’ decision records and the decision record of the previously-constituted Tribunal together with other material available to it from a range of sources. The applicant also provided the Tribunal with a copy of the delegate’s reasons for refusal of the visa application lodged [in] November 2013, that decision record setting out the detail of the applicant’s immigration history and claims for Australia’s protection over time.

15. The Tribunal is mindful of the delegate’s note, contained in the decision record dated [in] July 2014, that the applicant had made claims of religious persecution in her 2008 Protection visa application, but during her department interview [in] July 2014 had indicated that, while those claims were true and that she is Christian, she is not relying on any religious claims in the present application. During her Tribunal appearance on 12 November 2015 the applicant said that she does not fear harm in China in connection with her Christian religion. She indicated that, while she feels she has been mistreated in China in the past, the real reason has been because she has sought compensation for the confiscation of her land. She said that her then husband was also been mistreated in China in around 2008, but again, religion was the excuse used to mask the real reason she and her husband were targeted, being their pursuit of compensation for their land. She said that her fears of harm in China should she return there are related only to her intention to seek compensation for the expropriation of her land, as well as to her outstanding debts. On the evidence before it, the Tribunal is not satisfied that the applicant holds a subjective fear of serious or significant harm in China in connection with her religion; or that there is any objective basis on which to be satisfied that she faces a real chance of serious and/or significant harm in China in connection with her religion.

16. The delegate’s decision record also notes that while the applicant’s [child], born on [date], was included in the current visa application form, [he/she] subsequently withdrew [his/her] application, that withdrawal taking effect [in] May 2014. This information is not in dispute and the Tribunal finds that the current review application relates only to the review applicant who became, [in] May 2014, the sole visa applicant. The applicant told the Tribunal during her November 2015 appearance that her [child] now holds a temporary spouse visa, having married an Australian resident in [2013]. She said that she paid around $[amount] to the family of her [child]’s [spouse] for the marriage, explaining that such a high sum was required for her [child] to marry an Australian resident.

17. Information contained in the applicant’s current Protection visa application, prepared with the assistance of a RMA, is to the effect that she was born in [year] in Fuqing, Fujian province, China. She is a national of China where she married and has since divorced. She held a Chinese passport issued [in] 2006 which expired [in] 2011 and entered Australia holding a Student Guardian subclass 580 visa in September 2007. She has also provided a copy of her current Chinese passport issued [in] 2013, ceasing [in] 2023.  She identifies only one residential address in China, indicating that she lived there until September 2007, being the time she left China for Australia. She left China legally using her passport.

18. Regarding why she left China she states “as a guardian to my [child] who was a student in Australia”[2]. In relation to any harm she experienced in China she offers only “have been mistreated”[3]. In respect of what she fears may happen if she returns to China she responds only “I am in fear of harm by the villagers and the authorities; in fear of denial of my right to access my farmland”[4]. The applicant explained that this “farmland” is land which was confiscated in 2004, on which she and her husband had built a factory. Regarding who she thinks may harm her in China she states “the villagers and the authorities” in connection with the authorities expropriating her farmland for the expansion of a highway, without fair compensation. She claims that if she returns to China she will “ask for fair compensation and return of the land. As such, I will be harmed and mistreated. I also have unpaid debt. The creditors will harm us as well so as for the loan (sic)”[5].

    [2] Department file, folio 19

    [3] Ibid, folio 18

    [4] Ibid, folio 18

    [5] Ibid, folio 17

19. In support of her application she includes documentation evidencing her divorce in China [in] 2009, some 2 years after she departed China for Australia[6].

    [6] Ibid, folio 56

20. The applicant also gave oral evidence in support of her application during a department interview held [in] July 2014. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, records the applicant giving evidence to the following effect during that interview:

    a.she does not want to return to China because she fears persecution by the Chinese government in connection with her confiscated land;

    b.her divorce in 2009 was initiated by her because she and her husband quarrelled and she did not intend to return to China from Australia;

    c.regarding her land claims, she intends to seek compensation from the Chinese government regarding land confiscated in 2004. While in China she physically attended the village council and lands office to request compensation but was not favoured due to her Christian religion. She has not continued the compensation request since arriving in Australia in 2007;

    d.regarding her legal relationship to the land, she said that the land was owned communally by the village but that she and her ex-husband had leased the land for business purposes for [number] years prior to its expropriation. She agreed that she would not be returning to that land as it has been sold, and she would not be operating a business with her ex-husband given that they have divorced;

    e.the delegate put to the applicant that the record of her department compliance interview in November 2013 records her giving evidence that: she could not return to China because she owes a lot of money because of her [child]’s [marriage] and she needs to stay in Australia to work and repay the debt; she intends to work in Australia for 1 or 2 more years to repay debts and then return to China to be with her family members. In response to the delegate’s suggestion that she seems to have applied for the current protection visa to extend her work period in Australia the applicant responded that the creditors she owes money to in China would come and collect and she will also be oppressed by the government.

    Claims regarding expropriated land

21. The applicant’s claims to fear harm in China in the reasonably foreseeable future in connection with her expropriated land were explored in detail, with the assistance of an interpreter, when she appeared before the Tribunal on 12 November 2013. During that appearance her evidence was to the following effect: the land in question was expropriated in around July 2004; that the land in question was not owned by her, but was leased by herself and her husband from the village committee; she and her husband had built a factory on the land and used it as their source of business; she and her husband had a lease agreement allowing them to use the land for [number] years.  She said that, while she did not own the land she believes she was not fairly compensated for the loss of money she and her husband had invested in building their business on the land in anticipation that they could use the land for [number] years.

22. The Tribunal has seen a copy of the applicant’s Protection Visa application lodged in 2008. While the applicant’s claims in that application focus solely on her fear of religious persecution in China, her statement in support of that application does refer to: her and her husband having leased a piece of land from the [village] for a period of [number] years spanning January [year] until January [year]; that land being used by the applicant and her former husband to establish a [factory]; the applicant and her husband investing their savings and other money into that business; the leased land on which this factory was established being taken over by officials in July 2004, at which point the applicant and her husband were forced to move their factory and dismantle their factory building and [equipment] from the leased land. The applicant’s oral evidence to the Tribunal regarding the use and expropriation of the leased land was consistent with the account she provided in 2008. It was detailed and convincing and the Tribunal accepts that land leased by the applicant and her husband and on which they had built a factory was expropriated by Chinese officials and developers in July 2004 as claimed.

23. Regarding the terms of the lease agreement in respect of the land in question, the applicant told the Tribunal that she does not have a copy of the lease agreement with her.  As put to the applicant, this leaves the Tribunal unable to assess what the lease terms were regarding termination of the lease and compensation in that event. The applicant was unable to elaborate on what those terms were, offering only that she believes she should have been compensated for the loss of money and business from the early termination of the lease.

24. The Tribunal also explored with the applicant, during her November 2015 appearance, the nature of the harm the applicant has suffered to date in connection with the expropriation of her land, and the nature of the harm she fears in the reasonably foreseeable future should she return to China. Regarding what type of harm she fears in the future, the applicant offered variously:  she fears her life will be threatened by the Chinese government and the people in her village who took her leased land because she will seek compensation and the return of her land; in China she felt stressed and under pressure and since coming to Australia these feelings have abated and she fears feeling anxious and stressed in China as she did in the past. She expressly stated that she was not hurt or harmed directly by anyone in China except for being denied compensation and having her leased land taken away before the end of the lease term.

25. The Tribunal asked the applicant what steps she took in China to seek compensation and/or the return of her land after it was expropriated in July 2004. The applicant offered that: she went directly to the village committee to ask for compensation and the return of her land multiple times; the village committee lied to them to make them go away, saying they would compensate and replace the land but they never did; she also approached the town council but it was pointless as the land was already sold and they made lots of money; the land was used to widen a road and the rest of it has been sold. She said that she continued to ask for compensation and the return of her land for around a year after it was taken. She said that she did not put any of her complaints or appeals in writing and that she has not made any attempts to pursue these claims since leaving China for Australia in September 2008. She was unsure whether her husband has pursued the matters in her absence, but, despite remaining in contact with her [child] who lives, at least part time, with [the] father in China, she gave no evidence that any family member remaining in China has pursued these claims there since around 2005. She said the reason she has not pursued the claims with the Chinese authorities herself is because it was useless.

26. As put to the applicant, her own evidence is that she has not pursued any claim for compensation or for return of her leased land since at least September 2008 and most likely, since 2005, some 7-9 years ago because, on her own evidence, it was useless for reasons including that part of the land has already been used to widen a road and cannot be returned, and the rest has been sold. The Tribunal put to her that this makes it very difficult to accept that she has any intention, interest or desire to pursue these claims should she return to China. The applicant did not respond directly to this point, offering only that she would want her investment money back and she will pursue the claims.

27. The Tribunal asked the applicant whether, other than not returning her land and not giving her what she considers to be adequate compensation, she was harmed in any other way in China. She said that she was not harmed in any other way by anyone. However, she said that, when the land was confiscated in July 2004 she and her husband had no place to store the [equipment] and other factory items that had been used by them at their factory, so those items were contained inside a fence of the village committee. However, no security was provided to ensure the safety of those items, so the applicant and her husband took turns in sometimes sleeping under a shelter they built across the street to ensure that the items were safe. She gave no evidence of either she or her husband being harmed in any way while doing so. She said that, on one occasion she and her husband witnessed a person attempted to thieve some of their belongings across the road but the authorities offered no assistance. She said that she and her husband had another residence at which to live at that time, comprising a four story development in the same village which has since been sold, but they slept under the shelter across the street on occasion to watch over the factory items from time-to-time. She also said that, after the expropriation of their land in July 2004, by day she and her husband worked in a shop. The applicant’s evidence is clearly that, she and her husband opted to sleep in a shelter opposite their belongings from time-to-time to ensure the security of those items, despite them having other work and another residence in which they could live. Her evidence was also that, by July 2005 the applicant and her husband had bought another plot of land on which they re-built the same factory and that business continued to operate for around three years, until around 2008. She said that this second factory was established in the same area as the first, opposite the village committee she had sought compensation from. While she claimed that that that second factory was sealed in 2008 in connection with the applicant and her husband producing Christian material, she gave no evidence of the factory’s operations being adversely impacted in any way by the village committee or anyone else in the three years preceding its closure. On her own evidence, that factory was established and developed into a successful business which continued to operate for three years opposite the village committee and amongst the villagers she claims to fear harm from in the reasonably foreseeable future.  Yet there is no suggestion on the evidence advanced that the applicant was harmed in any way at any time while remaining in the village.

1. Based on the evidence before it, the Tribunal accepts that: the applicant and her husband lost money they invested into building and developing a factory on land they expected to lease for [number] years ending in [year]; the applicant and her husband spent some nights in discomfort watching over their belongings from a shelter they built across the road between around July 2004 and July 2005; after July 2005 they moved their belongings to a new factory which has since closed. Despite these factors, the applicant’s evidence, which the Tribunal accepts, is that the applicant and her husband continued to have a home in which to live and they continued to work. There evidence and claims advanced do not suggest that the applicant’s capacity to subsist was ever threatened in China.

2. The Tribunal also accepts that the visa applicant made direct approaches to the village committee and town authorities in the months immediately surrounding the expropriation of her leased land in July 2004 in an attempt to seek compensation and the return of her land. The Tribunal has considered the applicant’s evidence that the second factory established by the applicant and her husband in 2005 was sealed in 2008 on the excuse that it was being used to produce illegal Christian material and this was an excuse to punish the applicant and her husband for pursuing the land compensation claims. However, in the context of the applicant’s evidence that she does not fear harm in China in connection with her religion, and that she and her husband were able, in 2005 and the three years which followed, to obtain a plot of land opposite the village committee, and re-establish a successful business without any evidence of any adverse interference from anyone, the Tribunal is not satisfied of the truth of the applicant’s claim that the applicant or her former husband had their second factory sealed for the reasons claimed, or that it was sealed at all.

3. In respect of harm the applicant may face in the reasonably foreseeable future in China, the applicant has given no evidence of any of her family members who remained in China after she departed in 2008, either pursuing any land claims or being harmed in connection with them. Instead, her evidence reveals her [child] to have successfully pursued tertiary education in China, and her former husband to continue living in [the] village, where she claims to fear harm from the village committee. The applicant’s own express evidence is that she has not pursued any claim for compensation for return of her land since around 2005, and definitely not since she left China in 2008, as she concluded, while in China, that such a pursuit is useless for a combination of reasons including that the relevant land has been partly used to widen a road, while the other part has been sold. These factors cumulatively lead the Tribunal to conclude that, should the applicant return to China, she does not intend to pursue any claims for compensation or for return of leased land which was taken from her and her husband, jointly, over ten years ago, and in relation to which neither she or any family member remaining in China has pursued any action for in around 7 to 9 years.

4. The applicant claims that she fears harm in China from the Chinese authorities and from [villagers] because she will “ask for fair compensation and return of the land. As such, I will be harmed and mistreated.” However, as reasoned above, the Tribunal is not satisfied that the applicant has any intension or desire to ask for compensation or the return of her land should she return to China. It follows that the Tribunal is not satisfied that she will be harmed in connection with asking for fair compensation and/or the return of her leased land. The Tribunal is also not satisfied that the applicant will be discrete in requesting compensation or the return of her leased land out of fear of harm or mistreatment, including persecution. Nor is the Tribunal satisfied that the applicant has any profile related to her past requests for compensation and/or return of the land which give rise to any risk of harm to her in the reasonably foreseeable future, including a real risk or serious and/or significant harm as contemplated by the relevant law referred to in Annexure A. On the basis of all the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious and/or significant harm in China in connection with the expropriation of leased land in 2004.

   Unpaid debt

5. The applicant has also claimed to fear returning to China as she has unpaid debts in relation to which creditors may pursue her. Specifically, she claims that, in around 2012, she and her husband had to raise around $[amount] to secure their [child]’s marriage to an Australian resident, that money being paid directly to the [spouse]’s family. Some of this money was borrowed from friends, and some from relatives in China. Of this debt, she said there is still around $[amount] owing, and around $[amount] has already been paid back mainly from money saved while she worked in Australia. Her evidence was that the debt is one owing by both herself and her former husband as parents of their [child], yet she gave no evidence of her former husband or remaining family in China being harmed in any way in connection with that debt.

6. When asked who has approached her regarding repayment of the debt and what particular harm she fears from the people she owes money to, she responded that she is not very afraid of the debt and she can still make money and pay it back. She said that her real concern is that she has a mental barrier about returning to China and she feels anxious and stressed at the thought of going back there. She gave no evidence of being threatened with harm in any way in connection with the money she claims to have borrowed from friends and relatives in China.

7. She also gave evidence that the [child] in relation to whose marriage she and her former husband borrowed $[amount], is aged [age] and married [his/her] [spouse] in [2013]. They have a [child] who will turn [age] [in] month. Her [child] will become an Australian permanent [resident]. The applicant lives with this [child] and [family] in Australia in a home owned by her [child], which [he/she] bought around one year ago. Her [child] works as [occupation]. [Details of spouse deleted].

8. The applicant also told the Tribunal that [another child] has also moved to Australia from China, having also recently married an Australian resident. She said her [child] came to Australia on a visa for [spouses] and paid for [the] visa and travel to Australia with money from [the] father, the applicant’s ex-husband.  [Details of child deleted].

9. The applicant said that [another] child is a [age] year old [child] in China. [He/she] has finished university in China and is studying for [the] IELTS exam with the hope of coming to Australia to study a [tertiary] degree.

10. The Tribunal asked the applicant why her children and husband cannot help her repay the outstanding debt in China. She responded that it is an individual debt. However, her evidence provided no convincing reasons as to why she her children in Australia would not be able to assist her or her ex-husband to repay any debt owing in China. Further, the applicant’s evidence did not identify her or her former husband being threatened or mistreated in any way regarding repayment of the debt. Nor did her oral evidence to the Tribunal in November 2015 reveal her to have a subjective fear of serious or significant harm in China in connection with her debt, her express oral evidence to the Tribunal being that she is not very afraid of the debt and that she can make enough money to pay it off. In addition, her evidence reveals that she has a [child] who lives and works in China, and a [child] who lives and works in Australia. She also has [another child] residing in Australia who is married to an Australian resident. The evidence advanced does not support the applicant’s claims that she faces a real chance of any type of harm from unpaid creditors in China. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of any harm or mistreatment in China in connection with unpaid debts, including serious and/or significant harm as contemplated in the relevant law annexed.

    Conclusions

11. Based on the totality of the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of harm or mistreatment of any kind for any of the reasons expressed or arising on the evidence. Specifically, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious and/or significant harm in China in the reasonably foreseeable future in connection with the following, including cumulatively: her past requests for return of her land or compensation for expropriated land; any intention to pursue any claims for return of her land or compensation for expropriated land; her unpaid debts. 

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 criterion set out in s.36(2)(a).

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

14. 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

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

    Suhad Kamand
    Member

    
    

    APPENDIX 1

    RELEVANT LAW

16. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

17. 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).

18. 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.

19. 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.

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

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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

27. 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’).

28. ‘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.

29. 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

30. 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.