1414625 (Refugee)

[2015] AATA 3342

1414625 (Refugee) [2015] AATA 3342 (24 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414625

COUNTRY OF REFERENCE:                  Nepal

MEMBER:David McCulloch

DATE:24 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2015 at 8:40am

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 Nepal, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 18 August 2015 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

9. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

   Background and claims

10. The applicant arrived in Australia [in] November 2008 on a Student visa, which ceased [in] March 2011. The application for a Protection visa was made [in] January 2014.

11. The relevant application forms for a Protection visa list the applicant as living in [Town 1], Nepal.  The applicant is listed as having attended [number] years of education. The applicant lists no past employment in Nepal. The applicant lists having worked as a [occupation] in various establishments since 2009 in Australia.

12. In the relevant application forms, the applicant indicates that Maoists were creating problems for him in Nepal. The applicant was badly assaulted by a Maoist terrorist group who are now running the government. As a result, the applicant’s parents sold their property, and sent the applicant to Australia, otherwise he would have lost his life. The applicant got hit in the head and stabbed in the [back]. The applicant was tortured because he was not supporting the Maoists and not joining their army or engaging in their criminal activities. The applicant did not have the resources to give them ransom money. The applicant fears that he will be killed or kidnapped should he return.  When the applicant was harmed he tried to complain to police but they could not do anything. The applicant was hit again by the Maoists for complaining to the police. The authorities cannot assist, because Maoists are running the government.

13. The applicant has parents who are alive. He has [siblings] who are in Nepal.

14. The application form indicates that the applicant was charged with common assault in Australia and the matter is going before the court. The applicant indicates that this happened because he was mentally sick and suffers from [a condition] for which he has been treated in hospital.

15. The applicant provided a further statement and documents to the Tribunal received on 17 August 2015, two days before the scheduled Tribunal hearing. The statement indicates that the applicant was forcibly detained by the Maoist group, who threatened his safety. After this forced custody, the applicant’s father withdrew all available funds to assist him to get to Australia. The applicant and his family are supporters of the royal family and are fearful of the Maoists. The applicant’s family advised him not to return and they do not have funds to assist the applicant. The applicant indicates that he has been employed whilst in jail. He indicates that he is aware of the seriousness of his offences and has been working hard to make a new life for himself in Australia.

    ·Letter dated [in] January 2014 from [an employer in] Nepal, indicating that the applicant’s father has been employed with the organisation for 25 years. It indicates that the applicant was threatened by Maoists and ‘warned to death’. It is indicated that the [applicant’s] family were compelled to sell property to send the applicant overseas. It indicates that the applicant’s life will not be safe if he returns to Nepal.

    ·Letter from District Police Office dated [in] July 2015 indicating that the applicant went to Australia during the Maoist agitation and was threatened with death and was sent to Australia in order to save his life.

    ·Letter from [a local] Municipality Office dated [in] June 2015 indicating that the applicant’s father has been living in [location] and that his property collapsed during the earthquake. It indicates that the applicant has been in Australia and was subject to death threats from Maoists causing the applicant’s family to sell property to send him to Australia. It indicates that the family is in financial crisis due to the earthquake.

    ·Letter dated [in] May 2015 from [the employer] indicating that the applicant’s father has been an employee for the last 25 years.

    ·Unsigned and undated letter from [a doctor in Australia] indicating that the applicant has been exposed to ‘treating, harassing and traumatic abuse in Nepal’.  It indicates that the applicant was exposed to violence ‘up to fear of death’. It indicates that the applicant has suffered ‘post-traumatic syndrome’.  It indicates that he has developed psychotic episodes and he has been admitted to [a] Hospital. It indicates that the applicant still suffers depression but has been taking medications in a regular way. It indicates that the applicant cannot return to Nepal as he will be exposed to ‘treating and even death’. The letter indicates that the symptoms are under control.

    ·A letter from the applicant dated [in] July 2015 to his Case Officer.  It indicates that the applicant had drug-related problems which resulted in him being jailed. The applicant has attended [a support agency] and is committed not to use drugs.

    Independent information

    Recent Maoist or other violence against the Rastriaya Prajatantra Party (RPP)  members or supporters of other monarchist parties

16. The Tribunal made a request of the Country of Origin Information Section of the Department of Immigration and Border Protection to research information about political attacks by Maoists on members or supporters of royalist political parties in Nepal since 2011. The following information was obtained.

17. Two reports of Maoist violence against pro-monarchy supporters in 2011 were located. No further reports of violence perpetrated by Maoists or others against conservative pro-monarchy supporters were located from 2011 to date.

18. Maoist violence periodically continued following the signing of the Comprehensive Peace Agreement in 2006. Much of this violence was perpetrated by underground and splinter faction Maoists groups and the Unified Communist Party of Nepal (Maoist) (UCPN-M) until 2012. Intra-party violence was noted in 2011 amongst Maoists.  In 2012, the UCPN-M was removed from the United States list of world-wide terrorist organisations. 

19. Two incidents of Maoists violence against pro-monarchists in 2011 were located. On 26 April 2011, ‘[a]t least 14 RPP activists were injured in a clash with the UCPN-M cadres at Madi in Chitwan District. According to eye witnesses, the clash ensued after the Maoist cadres suddenly attacked the RPP activists while they were attending a party workers’ meeting at Madi.’  On 1 November 2011, ‘[a] cadre of Rastriya Prajatantra Party (RPP), Pemba Lama of Bhotang VDC-1, was injured when two local UCPN-M cadres – Raju Tamang and Mangale Tamang – attacked Lama with Khukuris on the charge of having different political belief.’

20. According to the South Asia Terrorism Portal’s Nepal Assessment 2015, no Maoist insurgency related civilian deaths were record during 2014:

    The environment of peace that had been established in Nepal in 2013 survived, despite challenges, through 2014, with not a single insurgency-related fatality on record. Significantly, since March 2000, when the South Asia Terrorism Portal (SATP) database commenced compiling data on insurgency-related fatalities in Nepal, it was in 2013 that the Himalayan Nation did not record a single insurgency-related fatality during the course of a year, for the first time, and remained completely free of insurgency-related violence. At its peak in 2002, the insurgency saw 4,896 persons, including 3,992 Maoists, 666 Security Force (SF) personnel and 238 civilians, killed in a single year.

    Hearing, credibility, findings and assessment

21. 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: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.

22. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

23. The Tribunal is satisfied that the applicant is a citizen of Nepal, and accordingly his claims will be assessed against Nepal.

24. At the commencement of the hearing, the applicant was asked if there was any impediment to him giving evidence, and he said that there was none.

25. The Tribunal has significant credibility issues with key aspects of the applicant’s claims, given substantial and numerous inconsistencies between his written claims and the account he provided in the Tribunal hearing.  In addition, the fact that the applicant waited almost six years from arrival in Australia to claim protection is not consistent with the applicant leaving Nepal for the reasons claimed or fearing harm on return as a result.

26. The Tribunal asked the applicant in the hearing to explain in detail the interactions he had with Maoists. The applicant said that, in late 2005, when he was with about four or five other boys in [Town 1], they were approached by men who identified themselves as Maoists.  They sought to persuade the applicant and his friends to join them. The applicant and his friends laughed at the Maoists. This caused the Maoists to draw a gun on the boys and to take them to a building where they were held overnight. They were questioned one-by-one. They asked the applicant to join their group.  The applicant said that he supported the royal family. The applicant was beaten up. When asked how he was beaten up, he said he was jumped on by the Maoists and he had a scar on his head. The applicant said that in the morning he was allowed to call his father who came to collect him. His father promised the Maoists that his his son would work for them when he was not studying.  As a result, the next day, the applicant went with his father to Kathmandu where he lived until he came to Australia in 2008. The Tribunal asked the applicant if anything else happened before they went to Kathmandu and he said that nothing else happened.

27. The applicant said that in Kathmandu, whilst he would run into Maoists, he did not have any real problems from them. He said that Kathmandu is a big place and it was easy for the applicant to run from the Maoists. The applicant said that on some occasions he did attend events at the request of Maoists, but did not have any real problems. The applicant did indicate that the Maoists in [Town 1] visited his home there after he had left for Kathmandu. The applicant said that neither his parents or his [siblings] ever had difficulties from the Maoists. 

28. The applicant gave evidence to the Tribunal that he had lived with his family in [Town 1] up until leaving for Kathmandu in 2005. The applicant had finished secondary school in approximately [year]. He then completed a [business] course at a higher secondary college. He enrolled in a further course, but did not complete it. In Kathmandu, the applicant made three attempts to join as an officer in the Nepalese army without success, because he failed his exams. The applicant’s father worked regularly in Kathmandu and only travelled back from time to time to visit his family in [Town 1].  The applicant, whilst in Kathmandu, lived in his father’s home there.

29. The applicant said that the reason that his father sent him to Australia was to avoid the problems that had arisen during the encounter with Maoists in 2005.

30. In the hearing, the Tribunal pointed out to the applicant inconsistencies in his account to the Tribunal compared to his written claims.  It noted to the applicant that in his written claims he indicated that the Maoists stabbed him in the back, there was ransom money that was required, the applicant complained to the police but they could not do anything, and he was hit by the Maoists again for complaining to the police. The Tribunal noted that this was a very different account than he had told the Tribunal.  The applicant in response agreed there were differences.

31. The applicant said that his father complained to the police but that said they could not do anything. The applicant said that he was stabbed in the neck, but he did not remember this because he is on medication. The Tribunal indicated to the applicant had found it difficult to accept that he would not remember if he had been stabbed in the neck.

32. The Tribunal highlighted that the applicant had claimed that he was hit a second time by Maoists for complaining to the police which is inconsistent with the evidence to the Tribunal that he went to Kathmandu the day after the detention and nothing else happened. The applicant responded that it has been a long time, and he does not remember too many things and that he has been treated in hospital a number of times. The Tribunal noted to the applicant that at the beginning of the hearing he said there was no impediment to him giving evidence. The applicant said that he did not understand what this meant. The Tribunal noted to the applicant that his evidence to the Tribunal had been clear, and it did not strike the Tribunal that the applicant was confused in the giving of his evidence.  Later in the hearing the applicant said that he was nervous, suffering from depression, and had not planned for the hearing, and he was sorry for missing a few things.

33. In relation to the ransom, the applicant indicated that the Maoists were seeking money but his father did not pay.

34. The applicant was also inconsistent in the hearing as to whether or not he returned to [Town 1] whilst living in Kathmandu from 2005.  Earlier in the hearing, when the Tribunal was exploring with the applicant where he lived, the applicant said that he would visit [Town 1] during his time in Kathmandu. Later in the hearing, the applicant indicated, and confirmed, that he did not return to [Town 1] for fear of the Maoists.  When this inconsistency was pointed out to the applicant, he said it has been a long time and he does not have a good memory.

35. The Tribunal noted to the applicant, that if it were to accept what the applicant has claimed happened in 2005 is true, he, nevertheless, had lived without difficulty for three years in Kathmandu before coming to Australia. This would suggest the applicant would be able to avoid any harm from Maoists in [Town 1] by living in Kathmandu. The applicant responded that Maoists have learnt that the applicant has travelled to Australia, and he would be targeted by Maoists now in Kathmandu.

36. The Tribunal indicated to the applicant that the Maoist insurgency has now ended and, although there are still difficulties from Maoists in Nepal, the difficulties are less prevelant than they were in 2005. The applicant in response said that what happens in practice is not reported in the media.

37. In the hearing, the applicant said that he waited six years to claim protection because he did not know about the option. He said a friend told him of it.  The Tribunal said that it found it difficult to accept that the applicant would not learn about the option for six years, such as from the Nepalese community in Australia, noting that his student visa ceased in 2011 meaning that he would have had an incentive to look for other options to stay. The Tribunal noted that the delay was not consistent with the claimed fear. The applicant said he had no response to this concern.

1. The Tribunal indicated to the applicant that it had some concerns in relation to the content of the letter from [the doctor], undated, indicating the applicant’s medical conditions and the situation he faced and faces in Nepal.  The Tribunal noted that the letter did not seem to be written by someone with a command of proper English. It also expressed concern that the letter would assert that the applicant cannot return back to Nepal as he will be exposed to ‘treating and even death.’  It noted that it seems unlikely that a professional doctor would make such a claim. They could not do so from their own knowledge, and only from what they had been told by their patient. The applicant indicated that his doctor is [a certain nationality] and that she is his doctor and that the Tribunal can check with her.

2. In considering the totality of the evidence given by the applicant, the Tribunal is not satisfied that he has been a truthful witness in terms of being detained by Maoists in 2005 and having to flee to Kathmandu as a result. The inconsistencies in the applicant’s account of this event are numerous and significant.  The applicant, in his account to the Tribunal, made no mention of key aspects in his written claims: being stabbed; complaining to the police; being subsequently attacked again by the Maoists as a result of the police complaint; or a ransom being demanded. The Tribunal does not accept the applicant’s later claim in the hearing, that his father was the one who complained to the police, addresses that inconsistency. The applicant’s written claims state that he complained to the police. The applicant has also been inconsistent as to whether he made visits back to [Town 1] during his stay in Kathmandu.

3. A number of these inconsistencies are significant, particularly the account of being stabbed and a second occasion of being attacked by Maoists following the complaint to the police. The Tribunal does not accept that these are matters that could be forgotten due to the passage of time or due to nervousness.

4. The applicant indicated that his medical conditions and medication he is on are causes of inconsistencies in his evidence. The Tribunal also notes that the letter provided by the applicant’s doctor seeks to assert that the applicant has faced harm and abuse in Nepal.

5. While the Tribunal has concerns with aspects of the letter provided by the applicant’s doctor, it is prepared to accept it as genuine. However, the Tribunal is not satisfied that the applicant’s various diagnoses are the result of harm from, or fear of harm from, Maoists as claimed. The Tribunal gives little weight to the applicant’s doctor’s assertion that the applicant has faced abuse and harm in Nepal and is at risk of harm because the Tribunal is not satisfied that she could know this independently of what she has been told by the applicant, and the Tribunal is not satisfied of the applicant’s credibility. In terms of post-traumatic stress, while the Tribunal is prepared to accept that the applicant has been diagnosed as such, it is not satisfied that this has been caused due to the applicant facing harm or fear from Maoists for the reasons claimed.

6. In terms of the inconsistencies in the applicant’s evidence in the hearing, the Tribunal is not satisfied that these were due to the applicant’s medical conditions or to medications he is taking. This is based on the applicant’s own indication at the beginning of the hearing that there was no impediment to him giving evidence. The Tribunal does not accept the applicant’s later claim that he did not understand what this question meant. The Tribunal notes that the letter from the applicant’s doctor indicates that the applicant’s symptoms are under control. The Tribunal also considers the way in which the applicant gave evidence in the hearing. The applicant was composed and clear in the evidence that he gave, notwithstanding that it was inconsistent from other claims.  For all these reasons, the Tribunal is not satisfied that the applicant was in a confused or uncertain state that would be consistent with the applicant suffering a medical impairment or being affected by medication.

7. The documents provided by the applicant to support and corroborate his claims do not overcome the credibility issues outlined. As the Tribunal noted to the applicant, forged documents are easy to obtain in Nepal.[1] The Tribunal notes that the supporting letters make only the most generalised claims of the applicant facing harm from Maoists without any details. There is no indication as to the basis on which the applicant’s father’s employer, or the [local] Municipality Office are independently aware of what has happened to the applicant. In terms of the letter from the District Police Office it is noted that this letter was created in 2015, ten years after the claimed incident in 2005.

   [1] Immigration and Refugee Board of Canada 2009, NPL103010.E - Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January –

8. The applicant indicated that the documents are genuine, and this would be verifiable by the documents authors. The Tribunal remains unsatisfied that information in the letters that the applicant suffered threats from Maoists reflects what actually occurred. The Tribunal gives these documents little weight.

9. The Tribunal draws significant adverse inference from the six year delay in the applicant claiming protection, which is not consistent with the claims made or the applicant having an actual or well-founded fear of harm in Nepal. The Tribunal does not accept that the applicant did not know about the option for protection. If the applicant fled Nepal for fear of harm of Maoists, the Tribunal considers that he would have researched Protection visa options at an earlier stage, and certainly at a point when his Student visa expired. The significant delay serves to confirm the credibility concerns in relation to the applicant’s claims.

10. In summary, the Tribunal is not satisfied that the applicant was detained and harmed by Maoists in 2005, and that he fled to Kathmandu as a result. The Tribunal is not satisfied that Maoists in [Town 1] are looking for the applicant. The Tribunal is also not satisfied with the applicant’s claims that Maoists have learnt that the applicant has travelled to Australia which would now cause them to look for him and harm him should he return to Kathmandu, or anywhere else in Nepal.  The Tribunal accepts the applicant’s evidence in the hearing that neither his parents or siblings have suffered any harm from Maoists. The Tribunal does note that in the interview with the delegate of the Minister the applicant indicated that his father had been tortured by the Maoists and asking when the applicant was returning. The Tribunal considers the applicant’s response in the hearing reflects the true situation.

11. Given these findings, the Tribunal is not satisfied that there has been any harm, or threats of the harm, against the applicant or his family by Maoists, or adverse interest in the applicant by Maoists, that would create a real chance of the applicant facing serious harm from Maoists in the reasonably foreseeable future should he return to Nepal.

12. The applicant claimed more generally in the hearing that he faces harm from Maoists because he supports the royal family. The applicant, in the hearing, indicated that, although he and his family are supporters of the royal family, they are not supporters of any of the Nepalese political parties that support the royal family, such as the RPP. The Tribunal noted to the applicant in the hearing that independent evidence indicated that there has been no reports of harm since 2011 against supporters of royalist political parties in Nepal.

13. Even though the applicant is not a supporter of a royalist political party as such, the Tribunal considers that, in assessing the risk of harm from Maoists as a result of the applicant supporting the royal family, he falls within the same category as a supporter of a political party that supports the royal family. The Tribunal is not satisfied, based on independent evidence, that there is a real chance of serious harm to the applicant from Maoists, or anyone else, due to being a supporter of the royal family.

14. There are claims that the applicant’s family is in a difficult financial situation due to the earthquake and they will not be able to support the applicant. The Tribunal is prepared to accept this, but does not consider that this creates a real chance of serious harm to the applicant for a Convention reason. The Tribunal notes that the applicant is an adult and has significant work experience as [occupation]. The Tribunal has no basis to consider that the applicant would not be able to support himself in Nepal or be unable to subsist, notwithstanding support or otherwise from his family.

15. The Tribunal is not satisfied that there is any other basis on which the applicant faces a real chance of serious harm in the reasonably foreseeable future should he return to Nepal.

16. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of his political opinion or for any other Convention reason from Maoists, or anyone else, due to past adverse interest by Maoists in the applicant, or due to the applicant being a supporter of the royal family, or for any other reason.

17. Having considered the Refugees Convention criterion, the Tribunal considers the complementary protection criterion.  Given its findings, the Tribunal is not satisfied there has been any harm, or threats of harm, against the applicant or his family by Maoists, or adverse interest in the applicant by Maoists, that would create a real risk of the applicant facing significant harm from Maoists should he return to Nepal. The Tribunal is not satisfied that there is a real risk of the applicant facing significant harm from Maoists, or anyone else, as a result of being a supporter of the royal family, given independent evidence. The Tribunal is not satisfied that any financial difficulties of the applicant’s family would result in the applicant facing a real risk of significant harm, as defined. The Tribunal is not satisfied that there is any other basis on which the applicant faces a real risk of significant harm should he return to Nepal.

18. In summary, 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 Nepal there is a real risk that he will suffer significant harm due to past adverse interest by Maoists in the applicant, or due to the applicant being a supporter of the royal family, his family’s financial difficulties, or for any other reason.

19. 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).

20. 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).

21. 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

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

    David McCulloch
    Member