1415650 (Refugee)

[2016] AATA 3876

1415650 (Refugee) [2016] AATA 3876 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415650

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Mara Moustafine

DATE:20 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2016 at 1:43pm

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 citizen of Nepal who is aged [age]. He arrived in Australia [in] September 2000 on a [temporary] visa.

2. The applicant first lodged a protection visa application [in] November 2000, which was refused [in] January 2001 (the first delegate’s decision). The applicant sought review by the Tribunal, differently constituted (the first Tribunal), and the first delegate’s decision was affirmed on 31 July 2002. In 2002 and 2003 the applicant lodged appeals for judicial review to the High Court and the Federal Magistrates Court, which were unsuccessful, as was his application for Ministerial Intervention in 2004.

3. [In] May 2013, the applicant lodged another protection visa application on Complementary Protection grounds[1], which was deemed invalid [in] June 2013. However, [in] August 2013 the application was deemed valid as a result of the Federal Court judgement in SZGIZ v MIAC, which found that s.48 did not prevent a person making another protection visa application on complementary protection grounds. The second delegate refused to grant the visa [in] August 2014 and the applicant applied to the Tribunal for review of this decision on 17 September 2014.

   [1] The applicant’s [representatives] provided a submission on 30 May 2013 specifying that the application was for a Complementary Protection Visa under section 36(2)(aa).

4. The applicant appeared before the Tribunal on 18 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

6. As the applicant’s claims had previously been assessed against the Refugee criterion and he was found not to have a well-founded fear of being persecuted in Nepal for a Convention reason, the Tribunal assessed his claims only against the Complementary Protection provisions. This was explained to the applicant at hearing.

7. The issue in this review is whether the applicant’s claims are credible and, if so, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm. 

   CLAIMS AND EVIDENCE

8. According to his protection visa application and detailed statement dated 28 May 2014, the applicant was born in [Nepal] in [year] into a Hindu family of [a certain] ethnicity. After completing [number] years of school, he helped his parents in their [business]. He reads, writes and speaks English, as well as Nepali, and has never married. His widowed mother and married siblings live in Nepal.

9. He claimed that he joined the Maoist party during the civil war because he was persuaded by the Maoist ideology of universal equality, although he did not have full knowledge of the party. His role was to inform villagers in his local area about Maoist activities. One of his Maoist friends was killed by the police in an attack in March 2000, but he managed to escape unharmed. After this he lived in constant fear of being killed by the police or army for being a Maoist, but could not disown his membership of the Maoists for fear of being killed by them. He was also under huge pressure from his parents to marry a woman of their choice, but was not interested in this as he was not sexually interested in women.

10. He left Nepal and came to Australia [in] October 2000 with the help of his [relative] to avoid persecution from the police, the army and the Maoists. He fears he will face a real risk of harm due to his sexual orientation and political opinion. He fears he cannot get state protection and cannot relocate to other parts of Nepal.

11. The applicant said he first felt sexually attracted to men at the age of [age], but remained secret about it ‘to avoid harm, expulsion by parents and relatives and other conservative people’. As he grew up in a very conservative Hindu family and community, he was unable to reveal his sexual orientation due to fear of rejection, harm and discrimination while living in Nepal.

12. He continued to conceal his sexual orientation after he came to Australia because he thought that homosexuality was illegal in Australia, as in Nepal. As he did not seek legal advice on his immigration matter, he only heard of political and religious grounds for a protection visa from Nepalese friends, so only claimed to be a refugee on the ground of his political opinion. He converted from Hinduism to evangelical Christianity with the view that the Christian religion would accept homosexuals as human beings and was baptised in July 2006.

13. Only in February 2007 did the applicant become aware that homosexuality was not illegal in Australia. Coming out was a huge relief and eased his feellngs of isolation. Now he finally feels he is who he is and does not have to lie anymore. He is proud to be gay and be identified as gay. He daydreams about males, watches porn movies and masturbates to satisfy his desires for males. He is a member of [a club] and [hotels] in [suburb] and visits gay bars/clubs in [location]. He is not in a relationship at the moment but hopes he will meet a man that interests him and, in time, may commit himself to him as his lifelong partner.

14. His Nepalese friends told him that he could apply for a protection visa on the basis of sexual orientation. As he is gay, he regretted that he didn't make claims to be a refugee on the ground of his sexual orientation as well as political opinion in his previous protection visa application.

15. As homosexuality is a taboo subject in Nepalese society, it is 'a complete shame' for parents to have a gay son. He told his parents in September 2009 over the phone that he would never marry a woman because he was gay and wants to marry a man.  His father died in September 2009 of a [medical condition].

16. If he returns to Nepal, he will have to conceal his sexual orientation for fear of facing reprisals, expulsion and serious harm from his family and the community. He will be the victim of people who hate homosexuals, and be harassed and physically assaulted by the conservative people, including police. Once he is identified as gay, he will not be employed at all. He fears that the Nepalese police will not protect him because they are corrupt and his complaints of abuse will not be taken seriously because he is gay and can't afford to bribe the police authorities for his protection. Nepal is still an intolerant society and widespread ignorance and bias contributes to a hostile cultural climate for gay people. He will be subjected to a lot of harm, even death, if he reveals that he is gay and kisses a man in a public place.

17. Among documents submitted to the Department in support of his application were copies of the applicant’s baptism certificate, his membership of [a] Club in [location] and his profile on [a gay dating site], as well as statutory declarations from two Nepalese gay friends, one stating that he had sex with the applicant three times. 

18. [In] May 2016, ahead of the hearing, the representative submitted to the Tribunal materials in support of the applicant’s claims, including photographs of him at Mardi Gras 2016, his ticket to Mardi Gras and a membership card for the [name] Hotel.

19. Key relevant points from the applicant’s hearing before the Tribunal were as follows:

    a.He last had contact with his mother and siblings in Nepal two years ago.  He is afraid that, if he contacts them, they will want him to get married to a girl. He has had no contact with friends in Nepal in the last two years.

    b.He converted from Hinduism to evangelical Christianity in 2006 because he liked Christianity, its rituals and society, and thought it was better than other religions. He has been attending [a] Church in [suburb] on Sundays for the past 10 years when he is not working and has many friends there.

    c.He came to Australia in October 2000 for two reasons: to escape the civil war between the Maoists and the monarchists in Nepal because he was in the Maoist Party and because of his homosexuality. He came to Australia because it was a secure place where he could be safe.

    d.He came on a [temporary] visa and had no plans as to what to do, just came for security and wanted to work and stay in Australia as he heard from friends that it was safer and better than other countries.

    e.He did not know anything about homosexual rights in Australia before he came here and only found out that homosexuality was legal in 2007. He did not respond when asked how he knew Australia was safer than Nepal for homosexuals, saying he did not disclose his homosexuality, just kept it to himself.

    f.He stayed with a Nepalese friend [for] four years and worked in a [workplace]. He later worked in restaurants and as [occupation]. He was still working as [occupation], earning $300-$400 per week, although he did not have work rights. 

    g.He lives with his friend [Mr A], another Nepali homosexual who met him in Australia around 2013 and has been in a ‘partner’ relationship with him for three years or so. The applicant later qualified this, saying they had casual sex and were not in a committed relationship. 

    h.Asked if he experienced any harm in Nepal, he said that, when he was a Maoist, one of his friends was killed by the police in an attack on their group, although he himself escaped unharmed.  He did not know which Maoist party he belonged to and had little knowledge about politics but was ‘just a supporter’.

    i.Asked why he was afraid to return to Nepal now, the applicant said the situation was the same as when he left and he would not be safe if he returned. To the Tribunal’s suggestion that the situation had changed significantly since the civil war had ended and Maoists were involved in government, the applicant said this was just for show and the Maoists could declare war at any time.  He would be at risk if he returned because he had left the party.

    j.As for his homosexuality, he said that, even though it is now legal in Nepal, if he returns there, his family and society will treat him negatively and his parents will force him to marry a woman.  Asked several times what he thought might happen to him, the applicant responded vaguely that he might have to face harm from his family and society because he is a homosexual and will be treated negatively.

    k.He said there were no other reasons why he feared harm in Nepal. 

    l.In a discussion of his homosexuality, he said he was first attracted to men at the age of [age], but had no homosexual relationships in Nepal and did not know any friends who were gay there. 

    m.He had casual homosexual relationships in Australia, meeting men occasionally in hotels. He first homosexual relationship in Australia was in 2007 with [Mr B], whom he met at [Club 1] in [location], where he worked every weekend for a year. They had sex once a week for nearly a year. After that, he had relationships with other Nepalese men, whom he met at pub parties in [location]. He has been having casual sex with his housemate, [Mr A] since 2013.

    n.Asked what his homosexuality meant to him or what he considered important to his homosexual identity, the applicant said variously that it was an internal feeling that he was homosexual, that it meant ‘man likes man’ and that it was just about sex.

    o.The applicant said he was ‘open’ about his homosexuality but when asked what this meant and who knew about him being gay, he said only he himself knew and the partner he lived with. He had not mentioned it to other friends and did not talk about it, though perhaps they knew. Nor had he told the people at the church he went to every week because they didn’t ask him.

    p.He told his parents he was gay in 2009 when his father asked him to marry a girl. His father then had a [medical condition] and died and the applicant thought it was because he told him he was gay. His parents also told him that, if he returned to Nepal, they would force him to marry a girl. Asked how his [age]-year-old mother would force him to do this, the applicant did not respond directly but said it was ‘our society and our culture’.

    q.Asked if his mother knew about his conversion to Christianity and what her reaction was, the applicant said she knew he became a Christian after coming to Australia but had not mentioned anything about this.

    r.Asked how he spent his time in Australia, apart from working as [occupation] and going to church on Sundays when he had time, the applicant said he just came home and occasionally had sex with [Mr A].

    s.The applicant described Mardi Gras as an annual parade or festival along Oxford Street for homosexual people, who could do whatever they wanted, and a party after. He went to Mardi Gras in 2015 and 2016 by himself, as his partner was busy. Asked what he did at Mardi Gras, he said they walked in a group, danced, sang and played music. He did not dress up, although he had wanted to, as it took time to order costumes. When the Tribunal observed that, in the photographs he had submitted, the applicant was not dancing or singing, just standing passively on the edge of a crowd, he offered to show photographs from his mobile but was unable to find them and described himself as ‘a bit quiet’ rather than demonstrative.

    t.He was not involved with any gay or political organisations in Australia or Nepal. As he had been in Australia for a long time, he did not know about Nepal and was not concerned about what happened to gay people in Nepal.

    u.He confirmed his migration history as set out in paragraph 2. He said he did not mention his homosexuality in his original protection visa application, as he did not know he could apply for protection on that basis but only came to know about this from a friend before his current application in 2014. 

    v.He accepted that he stayed in Australia unlawfully for a period of more than 8 years after his first protection visa application was rejected and subsequent appeals to the courts and application for Ministerial intervention were unsuccessful. He understood that this raised questions about his honesty, but claimed he had no option but to stay in Australia because of his situation.

    w.The Tribunal discussed with the applicant country information regarding the situation of homosexuals in Nepal, which did not tend to support his claims, including that:

    ·     The new constitution, which came into effect on 20 September 2015, included explicit rights and protections for homosexual people including a right to equality, a right to social justice and the ability to choose one’s preferred gender identity on citizenship documents[2];

    ·     There was no legislation which discriminated against homosexuals and the law, in fact, actively protected them[3]; 

    ·     There are numerous advocacy groups supporting homosexual people in Nepal[4].

    ·     Historically, Nepalese society and the dominant religions of Hinduism and Buddhism have been relatively tolerant of homosexuals[5].

    ·     Nepal had an openly gay Member of Parliament between 2008 and 2012. A transgender woman was elected as a representative of the Nepali Congress Party in January 2014.

    ·     Beauty pageants for transgender and homosexual men, LGBT Olympics and a gay pride parade were held on an annual basis[6].

    ·     The US Department of State had noted that incidents of violence were on the decline and the Nepalese police conducted LGBT rights training and closely liaised with the LGBT community to prevent and minimise incidents of harassment[7].

    [2]‘Nepal's New Constitution Leads Region in LGBTI Rights’, Huffington Post, The, 06 October 2015,  Raymond Roca, ‘Nepal: South Asia's LGBTI Rights Pioneer’, Star Observer, 20 October 2015, also states that the Constitution also explicitly provides ‘gender and sexual minorities’ with ‘the right to employment in state structures and public services on the basis of the principle of inclusion’, a form of affirmative action for LGBTI people unprecedented anywhere in the world’.

    [3] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons

    [4] See, for example, United Nations Development Program  (UNDP) & USAID 2014, Being LGBT in Asia: Nepal Country Report: A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society, 25 February, LGBT Advocacy in Nepal (p. 7) Dutt, Y 2014, ‘A queer ban in India, gay and legal in Nepal’, Hindustan Times, 11 January, para.2,4,8-9, 11 an-in-india-gay-and-legal-in-nepal/article1-1171673.aspx

    [7] US Department of State 2014, Country Reports on Human Rights Practices for 2013 – Nepal, 27 February, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons LAW

20. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

21. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as she has not left Australia since the final determination of her previous Protection visa application which preceded the Complementary Protection laws. As the applicant has previously had her claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether she satisfies the requirements of s.36(2)(aa) and (c).

22. The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are there 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?

1. On the basis of the applicant’s passport and in the absence of evidence to the contrary, the Tribunal accepts that he is a national of Nepal and assesses his complementary protection claims in reference to Nepal as the receiving country.

2. In assessing the applicant's claims, the Tribunal has carefully considered and weighed a range of independent material about Nepal and the political situation and the situation of homosexuals there, including those cited above and the recent DFAT country information report on Nepal, prepared expressly for protection status determination purposes.

3. For reasons set out below, the Tribunal is not satisfied that the applicant has been a truthful or reliable witness regarding his claims and the reasons he fears returning to Nepal and has concluded that his claims are not credible. Having regard to the claims and evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Nepal, there is a real risk that he will suffer significant harm.

4. The applicant’s claims, that as a former Maoist who left the country and as a homosexual he will suffer significant harm if he returns to Nepal, were vague and unsupported by evidence, beyond her own assertions.

   Claims regarding his Maoist past

5. By his own evidence, the applicant had limited knowledge about the Maoist party, which he allegedly joined and promoted in Nepal during the civil war; was not involved in the armed insurgency; and did not suffer any harm as a result of his alleged involvement while living in Nepal. As discussed with the applicant, given the significant changes in the political situation in the 16 years since he left Nepal, including the end of the civil war, and Maoist involvement in the government and drafting of the Constitution, the Tribunal is not satisfied that he would be of any interest to the Maoists, the police or the army as a result of his past low-level Maoist involvement, of which the Tribunal is, in any case, sceptical.

   Claims regarding his homosexuality

6. The Tribunal has serious concerns about the veracity of the applicant’s claims regarding his alleged homosexuality.

7. As discussed with the applicant, the Tribunal is concerned about inconsistencies between his evidence at hearing and in a statutory declaration dated 23 June 2015, which he provided to the Tribunal in the case of his housemate, [Mr A]. In particular, the applicant told the Tribunal that he first met [Mr A] in 2013, when he started living with him and having casual sex, and that he first had homosexual sex in Australia with a man named [Mr B] in 2007. In his interview with the Department, to which the Tribunal had listened, the applicant also said he had his first homosexual relationship in Australia in 2007. By contrast, in the statutory declaration, the applicant stated that he met [Mr A], had sex with him and lived with him for some time in 2004; that he started living with him again in 2008; that they continue to live together in one room and engage in homosexual activities, although they are not in a committed relationship; and that they marched together in the Mardi Gras parade in March 2015.

8. This information was put to the applicant at hearing in accordance with the procedural requirements of section 424AA of the Migration Act and he was invited to provide his comment or response in an agreed timeframe. The Tribunal noted that the relevance of the information was that it raised doubts as to the applicant’s truthfulness about his homosexual relationships in Australia and his general credibility. The applicant responded that there may have been a mistake in his evidence at the hearing about [Mr A] in 2013 and that the evidence in the statutory declaration was true. He attributed the inconsistency to his very weak memory and said he was depressed and unable to think. Asked several times if there was anything else in his evidence that he wished to correct, the applicant said no.

9. However, with regard to the inconsistency in his evidence as to when he first had homosexual sex, the applicant said his evidence at hearing – that the first time was in 2007 – was correct, while the 2004 date in his statutory declaration was a mistake, which he again attributed to depression. As discussed with the applicant, given the multiple inconsistencies and shifts in his evidence, the Tribunal is not satisfied that he has been truthful about his homosexual relationships in Australia. The Tribunal also notes that, while he claimed he met his first sexual partner, [Mr B] in 2007 while working at [Club 1] for about a year (paragraph 19.m), there is no mention of this work in the employment section of his protection visa application form.  Moreover, at no stage in his review process did the applicant raise the issue of depression, its effect on his memory or his ability to give credible evidence. Nor did he provide any medical evidence of such conditions.

10. Given his claim that one of the reasons he came to seek safety in Australia in 2000 was his homosexuality (paragraph 19.c) and his dissatisfaction with being unable to reveal his sexual orientation in Nepal due to fear of rejection, harm and discrimination (paragraph 11), the Tribunal finds it incongruous that the applicant continued to conceal his sexual orientation in Australia for another seven years, ignorant of the fact that homosexuality was legal in Australia. In the Tribunal’s view, if the applicant were genuinely gay, he would have easily been able to find out this publicly available information. The Tribunal is also skeptical that the reason the applicant did not mention his homosexuality in his first protection visa application in 2000 was that he only became aware that sexual orientation could be a ground for protection ‘around 2014’, when he submitted his second protection visa application. 

11. The Tribunal also notes a dissonance between the applicant’s written claims about his homosexual behaviour, in particular regarding his ‘coming out’ and being ‘proud to be gay and be identified as gay’ (at paragraph 13), and his oral evidence at hearing, where he indicates that only he himself and his house mate know he is gay and that he had not mentioned it to other friends, and did not talk about it, including to friends at the church where he has been going weekly for 10 years (paragraph 19.o).

12. The Tribunal has had regard to the photographs of the applicant at Mardi Gras and his [Club] card, which he told the Tribunal he submitted as evidence for his case. However, as discussed with him at hearing, attendance at such events and venues is inconclusive as people, including the Australian Prime Minister, attend the Mardi Gras festival, regardless of their sexual orientation and membership of hotel clubs is open to all.

13. Significantly, as discussed with the applicant, the harm he claims to fear as an alleged homosexual should he return to Nepal – including being treated negatively by his family and society and being forced by his mother to marry a woman – does not rise to the level of significant harm as defined in the legislation. At this point the applicant responded that he ‘may lose his life as well’ and that ‘anybody’ who hates homosexuals might kill him. The Tribunal considers this response opportunistic and vague, as were his responses when asked several times during the hearing about what he feared might happen to him.

14. The Tribunal accepts that conservative attitudes towards homosexuality and marriage persist, particularly in rural locations in Nepal, and homosexuals may experience some level of societal discrimination or pressure. By his own evidence he has had no contact with his family for over two years and the Tribunal is not satisfied that he will be forced against his will into marriage with a woman. The applicant has been resourceful enough to establish himself in Australia, a foreign country with a foreign culture, finding accommodation, employment and friends.

15. Asked why, in light of this and the country information referred to at paragraph 19.w, he would not be able to live safely and openly as a homosexual as he claims he does in Australia, in one of the larger cities in Nepal, such as Kathmandu, the applicant responded that, even if homosexual rights were protected by rules and regulations, these were never followed in Nepal. He said there was still zero tolerance in Nepali society for homosexuals and there were still people who hated homosexuals. As a result, he could lose his life there. As discussed with the applicant, given his evidence that he has no contact with gay people or organisations in Nepal and is not concerned with developments towards homosexual rights there, the Tribunal does not give weight to these assertions in the face of credible information before the Tribunal regarding the progressive laws in place to protect homosexuals in Nepal, which are being actively implemented by the police, and that societal attitudes towards homosexuals, at least in urban areas, appear relatively tolerant and there are support groups and a reasonably active LGBT community in Kathmandu.

    Migration History

16. As discussed with the applicant, the Tribunal’s concerns about his credibility and truthfulness are exacerbated by the fact that he remained in Australia unlawfully for some 8 years after his first protection visa application was refused and his subsequent appeals to the courts and application for Ministerial intervention were unsuccessful. The Tribunal does not accept, as claimed by the applicant, that he had no option but to stay in Australia because of his situation.

17. Notably, the applicant made no comment when asked why the Tribunal should not believe that he may have attended some gay [venues], been to the Mardi Gras parade and may even have had homosexual sex in order to establish a claim for a migration purpose.

18. Considered together, the reasons discussed above lead the Tribunal to conclude that the applicant has not been truthful about the reasons he fears returning to Nepal and that none of his evidence can be relied upon. The Tribunal is not satisfied that, if the applicant returns to Nepal, he will face a real risk of significant harm as a former Maoist or as a homosexual, including being persecuted by the police, the army or the Maoists; facing reprisals, expulsion and serious harm from his family and the community; being physically assaulted or killed by people who hate homosexuals or conservative people, including police.

19. Considering the applicant’s claims individually and cumulatively and having regard to all of the evidence, 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 he will suffer significant harm as defined in subsection 36(2A) of the Act. In the Tribunal’s view, the applicant's claims for protection have been fabricated for the purpose of achieving a migration outcome.

    CONCLUSIONS

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa and finds the requirements of that section are not met.

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) 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.

    Mara Moustafine
    Member

    
    

    ATTACHMENT - RELEVANT LAW

23. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Complementary protection criterion

24. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

25. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

    Credibility