1416610 (Refugee)

[2016] AATA 3537

1416610 (Refugee) [2016] AATA 3537 (7 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416610

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Fraser Syme

DATE:7 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 07 March 2016 at 1:33pm

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 [age] man from Bangladesh. According to the applicant, he and his family are supporters of the Bangladesh National Party (“BNP”). In January 2013, people from the Awami League (“AL”) falsely accused him of murdering Mr F and of fighting with the police. He left Bangladesh to evade arrest. He fears if he returns to Bangladesh he will be arrested on those false accusations and will face an unfair trial due to his support for the BNP.

2. The applicant applied to this Tribunal [in] October 2014 for review of a decision made by a delegate of the Minister for Immigration [in] September 2014 to refuse to grant him a Protection visa under s.65 of the Migration Act (1956). The applicant included the delegate’s decision with the review application.

3. This review application raises the following issues for the Tribunal to determine:

   a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Bangladesh.

   b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Bangladesh.

   HISTORY OF THE APPLICATION FOR REVIEW

4. The applicant entered Australia as an unlawful maritime arrival in February 2013. He applied to the Department of Immigration for a protection visa in June 2013. The delegate conducted an interview with the applicant in August 2014. The Tribunal has listened to a recording of that interview. The applicant provided to the delegate his birth certificate, and court documents as well as the operation guidance note for Bangladesh from the [country] Border Protection Agency.

5. In the decision under review, the delegate found the applicant’s claims were not credible and rejected them entirely. The delegate therefore was not satisfied the applicant faced a real chance of serious or significant harm.

6. The applicant appeared before the Tribunal on 30 September 2015 to give evidence and present arguments. The hearing was conducted with the assistance of a telephone interpreter in the Bengali and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing via telephone and provided written submissions prior to and after the hearing. The applicant provided to the Tribunal a newspaper report regarding comments made by the Prime Minister of Bangladesh towards asylum seekers from Bangladesh as well as some medical records and his brother’s police ID card. The Tribunal has had regard to those submissions and documents, which are set out where relevant in more detail below.

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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. DFAT have published a country assessment report for Bangladesh, which the Tribunal has had regard to.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. In making its findings, the Tribunal is mindful the applicant was [age] at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearing was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The applicant has claimed he suffers from [condition], he said he had a headache and his hands and legs were shaking during the hearing. The only medical records he provided relate to an eye test. On the evidence before it, the Tribunal does not consider the applicant has any medical condition which materially affected his ability to participate in the hearing in a meaningful way.  

15. The Tribunal finds the applicant is a national of Bangladesh. He provided a copy of his Bengali passport. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Bangladesh for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, the place he resided prior to departing Bangladesh, to be his home region.

16. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

17. The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.

18. During the hearing, the Tribunal put to the applicant that his credibility was an issue. As noted above, the applicant has claimed he suffers from [condition], but has only provided an eye test. The Tribunal does not consider the applicant has any medical condition which satisfactorily explains the inconsistencies and implausibilities in his evidence, which are set out in more detail below. In the post hearing submission, the migration agent submitted the inconsistencies in the applicant’s evidence did not support a finding of adverse credibility when having regard to the department’s credibility guidelines in determining refugee status.

    Well-founded fear of persecution

19. In summary, the applicant’s claims are that members of AL falsely accused him of the murder of Mr F. This was because he and other members of his family support the BNP. He first became involved with the BNP though its student wing, Chhatra Dal (“CD”). His [relative] was a long standing BNP village [leader]. After he left Bangladesh, additional false charges were made against him regarding fighting with the police. He further claims his father was beaten by the Bengali authorities when they were looking for the applicant.

20. He claims he fears serious harm from members of the AL for reason of his political opinion in support of the BNP. He further fears harm from the Bangladesh authorities because he applied for asylum overseas.

    Political opinion

21. During the hearing, the Tribunal put to the applicant it had concerns regarding the credibility of some of his claims, including:

22. Membership of CL/CD: The Tribunal queried if the applicant’s family were supporters of BNP, why did he not join CD earlier. He variously explained that was because the family of his the girlfriend supported AL. So he first joined the student wing of AL, Chhatra League (“CL”) when he was [age]. He then claimed he first joined CL when he was in year [number] at school, making him about [age] and he switched to join CD when he was about [age]. He further stated he met his girlfriend when he was at school and joined CL under her influence.

23. His account at the hearing is materially different to his statutory declaration to the Tribunal dated September 2015 wherein he stated he began attending AL activities at around the age of [age]. By this stage, he had left school and began work as a [occupation]. It was only then did he meet his girlfriend (not that he met her at school). He continued to attend AL activities with the family of his girlfriend for the next 4-5 years. He ended his relationship with his girlfriend because of the negative impact his relationship was having on his BNP supporter family and in particular his [relative] (a BNP village [leader]). It was only after ending his relationship did he join CD at the behest of his father. On those dates, he would have been approximately [age] at that juncture. The Tribunal queried why a man of approximately [age] who had left school for a few years would join the student wing of a political party. The Tribunal queried too why his statement of claims provided to the delegate referred only to his being involved with the BNP and made no reference to his being involved with CL or CD. The Tribunal noted that during his interview with the delegate, he did refer to being in CL. In his post hearing submission, the migration agent states the applicant instructed him the applicant knew his girlfriend at school and joined CL to befriend her, but they did not commence a relationship until after he left school.

24. When discussing his claims regarding CD and CL, the applicant claimed his statutory declaration and his account at the hearing were not inconsistent. He further claimed the hearing interpreter misinterpreted some of his evidence, but later conceded the interpreter had not made any error. He also claimed the interpreter during with his interview with the delegate and the interpreter who assisted him to make his initial statement of claims also made interpreting errors. On the evidence before it, the Tribunal is not satisfied either the interpreter who conducted his interview with the delegate or the interpreter who assisted in the preparation of his statement of claims made any interpreting error. Rather, the Tribunal considers the applicant has sought to blame those interpreters for inconsistencies in his own evidence in the same way he attempted to blame the hearing interpreter.  The applicant further sought to explain the inconsistencies in his evidence by variously saying he did not know what to say (the Tribunal reminded him he need only tell it what actually happened), he was under stress (the Tribunal offered him a brief pause to regain his thoughts). He finally responded he did not know what further comment to make. 

25. The Tribunal discussed with the applicant information from the DFAT country report which indicates there is violence between followers of the BNP and AL. He had no comment to that. The migration agent provided extracts of country information reports regarding human rights conditions in Bangladesh but the submissions do not indicate how those reports are relevant to the claims of the applicant.

26. The Tribunal considers if the applicant’s family were such staunch supporters of the BNP that he would join the student wing of his family’s political opponent. It further considers it implausible he would join a student wing when he was [age] and already working for about [number] years. The Tribunal considers the inconsistent and implausible evidence of the applicant about his claimed roles with CL and CD weigh in favour of finding the applicant was not a credible witness.

27. Role in CD/BNP and his profile: When asked about his role with CD/BNP, the applicant gave vague evidence about regularly helping in his [relative]’s office. He further stated he never signed any forms, he never paid any fee to join any of CL, CD or BNP and was never issued any membership card. He said political organisations in a village as small as his did not have such things. The Tribunal noted his statutory declaration claimed he joined CD, the student wing of BNP, which is different to his going to his [relative’s] office to help. He explained he was not a member, but he helped with CD matters in his [relative’s] office.

28. The Tribunal queried why the AL would target someone with his low level profile in the BNP. He explained while he was with his girlfriend, he was involved with AL and CD. After he left his girlfriend, he returned to the party his family supported, BNP. After he did that, AL supporters urged him to return to the AL.  Because he refused, he was targeted as a means to put pressure on other family members, particularly his [relative]. The migration agent pressed the same submission. The AL would consider it a coup to be able to persuade a member of a BNP family to join AL. The Tribunal discussed with the applicant the period during which he was with his girlfriend he was still a child and unable to vote. He claimed all schoolchildren still support different political parties in Bangladesh. The Tribunal noted that is inconsistent with his claims he did not join CL until after he met his girlfriend and had already left school. He did not join CD until he broke up with her 4-5 years later (as set out above).

29. The applicant claimed his father was under constant pressure by supporters of AL, so much that he was unable to leave his home to go shopping and false law cases had been laid against his father too, his arm was broken and a friend was killed. The Tribunal asked when did the applicant learn of these events. He replied he had known of these events all along and partly raised that with the delegate. The Tribunal put to the applicant it was concerned he was exaggerating his evidence and was concerned he had not raised claims about law suits with his original statement of claims or in his statutory declaration of September 2015. He only made reference to an attack on his father which occurred after the applicant had departed Bangladesh. The Tribunal was concerned the applicant was making new claims. He explained no one asked him about his father having law suits against him, so he forgot to mention it. The Tribunal is not persuaded by that explanation. The Tribunal rejects the applicant’s father was under pressure from supporters of AL, had a false law case against him or suffered any harm before or after the applicant departed Bangladesh. Due to the inconsistencies in his not raising claims regarding his father earlier and his non-persuasive explanation for that, the Tribunal considers the applicant has fabricated the claims of harm to his father. The Tribunal considers this to be further reason weighing in favour of finding the applicant was not a credible witness.

30. Elsewhere in the hearing, when discussing his [relative]’s conversion to the AL (which the Tribunal addresses below), the applicant claimed AL supporters had also extorted money from his father. The Tribunal noted this was another instance of the applicant making new claims at the hearing. The applicant responded he may have forgotten because he was stressed. The Tribunal noted it was querying why he did not include claims regarding court cases and extortion when making his statutory declaration in September 2015. He replied he answered the questions he was asked when he prepared that statutory declaration. The Tribunal noted it too did not ask him about court cases or extortion, he volunteered that information to the Tribunal, so it did not consider his explanation persuasive. The Tribunal rejects too the applicant’s father was extorted. Due to the inconsistencies in his not raising claims regarding his father earlier and his non-persuasive explanation for that, the Tribunal considers the applicant has fabricated the claims of extortion of his father

31. The Tribunal considers it implausible the AL would target someone with such a low profile as the applicant in such an extreme way of pressing false murder charges against him. The Tribunal further considers the vague evidence he gave about his role with CD/BNP undermines the credibility of his claims he had any role with those organisations. The Tribunal further considers the applicant provided exaggerated claims and provided no persuasive explanation why he did not raise claims of false cases against his father with his original statement of claims or of false charges and extortion against his father in his statutory declaration of September 2015. These matters all weigh in favour of finding the applicant was not a credible witness. The Tribunal considers the applicant fabricated the claims of AL harming his [relative] (which the Tribunal discusses below) and his father so as to manufacture reasons why he too would be target by supporters of AL and the Tribunal considers these to be further reasons for the Tribunal to find the applicant was not a credible witness.

1. His [relative]’s conversion to AL: The applicant explained his [relative] was a BNP village [leader] at the time the false murder charges were made against the applicant, but as the BNP was in opposition, his [relative] had little power. He further claimed members of AL had put pressure on his [relative] (who was the BNP village [leader]) to join the AL and had made false charges against the [relative] too. He said the false law suits were brought against his [relative] about 6 months before the hearing and he found out about it around five months before the hearing.

2. The Tribunal noted his statutory declaration of September 2015 referred only to his [relative] being threatened and made no reference to there being false law suits against his [relative] .  He replied his [relative]had since joined AL and gone overseas. Elsewhere in the hearing he claimed he was unsure of the circumstances of his[relative], but later in the hearing stated he knew his [relative] had joined AL. The Tribunal considers the applicant providing inconsistent evidence regarding such a material matter as his [relative]’s converting to AL and there being false court cases against his [relative] are further reason to find the applicant was not a credible witness. Due to the inconsistencies in his evidence the Tribunal rejects the applicant’s [relative] was a BNP village [leader] and rejects the applicant’s [relative] has converted to be a supporter of AL due pressure being put upon the [relative]. The Tribunal again considers the applicant’s inconsistent evidence regarding his [relative] to weigh in favour of finding the applicant was not a credible witness.

3. Court cases: The applicant told the Tribunal he did not know Mr F. He knew one of his co-accused, Mr S – but the applicant was unsure whether Mr S was a co-accused in the false murder of Mr F or a co-accused in the false charges of fighting with the police. The applicant confirmed Mr S is his brother who went to [country] many years prior. He noted both he and his brother were out of Bangladesh at the time of the second charges.

4. The Tribunal noted it was unclear on the face of the court documents he provided which charges the documents related to. It noted there was a date in January 2013, which corresponds with the timing of the claimed murder of Mr F. It noted one of the co-accused was discharged and queried if the applicant had remained in Bangladesh whether he too could have achieved the same outcome. As the charges must also have been falsely laid against that co-accused in order for that person to be discharged after the Court had carried out its duty to examine the evidence – particularly as the evidence of the applicant is the first incident report was provided by supporters of the AL for political reasons.

5. The Tribunal put to the applicant the court documents tend to undermine rather than support his claims. The Tribunal discussed with the applicant country information from the DFAT report that there is high prevalence of fraudulent documents in Bangladesh. The applicant responded the document is genuine and has the contact details of the judge. The Tribunal noted that was not correct. It only had the initials [letters] and details of an advocate/notary. The Tribunal suggested [letters] may stand for [court official]. The applicant said his brother may be able to get other court documents. The Tribunal noted the court documents were from events two years ago and the applicant could have obtained any other court documents prior to the Tribunal hearing. He then stated he would only be providing copies of the court documents he had already provided. The migration agent agreed to clarify with the applicant after the hearing whether he wished to provide any other court documents. However his post hearing submission is silent on that issue and did not attach any additional court documents. As at the time of this decision, the applicant has not provided any additional court documents either.

6. The Tribunal queried if the reason for the second charges related to the applicant fighting with police, why would there need to be an incident report from supporters of AL to instigate those charges. The police would be able to bring the charges themselves. The applicant replied he was outside of Bangladesh when that happened, so he does not know. He is relying on what he was told by other people. The Tribunal explained its concern was there appeared to be no role for anyone from the AL to make a complaint when the charges relate to a fight between the applicant and the police. He replied perhaps the AL supporters wished to cause trouble to him. The applicant agreed it made no sense for the police not to do the charges themselves. The Tribunal commented that was a reason for it to doubt the charges were genuine.

7. The Tribunal discussed with the applicant information from the DFAT country report which indicates there is corruption in the Bangladesh court system and instances of persons laying false charges. He had no comment about that.

8. The Tribunal queried if the goal of the AL supporters was to get the applicant to join AL, how would having him charged for murder assist them to achieve that goal. The applicant replied he also did not understand why the AL did this. The Tribunal queried too if the goal of the AL supporters was to put pressure on the applicant’s family, why lay false charges against him and not directly against his father or [relative] or other family members. It was at this point the applicant made the claims discussed above regarding false charges had been made also against his father and [relative], which for the reasons set out above, the Tribunal has rejected as fabricated. In the post-hearing submission, the migration agent states he is instructed by the applicant that the applicant did not intend to raise forcing him to join AL as a motivation for the supporters of AL to target him. The motivation was to cause trouble to the applicant’s family. The Tribunal is not persuaded by the applicant’s explanation set out in the migration agent’s submissions. The Tribunal considers this another instance of the applicant changing his claims once a difficulty in his evidence was put to him. This is another occasion of the applicant providing inconsistent evidence which weighs in favour of the Tribunal finding he was not a credible witness. 

9. The Tribunal rejects that the court documents are genuine documents. The Tribunal reaches that conclusion relying on the country information about the prevalence of fraudulent documents in Bangladesh and the insistence of the applicant the court documents would have contact details of the presiding judge, but the documents do not bear any such details. The Tribunal places weight too on the implausibility someone with the profile of the applicant would be targeted for harm by supporters of the AL in such an extreme way as to raise false murder charges against him.  On the basis of the cumulative effect of: the inconsistencies and implausibilities in the evidence of the applicant; his non-persuasive explanations for the inconsistencies and the implausibilities; and his providing non-genuine documents to support his claims, the Tribunal finds the applicant has fabricated his claims he was falsely accused of the murder of Mr F or of fighting with the police. The Tribunal considers the applicant has fabricated these claims in order to create a profile for upon which to apply for protection.

10. The Tribunal rejects that the applicant was a member or supporter of CL, CD or BNP. It rejects the applicant’s family including his [relative] are supporters of BNP or that his [relative] was a BNP village [leader]. The Tribunal rejects the applicant has been accused of the murder of Mr F or of fighting with the police. It follows the Tribunal rejects the applicant faces any outstanding warrant if he returns to Bangladesh in relation to either of those charges. As the Tribunal has rejected the applicant’s claims regarding the past political profile of him or his family, the Tribunal is not satisfied the applicant has a political profile which would bring him to the attention of supporters of AL or the Bangladesh authorities. While the Tribunal is mindful of the country information provided by the migration agent an in the DFAT report regarding political violence in Bangladesh, the Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will face persecution for reason of his political opinion either from supporters of AL or the Bangladesh authorities now or in the reasonable foreseeable future if he returns to Bangladesh.  

    Asylum seeker

11. The applicant provided a news report on comments of the prime minister of Bangladesh in May 2015 stating Bangladeshis who illegally migrated to other countries were ‘mentally sick’, ‘tarnishing the international reputation of Bangladesh’ and along with the middlemen, ‘should be punished’. In the post-hearing submission, the migration agent states the comments of the Bangladesh prime minister understandably cause a fear of persecution in the mind of the applicant. The evidence before the Tribunal does not suggest any failed asylum seeker returnees to Bangladesh have been punished by the Bangladeshi authorities. The Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will face persecution as a failed asylum seeker now or in the reasonably foreseeable future if he returns to Bangladesh.

12. For the sake of completeness the Tribunal notes, during the hearing, the applicant raised the decision of the Australian Cricket Board in September 2015 to abandon a scheduled tour by the Australian cricket team to Bangladesh in October 2015 as something which supported his claims he would be harmed if he returned to Bangladesh. The Tribunal noted the profile of members of the Australian cricket team was very different to the profile of the applicant and it did not consider the decision to abandon the cricket tour was relevant to his claims in any material way. The Tribunal discussed too whether it was reasonable for the applicant to relocate to Chittagong to avoid any harm from local supporters of AL in his home village. However given the findings above regarding the Tribunal rejecting the applicant had any well-founded fear due to his political opinion and/or as a failed asylum seeker, it is unnecessary for the Tribunal to make any findings regarding relocation.

13. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal found the applicant fabricated his claims regarding his political opinion and that he is facing false charges. The Tribunal is not satisfied the applicant has a well-founded fear of persecution from the supporters of AL or from the Bangladesh authorities for reason of his political opinion, outstanding warrants, because he applied for asylum or any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to Bangladesh. Therefore, the applicant does not satisfy the requirements of s.36(2)(a). 

14. The Tribunal considers the applicant’s claims further below in relation to complementary protection.

    Real risk of significant harm

15. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances.  

16. On the evidence before it, the Tribunal considered there to be only a remote or speculative and therefore not a real risk that applicant will suffer any significant harm from supporters of AL or the Bangladesh authorities, if he is removed to Bangladesh. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm.

17. The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

18. Therefore the applicant does not meet the requirements of s.36(2)(aa).

    CONCLUSIONS

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.

    Fraser Syme
    Member