1417313 (Refugee)

[2016] AATA 3119

1417313 (Refugee) [2016] AATA 3119 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417313

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Suhad Kamand

DATE:19 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2016 at 3:08pm

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, a female national of Indonesia, entered Australia [in] January 1997 as the holder of a Tourist subclass 676 visa. She has not departed since that time. She first applied for a protection visa [in] March 1997. The Department refused to grant that visa [in] April 1997. The applicant sought review of that decision by the Refugee Review Tribunal (RRT), differently constituted, [in] May 1997. In a decision dated 11 August 1998 the RRT affirmed the delegate’s decision. The applicant sought judicial review of the RRT decision and, on appeal to the High Court, the matter was remitted to the Tribunal following withdrawal by the Minister. On reconsideration the RRT, differently constituted, on 18 February 2004 again affirmed the decision of the delegate. The applicant sought the Minister’s personal intervention under section 417 of the Act. [In] August 2010 the Minister decided not to consider the request. The applicant again sought judicial review of the second RRT decision affirming the delegate’s refusal decision. The court upheld the RRT’s decision [in] September 2004.

2. The applicant lodged a second application for Australia’s protection [in] September 2013 (Second Application[1]). The Second Application was a valid application as a result of the Federal Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FMCA 215 (see Relevant Law in Annexure 1). The delegate refused to grant the applicant the visa [in] September 2014 and the applicant sought this Tribunal’s review. It is Second Application which is the subject of this decision.

   [1] The above immigration history is detailed in the delegate’s decision record, a copy of which the applicants provided to the Tribunal at folio 24-31, Tribunal file 1417313

3. The applicant was assisted in respect of the review by [name] who is not a registered migration agent.

4. The applicant appeared before the Tribunal on 12 January 2016 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. [Name] was not present during the hearing.

   RELEVANT LAW

5. Relevant law is detailed in Annexure 1.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant was born in [year]. She is a national of Indonesia and of no other country.

7. Her express claims and those arising on the evidence are that she fears harm in Indonesia for reason of the following, including cumulatively: when she left Indonesia in 1997 she was a single mother of [number] children; she had been abandoned by her husband; she was pursued by an army officer of high rank who sought a sexual relationship with her; she fears that, should she return to Indonesia this army man will again pursue her and harm or kill her. She refers to “terrible circumstances” which affected her life in Indonesia and which informed her decision to depart in 1997, including financial hardships. She fears returning to Indonesia after such a long absence and claims that “I have no life in Indonesia and nothing to look forward to”[2]. She also refers to political activities of her former husband and to political opinions imputed to her in Indonesia, and to mistreatment of Chinese Christians generally in Indonesia. These claims are considered in detail below.  

   [2] Folio 26, CLF [number]

   Delegate’s decision

8. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention or under complementary protection. A copy of the delegate’s decision record was provided to the Tribunal by the applicant.

   Issues before the Tribunal

9. As noted above, the applicant previously made an application for a protection visa in 1997 which was assessed under s.36(2)(a).  The application was refused and the Tribunal subsequently affirmed the decision. As the applicant has previously had her claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws and has not left Australia since the final determination of her previous protection visa application, the Tribunal must confine its consideration to whether she satisfies the requirements of ss.36(2)(aa) and (c).

10. Accordingly, the issue in this case is whether, on the evidence before it, the Tribunal is satisfied that there 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 she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Assessment of the applicant’s claimed circumstances – credibility

11. Having had the opportunity to discuss: the applicant’s claims and evidence with her during her Tribunal appearance; and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. While the concerns detailed below are not singularly determinative of the credibility of the applicant’s claims overall, cumulatively, they cast such doubt on her reliability as a truthful witness that the Tribunal cannot be and is not satisfied: that central aspects of the applicant’s circumstances in Indonesia are as she has claimed; and/or that the applicant is a person in respect of whom Australia has protection obligations.

12. The applicant was born in Medan, North Sumatra, Indonesia. She is of Chinese ethnicity and the Christian religion. She departed Indonesia legally, by air, [in] January 1997. She has a [child] born in [year] who resides in Australia[3] and another [child] who is married with children who resides in Medan, Indonesia.

    [3] The applicant informed the Tribunal that her youngest [child] came to Australia on a Student visa, studied [course] and now holds Australian permanent residency. This is consistent with Department records which indicate that the applicant’s [child] was granted a Skilled Independent subclass 189 visa [in] October 2014

13. In her Protection visa application form she states that she left Indonesia due to a “terrible event”. She claims that, some 6 years prior to coming to Australia she was separated from her husband, leaving her with sole responsibility for their [children]; after her departure from Indonesia in 1997, her [children] (born in [year] and [year]) were left in the care of other family members; the money she has made in Australia has been sent to Indonesia to support her [children]; she left Indonesia because “ of terrible circumstances affecting my life, including her capacity to earn a living as a single mother, and “the harassment and threats I received at the hand of my husband’s business partner who was an army man and who wanted to have sexual relationship with me after the company of my husband went bankrupt”[4]. She claims that, at the time she and her husband separated he was a member of the Indonesia Democratic Party.

    [4] Folio 27, CLF [number]

14. Regarding what she fears may happen if she returns to Indonesia she states: she has not returned to Indonesia for some 17 years; she managed to financially support one of her [children] to come to Australia to study [course] in 2009; her other [child] is now married and has [own] family in Indonesia; the applicant “really left Indonesia because of my husband and his political involvement as well as his business and bankruptcy issue”, recalling that they had to sell everything at the time her husband disappeared; at the same time her husband’s business partner would come to her home saying she and her husband are in big trouble as they are communists and they are bankrupt; she borrowed money from friends to come to Australia as she was desperate to give her [children] “proper education, proper food and proper clothes”, so she left her children with her [sibling] and came to Australia. She says that her [child] in Australia continues to need her love and support and as soon as her [child] obtains permanent residence [child] will be able to sponsor the applicant as “I have no life in Indonesia and nothing to look forward to”[5].

    [5] Ibid, folio 26

15. Regarding who she thinks may harm or mistreat her if she returns to Indonesia she says “I have a lot to say if the Department gives me the opportunity to attend an interview”.  Regarding why she thinks she will be harmed she offers that she cannot forget the “terrible accidents” which affected her, including her husband’s harassment, incidents of stone throwing in her village, the burning of her [sibling]’s home; harassment from her husband’s business partner who repeatedly came to her home to tell her she was beautiful and he wants to marry her.

16. She adds that “I asked the Department to release me from [detention] and allow me to stay permanently in Australia because of the length of time I spent here and I will not be in a position to establish myself again and to settle in a country where I have suffered some 17 years ago. I am very scared and I ask for mercy”.[6]

    [6] Ibid, folio 25

17. During her appearance before the Tribunal on 12 January 2016 the Tribunal explored the above claims with her in detail. At the commencement of the hearing the applicant also submitted additional documentation to the Tribunal, comprising various images which she described as: photos of her [children] taken in around 1997, prior to her departure from Indonesia; a photo of herself and her former husband when they married in around July 1984; a photo depicting a deceased man with bruises on his face which she said were photos of her ex-husband taken by her [child] during the Buddhist cremation of his body in around March 2015. She also submitted an untranslated print-out of what she described as a Facebook conversation between herself and her [child]r in Indonesia. Her evidence regarding the content of that conversation is detailed under “Claims regarding an Army officer” below.

    General circumstances in Indonesia prior to departure

18. The applicant’s oral evidence to the Tribunal regarding her general circumstances in Indonesia prior to her departure in 1997 were to the following effect. She married her former husband in around 1984. Their first child was born in their first year of marriage. When that child was [number] months old she became pregnant with her second child. Her [sibling] who was financially well off, and remains so, “adopted” the applicant’s first child and that child lived with the applicant’s [sibling] from the time the child was only a few months old. The applicant had and still has a good relationship with her [sibling] and her first-born [child]. While she does not speak to her [sibling] often, she is in frequent contact with her [child] who now lives with [spouse] and children in Medan, Indonesia.

19. She told the Tribunal that, immediately before leaving Indonesia for Australia she had been living in rented accommodation in Medan with her youngest [child] who was aged around [age] when the applicant departed Indonesia. She had lived alone with that child for around 6 years after the visa applicant’s husband disappeared in around 1991. From that time she lived in around 3 or 4 different rental properties in Medan, living only with her youngest [child]. When she came to Australia in 1997 she left her youngest [child] in the care of the same [sibling] who had adopted her first child.

20. She said that, in addition to the above family members, she has [siblings] living in Indonesia. [number] of her [siblings] live and work in Jakarta and the other lives and works in Medan.

21. She said that, while she lived mainly in Medan, she had also lived in Jakarta for periods of time when she was at school, and also when she and her husband opened a grocery business in Jakarta. They returned to Medan when that business went bankrupt which was in around 1990, around 6 months to a year before her husband left her. She said that she has not had any contact with her former husband since he left her in around 1990. She said that neither she nor her [children] have heard from him or about him since that time, until her [child] found out in around March 2015 that he had died (discussed further below).  

22. The Tribunal accepts the above circumstances as true.

    Husband’s business

23. The applicant told the Tribunal that the grocery business her husband opened in Jakarta went bankrupt in around 1990, causing them financial hardship. This led them to return to Medan where they fought. The applicant’s husband ultimately left her in around 1990 and they had no further contact.

24. Regarding his grocery business, she said that he had the shop in Jakarta for just over a year. The shop of located in a rented premises. When they rented the premises they were told that the market in which it was located would be completed within 2 years. However, the market location was subsequently changed and the building in which the applicant’s husband’s grocery business was located was torn down. This caused them to lose money and the business went bankrupt. It was poor planning. Other than these factors, there is no other reason why the business went bankrupt.

25. Regarding the running of the business, the applicant told the Tribunal that she did not work in the shop as she had to look after their child. Her husband worked in the shop and hired a young assistant who had no ongoing relationship with them after the business went bankrupt. She said that her husband generally looked after the shop alone. When asked expressly if her husband had a business partner she said he did not. This was the only business she identified her husband owning in Indonesia. She did not identify the business being adversely targeted for any political reasons, nor did she identify her husband having a business partner at any time in Indonesia, contradicting other claims she had made regarding her husband being targeted for political reasons and having a business partner who was “an army man”. These claims are detailed further below.

26. The applicant told the Tribunal that, when the business went bankrupt she and her husband took a 3 hour flight back to Medan where they remained together for 6 months to a year before her husband left her. She said that her husband did not work after returning from Jakarta to Medan. They often fought about money.  She said that it was in Medan, while her husband was unemployed, that he started mixing with army people. She said that she had not known him to mix with army people at any time before this, including when running his business in Jakarta

    Army Officer claims

27. The Tribunal put to the applicant that the evidence she has given orally to the Tribunal regarding her husband’s involvement with army personnel, and his grocery business, appears to conflict with claims and evidence she has put in writing regarding her interactions with an army man who harassed and pursued her. Specifically, the Tribunal put to her that she has said that her husband did not have a business partner and that he did not mix with army personnel while running his business in Jakarta, and only started mixing with such people when he returned to Medan and was unemployed. This conflicts with the claim made in her Protection visa application form that the “army man” who pursued, threatened and harassed her for 6 years after her husband’s business went bankrupt was her husband’s business partner[7]. In response the applicant offered only that she only had trouble with the army man in Medan and that she is not sure what her husband did when he was not at home or if he had some business with these people. Her evidence generally did not support the claim made in her protection visa application form that the army man she claims harassed her for 6 years was a business partner of her late husband who harassed and threatened her after their business went bankrupt. 

    [7] Folio 27, CLF [number]

28. The applicant’s claim was that the same “army man” visited her home almost daily for around 6 years after her husband disappeared, to pressure her to have a sexual relationship with him. She said he tried to force her to have sex with him but he was not successful as she threatened to scream if he did anything. She told the Tribunal that she would often leave her door unlocked and that she would invite him into her house even though he threatened to kill her should she not give him what he was demanding. She said that he was a very powerful army man, however she did not know his name or his rank in the army. Despite his claimed power, threats and persistence in pursuing her at every new rental home she moved to, her evidence was that she never had sex with him and he never harmed her in the 6 years that he pursued her, despite her being in the seemingly vulnerable position of living alone with her young [child].

29. She said that, on one occasion he slapped her, but when asked to detail the circumstances leading to the slap she appeared unable to elaborate, offering vague evidence to the effect that she was home alone when he visited and she asked him to come in. When asked why she did that if he was harassing her she said he was an acquaintance of her husband. She said he tried to have sex with her, she refused and he slapped her. When asked to elaborate on the circumstances immediately leading to the slap she said she had made him a drink and was carrying it to him. He approached her and was trying to do the wrong thing. She said she would generally scream and then he would leave and came back another day.  Her evidence did not in fact detail the circumstances leading to the claimed slap, and the Tribunal is not satisfied on the evidence before it that such an incident took place.

30. She also claimed in her protection visa application from that the army man would come to her home saying she and her husbands are in big trouble because they are communist and bankrupt. However, as detailed under “political claims” below, her oral evidence was to the effect that she had never been accused of holding any particular political opinions and she was unaware of any political leanings of her late husband.

31. As explained to the applicant, the Tribunal finds the applicant’s claims that a powerful and connected “army man” threatened her with death and rape and unsuccessfully pursued her for sex for 6 years, without harming her in any way, to be inconsistent with her claims regarding his rank and power, his threats to harm her and his claimed ongoing intention to harm her.

32. Based on all the evidence before it the Tribunal is not satisfied that the applicant was threatened or pursued for sex or otherwise by any army officer in Indonesia at any time or that she faces any risks of harm in connection with that claim should she return to Indonesia. The Tribunal is not satisfied that the applicant faces a real risk of significant harm from any “army man” in Indonesia in the reasonably foreseeable future.  

    Political claims

33. During her Tribunal appearance the Tribunal asked the applicant whether her husband was ever involved or seen to be involved with any political party or movement. She said that she doesn’t know what her husband did outside the home. When asked if she ever suspected that he was involved with any political party or movement she said she did not. When asked if she had ever been accused of having any political opinions or links she said she had not.

1. The Tribunal also discussed with the applicant the delegate’s concerns regarding the apparent evolution of her claims regarding her own and her late husband’s actual and perceived political involvement. Specifically, the Tribunal noted that, the delegate’s decision record, a copy of which she has provided to the Tribunal, indicates that in her first Protection visa application she said that: her husband was a member of the Indonesian Democratic Party which he joined to “attack Golkar”, which made government officials angry, forcing the applicant and her husband to sell all their possessions, including their house and car; her husband went missing and the government officials also wanted to kill her because she and her husband were accused of being communists. The Tribunal continued that the delegate’s decision record also indicates that, during her first appearance before the RRT she said that her husband was a member of the Party of Revolutionary Democracy and was in business with an army man who started coming to her home daily after her husband disappeared to attempt to have a sexual relationship with her. The Tribunal explained to the applicant that  the above suggests that her claims regarding her own and her late husband’s actual and/or perceived political profile have evolved over time, and that they seem inconsistent with her evidence given to the current Tribunal to the effect that she did not know or suspect her husband to be involved with any political party, and that she was never accused of having any political opinions  or links. In response the applicant offered only that she did not have any political affiliations, but she does not know what her husband or his army friend did.

2. Based on the totality of the evidence before it, the Tribunal finds that the applicant’s evidence regarding her own and her husband’s claimed political profiles, actual and imputed, has changed over time. The Tribunal is not satisfied that either the applicant or her former husband had or have in Indonesia, any political profile or suspected links with any particular political opinion. The Tribunal is not satisfied that the applicant faces a real risk of any harm, including significant harm as contemplated by the relevant law, in Indonesia in the reasonably foreseeable future, in connection with any actual or imputed political opinion or involvement.

   Husband’s death

3. At the commencement of the hearing, as detailed above, the applicant submitted to the Tribunal photographs depicting a deceased person which she claimed was her husband. She said that the photos were taken by her eldest [child] at the cremation ceremony held by the applicant’s former husband’s family in Indonesia in around March 2015. She said that her [child] found out about death of the applicant’s former husband as his brother contacted the applicant’s [sibling] and her [sibling] told her [child]. Her [child] then went to look for information at the home of the applicant’s in-laws and was told that the applicant’s former husband had died. This was the first news the applicant and her [children] had of the applicant’s former husband since he disappeared from their lives in 1991.

4. The applicant also submitted to the Tribunal a print-out of what she described was a Facebook conversation between herself in Australia and her [child] in Indonesia regarding the death of her former husband. The Tribunal asked her to read out the parts of that dialogue which she considered relevant to her claims, which the interpreter then interpreted to the Tribunal. In summary, the section the applicant read out was to the effect that her husband died in an alleged motor cycle accident, however, as there was no known fault with the motor cycle, the applicant and her [child] suspect that perhaps he was murdered, and possibly by the army man. She said that this makes her fear that she will be killed too if she returns to Indonesia. When asked what the basis for her own and her [child]’s speculation as to her former husband’s cause of death was, she offered only that there was nothing wrong with his motorcycle so it should not have crashed. She also told the Tribunal that her in-laws have accepted that the cause of death was an accident and have not pursued any other line of inquiry.

5. As discussed with the applicant, in the context of her evidence that neither she or any member of her family had heard anything about the applicant’s former husband since he left the applicant in 1991, the Tribunal considers the applicant’s evidence to the effect that her former husband may have been beaten and/or murdered to be entirely speculative. The Tribunal is not satisfied on the evidence before it that the applicant’s husband’s death’s involved foul play or that his death has any implications for the safety of the applicant should she return to Indonesia. The Tribunal is not satisfied that the applicant faces a real risk or serious harm in Indonesia in connection with her husband’s disappearance and/or death.

   Chinese Christian

6. The applicant has not made specific claims to fear harm as a Chinese Christian in Indonesia, however in her evidence to the department she mentioned that there was some discrimination against Chinese Christians in Indonesia. She told the Tribunal that her only experience of harm as a Christian and/or a Chinese person in Indonesia was in the 1990s. She described a clash between Muslims and Christians in the 1990’s in while stones were thrown at the homes of Christians and her [sibling]’s home being burnt. She said that these were one-off incidents and that neither she nor any of her family members experienced any other harm in Indonesia in connection with being either Chinese and/or Christian. She did not claim to have any fears of harm in Indonesia in connection with being either Chinese or Christian, and the Tribunal is not satisfied, on the evidence before it, that she faces a real chance of harm rising to the level of significant harm, as contemplated by the relevant law, in connection with her Chinese ethnicity or her Christian religion, even when considered together with what the Tribunal accepts of the balance of her circumstances.

   Applicant’s general circumstances in Indonesia

7. Based on all the evidence before it, the Tribunal accepts that the applicant experienced financial hardship in Indonesia prior to her departure for Australia in 1997. The Tribunal accepts that those hardships were shaped by multiple factors, including the bankruptcy of her husband’s business in 1990 and her husband abandoning her in 1991. The applicant’s evidence was that she worked in sales for around 6 years in Indonesia before coming to Australia to support herself and her [children]. Her evidence was to the effect that she managed to support herself and her youngest [child] in rental accommodation in Indonesia for around 6 years before coming to Australia. Her evidence was also that her [child] was “adopted” by her [sibling] who was well off, leaving the applicant, effectively, with only her younger [child] to support financially.

8. The Tribunal accepts that, since coming to Australia in 1997 the applicant has worked towards giving her children a better life, and that she has succeeded in financially supporting her youngest [child] to study in Australia and to achieve permanent residency as a Skilled Independent visa holder.

9. The Tribunal accepts that the applicant has made a life for herself in Australia and that she is anxious about her prospects should she return to Indonesia after an absence of around 18 years. The Tribunal accepts that she feels that he has no life in Indonesia and that she has established her life in Australia over her extensive presence here. However, the applicant also told the Tribunal that she has siblings who continue to reside in Indonesia and that her eldest [child], with whom she has maintained a close bond also continues to reside in Indonesia. She also revealed that she remains willing and able to work, and that she has a work history spanning around 6 years in Indonesia and around 18 years in Australia. She has also acquired English language skills while in Australia. Given her skills, employment history and family networks in Indonesia, the Tribunal is not satisfied that the applicant will suffer financial hardship which rises to the level of significant harm as contemplated by the relevant law.

10. While noting that the applicant’s many years in Australia has resulted in significant emotional and other ties here, as explained to the applicant, the task of the Tribunal is assess whether she faces a real risk of harm which rises to the level of significant harm as contemplated by the relevant law should she return to Indonesia. The Tribunal explained that a real risk means a substantial chance, as distinct from a remote or far-fetched possibility.[8]

    [8] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.

11. On the totality of the evidence before it, and for the reasons given above, the Tribunal is not satisfied that the applicant faces real risk of being arbitrarily deprived of their life or of the death penalty being carried out on her for any of the reasons claimed.

12. Regarding torture, cruel or inhuman treatment or punishment and degrading treatment or punishment, the Tribunal explained that those types of harm require an element of intention to harm a person. The Tribunal is not satisfied of the truth of the applicant’s claims to have faced any harm in the past, or to face a real risk of any harm in the future, from an army man who pursued her for six years. Nor is the Tribunal satisfied that the applicant has any political, ethnic, religious or other profile giving rise to a real chance of any intention to harm the applicant in any way. 

13. Taking into account all the evidence before it, the Tribunal is not satisfied that the applicant faces, in Indonesia, a real risk of: being be arbitrarily deprived of her life; or the death penalty will being carried out on her; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Indonesia, she faces a real risk of significant harm.

14. 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. It follows that she is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As she does not satisfy the criteria for a protection visa, she cannot be granted the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Suhad Kamand
    Member

    
    

    ANNEXURE 1

    RELEVANT LAW

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

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

18. The effect of the Full Federal Court's decision in SGGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 is to confine the bar on making a further application for a protection visa contained in s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. The court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court's reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application.

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

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

20. 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’).

    Complementary protection criterion

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

22. Torture is defined as “an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)      for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)      for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)      for the purpose of intimidating or coercing the person or a third person; or

    (d)      for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)      for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

23. “Cruel or inhuman treatment or punishment” is denied as “an act or omission by which:

    (a)      severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)      pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)      that is not inconsistent with Article 7 of the Covenant; or

    (d)      arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

24. “Degrading treatment or punishment” is defined as “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)      that is not inconsistent with Article 7 of the Covenant; or

    (b)      that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

26. 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.

27. 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.