1417348 (Refugee)

[2016] AATA 3772

1417348 (Refugee) [2016] AATA 3772 (21 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417348

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:21 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 April 2016 at 4:17pm

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 [name] claims she is a citizen of the People’s Republic of China (China) and is now [age]. She first came to Australia [in] March 2008 as a student. She held a series of student visas from February 2008 until July 2012.

2. The applicant applied for a Protection visa [in] March 2014. She provided a copy of her Chinese passport and a typewritten English language statement signed by the applicant [in] March 2014.

3. [In] September 2014 the delegate of the Minister for Immigration refused to grant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision and it was made [in] October 2014. The applicant gave a copy of the delegate’s refusal decision to the Tribunal.

5. The applicant first appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The hearing was adjourned to arrange a different interpreter. The Tribunal hearing resumed on 20 April 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant gave evidence about her background and family in China, her circumstances in Australia and her claims for protection.

   CONSIDERATION

7. The issues in this case are whether the applicant is a refugee and if not, whether she is entitled to complementary protection.

8. The law upon which the findings are based is set out in Attachment A.

   Background

9. The applicant is [age] and is unmarried. She was born in [District 1], Dalian City, Liaoning Province, China. She attended primary and high school in Dalian and came to [Australia] as a student in 2008. Her parents are living in China and she does not have any siblings.

10. The applicant claims she was sexually assaulted by a classmate in July 2007 and that her classmate’s family were powerful in local government and well connected. She claimed she became pregnant in 2007 and had an abortion.

11. She stated that her family arranged for her to leave China and come to Australia as a student in 2008 to make a fresh start.

12. She claimed that her classmate’s family wanted her to marry her classmate and that they gave her family money but later demanded the return of an amount of money. Her father assaulted her classmate’s father and was detained for a month before being released on the payment of a fine. She claimed her parents were demoted as a result of the dispute.

13. She fears if she returns to China she will either be pressured to marry her classmate or will have a difficult time because of her classmate’s family and their influence.

    What is the country of reference?

14. The applicant provided a copy of her Chinese passport to the Department. On the basis of the documents provided to the Department and the oral evidence given at the Tribunal hearing the Tribunal accepts that the applicant is a citizen of China and that China is the receiving country for the purposes of s.36(2)(aa).

    What are the applicant’s claims?

15. The applicant provided a typewritten English language statement to the Department when she applied for a protection visa. The statement set out her claims. She told the Tribunal that a migration agent had assisted her with her application form and statement. When asked how the statement was produced she stated that she had provided a Chinese language statement to her agent and the agent used that statement to produce her typewritten English language statement. She told the Tribunal that her agent had read the statement to her in Mandarin and the applicant was satisfied it was more or less accurate.

16. The applicant attended an interview with the delegate [in] September 2014. The delegate discussed the claims made at the interview in his decision, a copy of which was given to the Tribunal by the applicant.

17. The applicant attended a hearing at the Tribunal and gave evidence regarding her claims for protection with the assistance of a Mandarin interpreter.

18. In her written and oral evidence the applicant stated and the Tribunal accepts that that she was born and grew up in [District 1] of Dalian City, Liaoning Province. She attended primary school and high school up to Yr. [number] in the local schools near her home in [District 1].

    Claims of Sexual Assault

19. The applicant claimed in her written and oral evidence that she was sexually assaulted by a classmate, [Mr A] in July 2007. She stated that one afternoon she and some of her friends were studying at [Mr A]’s house and that when they left the house in the afternoon [Mr A] told her she had left her mobile telephone at his home.  When she returned on her own to pick up the phone he locked the door and sexually assaulted her. She claimed that no one else was in the house and she was not able to call for help.

20. She claimed that she did not tell her parents or complain to police immediately after the claimed assault. She also claimed that she had another boyfriend at this stage but they later broke up.

21. The applicant claimed in writing that she became depressed and eventually told her parents about the sexual assault and as result her father confronted [Mr A]’s father. [Mr A]’s father suggested that the couple get married but the applicant’s father was angry and left without resolving the issue.

22. In her written claims and oral evidence she claimed that she then discovered that she had become pregnant as a result of this sexual contact. She stated that her parents arranged an abortion at a private hospital outside [District 1].

23. The Tribunal accepts, for the purpose of this decision, that the applicant was sexually assaulted by a classmate [Mr A] in July 2007. It also accepts that she was pregnant in 2007 and that her parents arranged an abortion in a private hospital outside Dalian.

    Arrangements to study overseas

24. In her written claims she stated that in 2007 her parents decided that she should go overseas as a student to make a fresh start. She claimed they sold their house and moved to a new place in a remote area to fund her travel and education expenses.

25. At the interview with the delegate the applicant stated that her parents had sold their house for about 800,000RMB to fund her education expenses. It was put to her that in her student visa application her parents had stated they had borrowed 450,000RMB to fund her estimated education expenses of 294,400 RMB. She stated that her parents had sold their house but had to repay the mortgage and had borrowed extra to fund her education expenses.

26. At the interview she told the delegate her mother had given her $5000AUD when she first came to Australia and that she had been working casually to support herself in Australia since she ended her studies.

27. At the Tribunal hearing she stated that her mother had made a careful calculation of her estimated expenses in Australia for the first year and a half and had given her that money but had expected the applicant to fund the rest of her studies by working in Australia and paying those expenses herself.

28. At the Tribunal hearing the applicant first stated that she and her parents had lived in the family home in [District 1] and that her parents continued to live in the same home in which she grew up in. Later in the hearing the Tribunal put it to her that she had claimed in writing and told the delegate that her parents had sold their home to fund her travel and education expenses. She stated that her parents had sold the family home but moved to their investment apartment which was in the same locality as the family home and this is what she had meant earlier in the hearing.

29. The Tribunal does not accept that the applicant’s parents sold their family home and moved to a remote place or another locality to fund her education and travel expenses. The Tribunal considers that her parents obtained a loan to fund her travel and education expenses. It considers that the claim that the family sold their home and moved to another location was contrived to give the impression that her family’s situation was seriously affected by the sexual assault on her and the consequent dispute with [Mr A]’s family in 2007.

    Payment to the applicant’s family-200,000 RMB

30. The applicant claimed in her written statement that [Mr A]’s family learnt of her plans to study overseas and gave her 200,000RMB and told her to study hard and return to China after several years to marry [Mr A]. Her father accepted the money as compensation for her suffering and she came to Australia in March 2008. She also explained that [Mr A]’s father was a public official in [District 1] and had a lot of local power. He was one step lower than the [official] of the district.

31. She gave evidence to the Tribunal that about one month after the assault she complained to the local police about the sexual assault. She stated that the police had questioned [Mr A] and after the questioning his family had paid her family 200,000RMB to keep quiet about the claimed sexual assault. She stated if the allegation had become public that [Mr A]’s schooling and his future would have been affected. She told the Tribunal she withdrew the police complaint after the payment of the money.

32. The Tribunal accepts that the applicant did not initially complain to the local police about the sexual assault but about one month later she complained to police. It accepts that her family received a payment of 200,000RMB from [Mr A]’s family and that she then withdrew the complaint.

    Dispute with [Mr A]’s family

33. The applicant provided evidence about a dispute between her family and [Mr A]’s family which involved a claim for repayment of money to [Mr A]’s family. The Tribunal found the applicant’s evidence on this issue to be unreliable and lacked credibility.

34. The applicant stated at the hearing that after she left to go overseas [Mr A]’s family demanded that her family pay the sum of 500,000 RMB to them because they realised the applicant had gone overseas and did not intend to return to China. The demand for money created problems for her family.

35. She claimed that she lost contact with [Mr A] when she was in Australia because she changed her telephone number. She claimed she told her parents in 2011 she wanted to visit them in China but they told her not to return because they still had problems with [Mr A]’s family. [Mr A] had told them she had to return and marry him or her father would have to repay 500,000RMB otherwise her parents would be charged with fraud because they had not kept their promise.

36. In her earlier written claims she stated that her father first had an argument with [Mr A]’s father when her father confronted him about the sexual assault in 2007. She also stated in 2011 her father had some physical conflict with [Mr A]’s father during an argument. The police arrested the applicant’s father for an “intentional physical attack”; he was detained for one month and only released after her mother paid a 10,000RMB fine. Her father also lost his job. The police asked her family to pay [Mr A]’s medical expenses and the 500,000 RMB owing and her mother paid 50,000RMB and promised to pay the rest.

37. At the hearing the applicant claimed that her father had assaulted [Mr A]’s father on 2 occasions; once in 2007 and once between 2008 and 2009. She stated he had been arrested and detained for one month and that her mother had to pay 10,000 RMB before he was released. She also claimed that her parents were demoted from their jobs as a result of [Mr A]’s father’s influence. She claimed at hearing that her family are still being pursued for the 500,000 RMB [Mr A]’s family claim is still owed to them.

38. She was unable to explain discrepancy between the events and dates given in her written claims and at hearing.

39. The Tribunal accepts that the applicant’s family and [Mr A]’s family have a continuing dispute involving payment of a sum of money. It accepts that the applicant’s father was arrested and detained for assault and that he was released after the payment of a 10,000RMB fine. However, the Tribunal does not accept that the amount claimed (500,000RMB) is related to the earlier payment made to the applicant’s family (200,000RMB) or to the claimed sexual assault on the applicant.

40. Firstly it is a different amount of money.

41. Secondly the applicant could not give a plausible reason why [Mr A]’s family were demanding that the sum of 500,000RMB be paid to them. She stated that once she went overseas they realised she was no longer a threat to them and demanded repayment. However it was pointed out that in her written statement she claimed they were aware she was going overseas as a student for a number of years and they gave the money with that knowledge. She claimed that once they were aware of her intention to remain overseas they demanded re-payment however it is not clear how they would become aware of that intention as her intention in 2008 was to study overseas for a number of years. Whether her father assaulted [Mr A]’s father in 2008/2009 as claimed at hearing or in 2011 as set out in the written claims there is no plausible reason given as why they would suddenly change their attitude to the original payment of 200,000RMB said to be money paid to keep the applicant’s family to keep quiet about the claims of sexual assault.

42. The Tribunal does not accept the reasons given by the applicant for the families’ dispute. It finds she has not given a complete and truthful account of the reason for her family’s dispute with [Mr A]’s family.  It does not accept it is related to the applicant’s claim of sexual assault.

    Applicant’s studies in Australia

43. The applicant gave evidence at the Tribunal hearing that when she first arrived in Australia she attempted a 6 month English language course. She then started Yr. [number] studies at a private college in 2008 but did not complete the year due to financial problems. She changed college and commenced Yr. [number] studies in 2009 but did not complete those studies due to financial problems. After she withdrew she started to work in the restaurant industry and has worked in that industry since she withdrew from Yr. [number] studies.

44. She stated that it was her mother’s intention that she would fund the first year or year and a half of her studies but that the applicant would work and pay her own expenses from that time.

45. The Tribunal accepts that the applicant made some attempts at high school studies when she first arrived in Australia but has, since 2009, been working in the restaurant industry. After her last student visa expired she did not have a visa until she applied for a bridging visa in March 2014.

46. The applicant stated that she had not applied for a protection visa until March 2014 because she was not aware that she was able to apply for protection until she spoke to a friend who advised her to apply. Whilst this may be true, the Tribunal does not consider the delay is consistent with a genuine fear of persecution but more consistent with an intention to achieve a permanent migration outcome in Australia. The applicant stated at hearing that she does not wish to return to China, she is used to living in Australia and prefers the environment.

    Attendance at a Christian Church in Australia

47. In her written claims the applicant had stated that initially she felt very lonely and depressed in Australia and developed an [illness]. She subsequently became close to a fellow student who attended a Christian church in Australia. The applicant went to church with her friend and she found the other members of the congregation to be very sincere and friendly. Her friend helped her with loneliness and depression and she participated in many church activities.

48. At hearing the Tribunal asked the applicant if there were any other reasons she feared returning to China. It noted that she had mentioned in her written claims that she had a friend who was a Christian and that she had attended church with her friend in Australia. The applicant stated she had been to church but was not ready to be a Christian.

    Situation for the applicant if she returns to China.

49. In her written claims the applicant stated that she feared returning to China because she would be forced to marry [Mr A] and her life would be impossibly hard.

50. At the Tribunal hearing she stated that her family continued to have problems because of [Mr A]’s family. She stated that his family operate “above board” and “under board”. The Tribunal understood her to mean by this that that [Mr A]’s father was a public official but also had engaged in some corrupt practices. She stated that [Mr A]’s family still claim that money is owed to them and they are responsible for her parents being demoted in their jobs. However she also stated that her mother is almost retired and only works on a casual basis.

51. When asked what she thought would happen if she returned she stated that she was not sure but her life would not be normal. If she returned to Dalian she would be affected by [Mr A]’s family. If she moved elsewhere she would not be able to find work because her study in Australia was not successful.

52. She stated that she wanted to live in a good environment. She stated she cannot live a normal life and is not emotionally prepared to return to China; she had lived in Australia for a long time. She also stated that in Chinese society academic success and family background are very important. She does not wish to enter into a forced marriage and would face many difficulties if she returned to China.

53. When asked to explain those difficulties she stated she did not relate well to people and would have problems if she went back. She has not sought any medical or psychological assistance in Australia because of the expense. If she returned to China professional help would be even more expensive than Australia and she would probably not seek assistance.

    Tribunal’s Concerns

54. At the end of the Tribunal hearing the Tribunal discussed its concerns with the applicant. It also noted it had pointed out other concerns about the evidence during the hearing.

55. The Tribunal put it to the applicant that the dispute referred to in the claims was essentially a private financial dispute between [Mr A]’s family and the applicant’s family, that her fears of harm were ambiguous and it questioned whether there was a real chance that the applicant would face serious harm if she returned to China.  It also raised the possibility that the applicant was concerned that her parents had spent a large amount of money on her studies and she did not wish to return because she had been unsuccessful.

56. The applicant stated that her agent had told her that because [Mr A]’s father was a public official that the reason she feared harm could be characterised as fear based on “political opinion”.

57. Further she stated her fear was not just a matter of bad connections but that her family had been bullied and would be bullied in the future if they did not pay the sum of 500,000 RMB to [Mr A]’s family. His family had a lot of power because of his father’s official position.

58. In her final remarks she stated that she did not want to stay in Australia just because she had been unsuccessful in her studies. She stated that her mother understood her situation. Her mother had given her enough money for the first 18 months and the applicant had supported herself for many years. She did not want to return because she did not wish to marry this man and she wanted to be independent in Australia.

    Does the applicant meet the criteria for refugee status?

1. Taking into account the findings set out above the Tribunal is not satisfied that there is a real chance that the applicant will face persecution for reasons of imputed political opinion or any other Convention reason if she returns to China now or in the foreseeable future.

2. The Tribunal accepts, for the purposes of this decision, that the applicant was sexually assaulted in July 2007 by a classmate. It accepts that the classmate’s father was a local official in [District 1], Dalian City.

3. The Tribunal does not accept the applicant’s claim that she will be forced into a marriage with [Mr A] if she returns to China. The claimed sexual assault took place when both the applicant and [Mr A] were in Yr [number] at high school. The applicant applied to study overseas with the knowledge of [Mr A] and his family and she has been away from China since 2008. She has not returned to China since 2008 and both the applicant and [Mr A] are now almost [age]. There is no country information indicating that there is a practice of forced marriage in China, particularly not in urban areas such as Dalian City. Country information in the latest Department of Foreign Affairs report on China (March 2015) indicates that women have equal rights with men in all spheres of life and significant protections are included in the Law on the Protection of Women’s Rights and Interests.[1] There is no satisfactory evidence of any proposals of marriage from [Mr A] and the Tribunal considers it highly unlikely that if the applicant had made a complaint of sexual assault to police in 2007 and had received money to withdraw the complaint that [Mr A] would have any expectation of marriage then or 8 years later. The Tribunal considers this claim to be implausible and rejects it. The Tribunal does not accept that if the applicant returns to China she will be forced to marry [Mr A].

   [1] DFAT Country Report PRC 3 March 2015 p 13

4. The applicant claimed her family had been bullied by [Mr A]’s family and continues to be bullied because of a dispute over the claimed debt owed to [Mr A]’s family. It appears that the families have a dispute involving a claim for payment of a sum of money, that is, 500,000RMB

5. The applicant claimed that her life would be difficult if she returned to Dalian because of this ongoing bullying conduct. She was unable to clarify what she meant by difficult although by implication it appears she means she would be associated with her parents and would be involved in the continued conflict over the claimed debt.

6. The Tribunal does not accept that the claimed debt has any relation to the assault she claimed took place in 2007. The Tribunal does not consider the applicant has given a truthful and complete account of the nature and origin of the financial dispute and considers the dispute is a private matter between the families. Despite the claim that [Mr A]’s father is very powerful because of his [position], the applicant has given evidence that even though her father assaulted [Mr A]’s father he only spent one month in detention and was released on the payment of a fine of 10,000RMB. The evidence indicates that the claimed debt is still essentially unpaid, however, her parents own a property (or properties) in Dalian, they are both working and her mother is due to retire. She claimed that [Mr A]’s father had been responsible for her parent’s demotion; however, the evidence indicates that they are still employed. Even if the Tribunal were to accept that her parents had been demoted because of [Mr A]’s father’s influence it does not accept this amounts to serious harm and there is no suggestion that it would have any direct impact on the applicant if she were to return to China. The Tribunal does not accept that she would face serious harm if she returned to Dalian.

7. The applicant claimed that if she returned to another city in China that she would find it difficult to find work because she had not obtained any qualifications in Australia. Whilst the Tribunal accepts she may find it difficult to adjust and find work in another Chinese city it does not accept this amounts to serious harm.

8. She also claimed that she finds it hard to relate to other people and had suffered from depression and an [illness] after she first arrived in Australia. However, she has not provided any evidence of a psychological disorder and has not sought any treatment. The Tribunal put it to her she could seek medical treatment in China for any ongoing problems but she stated she probably would not do this due to the expense involved. The Tribunal does not accept that fear of possible adjustment and psychological problems amounts to serious harm and further it is not Convention related.

9. In her written claims the applicant raised the issue of her attendance at a Christian church and involvement in Christian activities. At hearing she was asked about her involvement in Christian activities in Australia but she did not press or make any claims that she feared harm in China for reasons of her religion or religious activities.

10. Taking into account the evidence and findings set out above and considering the claims individually and cumulatively, the Tribunal does not accept that if the applicant returns to China now or in the foreseeable future she faces a real chance of persecution for reasons of political opinion, real or imputed or any other Convention related reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any Convention related reason. It is not satisfied she is a person to whom Australia owes protection obligations and she does not satisfy the refugee criterion in s.36(2)(a).

    Does the applicant meet the criteria for complementary protection?

11. Having considered that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criterion in s.36(2)(aa).

12. Taking into account the above findings, 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 China, there is a real risk that she will suffer significant harm.

13. The applicant claimed that she feared she would be forced to marry [Mr A] or suffer other difficulties if she returned to China. The Tribunal does not accept that she will be forced to marry if she returns to China for the reasons set out above.

14. The other difficulties identified and anticipated by the applicant are; involvement in the family conflict with [Mr A]’s family, economic and employment difficulties and psychological difficulties as set out above. There is no satisfactory evidence, and the Tribunal does not accept, that these claimed difficulties will result in the arbitrary deprivation of her life; or that she will face the death penalty; that she will be subjected to torture; or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

15. She does not meet the criteria for complementary protection in s.36(2)(aa).

    CONCLUSION

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

17. 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).

18. 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).

19. 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

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

    Louise Nicholls
    Senior Member  21 April 2016

    
    

    RELEVANT LAW

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

    Refugee criterion

22. 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).

23. 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.

24. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

26. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

27. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

28. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

29. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

30. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

31. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

32. 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’).

33. ‘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.

34. 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

35. 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.