1417514 (Refugee)

[2016] AATA 3375

1417514 (Refugee) [2016] AATA 3375 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417514

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Christine Cody

DATE:19 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2016 at 4:14pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

1. The applicant is a national of Malaysia who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied to the Department of Immigration for the visa [in] February 2014 and the delegate refused to grant the visa [in] October 2014. This is an application for review of that decision. The applicant was not represented by a migration agent.

2. The relevant law is set out in Annexure A. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, namely the DFAT Country Information Report on Malaysia dated 3 December 2014.

3. For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.

   CLAIMS AND EVIDENCE

   ·     The applicant was born in[year], in [Sabah], Malaysia, and is now aged [age] years old. He is of [Country 2] Tamil ethnicity. He speaks, reads and writes in Tamil; and he speaks and reads in both English and in Bahasa Tamil. His religion is Islam.

   ·     His parents died when he was young and he was cared for by relatives. He had no formal education and he then found jobs in [Business 1] and [shops] to sustain himself. He moved to the capital of Sabah, and then to Johor Baru, working in [Business 1].

   ·     In 1994 he went to [Country 1] to find work. Between 1994 and 2010 he worked in various [Business 1] in [Country 1], returning to Johor in Malaysia with the intention of opening his own [Business 1]. He went into partnership in a [Business 1] in Johor. He decided to sell alcohol because even though it was illegal for Muslims to sell any kind of alcohol, it was a lucrative side business and he was greedy for money (as said to the delegate at interview[1]). He sold alcoholic drinks to his customers without the knowledge of his partner.

   ·     However, his activities became known to his partner’s father who is a staunch and conservative Muslim, who was an influential man with the police and ruling political party circles. He wanted to destroy the applicant, who fled Malaysia in fear of his life, having experienced intimidation by thugs and arrest. He fears for his liberty and life at the hands of police and thugs if he returns to Malaysia.

   Interview

   [1] recorded in the delegate’s decision record provided to the Tribunal by the applicant.

4. The applicant attended an interview with the delegate [in] September 2014. The Tribunal has listened to the recording of the interview which is on the Departmental file. He produced at interview a document purporting to be a business licence relating to his [Business 1], as well as some photographs purporting to depict him being arrested (which the delegate suggested appeared staged)[2]. He discussed his claims with the delegate, who also put some concerns to the applicant. Aspects of the discussions, and the applicant’s evidence, were set out in the delegate’s decision record provided to the Tribunal by the applicant; when relevant this is referred to below. 

   The Tribunal

   [2] Refer to page 5 of the delegate’s decision record provided to the Tribunal by the applicant.

5. The applicant provided to the Tribunal a copy of the delegate’s decision record with his application for review; he did not provide any further submissions or evidence.

6. The applicant appeared before the Tribunal on 2 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

7. The applicant said he feared that [name deleted] or his gangster guys will harm or kill him. The Tribunal noted that in his statement that the name of the person he feared was[a different name]. The applicant said that this must have been a mistake. The applicant gave evidence about his claims. The Tribunal put concerns to the applicant. Relevant evidence is set out below.

   FINDINGS AND REASONS

   Country of reference

8. The applicant produced to the Tribunal his passport issued in 2013. The Tribunal accepts that the applicant is a national of Malaysia, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Malaysia.

   Credibility

9. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

10. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

11. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

12. The Tribunal had a number of concerns about the applicant’s inconsistent, changing and not credible evidence as to past events, and what he feared upon return to Malaysia. The Tribunal did not find the applicant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. The Tribunal’s concerns are set out below.

    Inconsistencies and changing evidence relating to the applicant’s reason for claiming protection and his fear of harm

13. Firstly, the Tribunal was concerned about the applicant’s changing evidence as to when he was in fear, and faced harm, in Malaysia. According to his statement, it was when the partner’s father (a strict Muslim) found out that alcohol was being served at [Business 1], that his problems started: he “immediately” informed the religious department of the serving of alcoholic drinks which led to the applicant’s arrest and cancellation of the trading licence, closure of [Business 1], and intimidation by local gangsters started day and night, such that the applicant feared for his life, and started going away to [Country 1]. He did not give a date for each event, but he did give a date for his first trip (made in fear) to [Country 1], namely [August] 2013. Thus, according to his statement, all of these events must have occurred prior to [August] 2013.

14. However, the applicant’s evidence about when he faced harm in Malaysia was different at hearing. He told the Tribunal that [Business 1] was closed in May 2013. He said that the threats became serious after he returned from [Country 2]. Noting that he had returned from [Country 2] at the end of October 2013, the Tribunal asked why it took the partner’s father so long (from May 2013 to October 2013) to start seriously threatening the applicant. The applicant said he got very angry when the applicant demanded his portion of the money. The Tribunal noted this was different to his claim that the father was angry because he had been selling alcohol in [Business 1] (which he discovered before May 2013). When the Tribunal read to him from his statement, he then changed his evidence and said that the partner’s father got really angry from August 2013 when the applicant asked for the money (which was different to his earlier evidence to the Tribunal that the father got angry when the applicant asked for his money in October 2013).

15. The Tribunal considers that the applicant’s changing and inconsistent evidence concerning when he faced harm from this powerful and influential person, and the reason why, undermines his credibility and his claims generally.

16. The Tribunal’s concerns in this regard were heightened because when the Tribunal asked him what he feared, he said that the partner’s father and the gangsters would kill him if he returned. The Tribunal noted that all the problems had commenced in early/mid 2013, yet he had not left for Australia until November 2013; these people had had plenty of time to harm him. In response he said that the harassment and torture they gave him sometimes led to him thinking of suicide. The Tribunal noted he had not responded to the question and again asked why they would be wanting to kill him now if they had not previously done so. The applicant did not respond to the Tribunal’s concern, only saying that he escaped from the same problem and has the same fear. The Tribunal considers the applicant’s inability to offer an explanation as to why he would be killed now, undermines his credibility.

17. Secondly, the Tribunal was concerned that the applicant was prepared to change his evidence in relation to what he experienced in Malaysia in response to the Tribunal’s concerns.

18. He claimed at hearing that every second or third day, gangsters would come up to him and tell him he had to leave, and sometimes they beat him. When the Tribunal noted he had not mentioned that he had been beaten in his statement, the applicant said initially that he did not remember that he had been beaten up. When the Tribunal asked how he could not recall being beaten up, he then changed his evidence and said that the person who assisted him to write his statement may have missed it. The Tribunal referred back to his earlier evidence where he had claimed that it had been read back to him. The Tribunal suggested that he would have noticed if this was missed from his statement. He then changed his evidence again and said that he didn’t think to mention in his statement that he had been beaten. The Tribunal considers that the applicant’s changing evidence undermines his credibility, and his failure to mention being beaten in his statement (as well as his changing evidence in this regard) undermines that he was beaten by gangsters in Malaysia..

    The applicant’s changing, inconsistent and not credible evidence concerning his address

19. Thirdly, the Tribunal was concerned about the applicant’s changing, inconsistent and not credible evidence concerning where he lived in Malaysia. According to his application form, he resided at the same address in Johor Baru from 2003 until he left for Australia in 2013. However, when the Tribunal put to him concerns with his evidence, he claimed that he had changed locations frequently. When the Tribunal asked if he was claiming to have changed locations frequently in Malaysia, he then gave the Tribunal the same address in Johor Baru, telling the Tribunal that this was the house that he rented, and he lived there up until the time he came to Australia. The Tribunal put to the applicant that it was hard to understand why he had remained in the same house in Malaysia for the whole time he was being threatened. In response he said he went to [Country 1] for relief.  The Tribunal does not find the applicant’s responses persuasive (particularly, as noted below, that he stayed for very short periods of time in [Country 1], during the whole time he claimed he was being threatened/intimidated).

    The applicant’s travel

20. Fourthly, the Tribunal was concerned about the applicant’s travel since his claimed difficulties in Malaysia. As set out in his passport, and application form, prior to leaving Malaysia he made numerous trips to [Country 1] and [Country 2], namely:

    ·     [date] August 2013 - 1 day trip to [Country 1]

    ·     [date] August 2013 - 1 day trip to [Country 1]

    ·     [date] September 2013 -1 day trip to [Country 1]

    ·     [date] October 2013 - 1 day trip to [Country 1]

    ·     [date] October 2013 - 1 month trip to [Country 2]

    ·     [date] November 2013 - 1 day trip to [Country 1]

    ·     [date] November 2013 - 1 day trip to [Country 1]

21. He claimed in his statement that the reason for such trips was fear, and to avoid harassment from thugs; the local gangsters intimidated him continually, day and night. At hearing, as noted above, his evidence changed as to why and when the partner’s father was angry, however he told the Tribunal at one stage that since August 2013 the partner’s father was very angry.

22. The Tribunal put to the applicant that it did not seem to make sense that he would make one-day trips to [Country 1] to escape feared harm. He responded that he would get warnings that the gangsters were coming and he would go to [Country 1]. The Tribunal put to the applicant that this seemed highly unlikely, and it did not see how a one day trip to [Country 1] would assist in avoiding gangsters, as well as the partner’s father, who had vowed to destroy him.

23. The Tribunal also noted the applicant’s evidence that each time he travelled to [Country 1] he was granted a one-month visa; yet he only stayed one or two days at a time. The Tribunal put to the applicant its concern that he always returned to Malaysia after one day or so in [Country 1]; this did not appear to make sense given the significant harm he feared in Malaysia. In response, the applicant said that he was upset and stressed and for relief he went to [Country 1], then he came back. The Tribunal does not find this response persuasive given his claims that a powerful person had vowed to destroy him, and he was being constantly intimidated by thugs (and threatened and beaten up).

24. The Tribunal finds the applicant’s evidence about his travel and return to be highly unlikely, and considers it undermines his claims that he was being intimidated and threatened by gangsters; and that a powerful and influential man had threatened to destroy him. 

    The applicant’s claimed arrest(s)

25. Fifthly, the Tribunal had a number of concerns about the applicant’s claimed arrest(s), as set out below.

26. The Tribunal was concerned about the applicant’s evasive and inconsistent evidence about what happened after he was arrested. He told the Tribunal that he was only arrested once.  When the Tribunal asked the applicant whether he travelled somewhere after his arrest, he said he could not remember. The Tribunal put to the applicant this was difficult to understand. He then said after he was released he went to [Country 2] to get some money and decided to come to Australia. The Tribunal noted however that according to his application form, he was in [Country 2] from [date] October 2013 until [date] October 2013, yet his evidence to the delegate was that he was arrested [in] November 2013 (this date was after he returned from [Country 2][3]). The Tribunal considers that the applicant would have been able to remember if he had travelled to [Country 2] before or after his arrest.

    [3] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

27. The Tribunal noted a further concern about when he was arrested, because he had told the Tribunal that he was arrested one month before coming to Australia (he had come to Australia [in] November 2013), whereas his evidence to the delegate was that he was arrested two weeks before coming to Australia. In response, the applicant said it was two years ago and he got confused. The Tribunal has considered this response; if this was a concern on its own, the Tribunal would not attach much weight to it, however in light of the other concerns about the arrests, the Tribunal considers it to be another inconsistency in relation to the applicant’s claimed arrest. Further, the Tribunal notes that the applicant was able to recall other details of his life (set out for example in paragraph 33 below), so does not accept his explanation that because this occurred two years ago, it is difficult for him to remember..

28. Further, the applicant had claimed in his statement that he was twice arrested, which was different to the evidence to the Tribunal that he had been arrested once. The Tribunal noted that the applicant had claimed in his statement that the partner’s father had immediately, upon becoming aware of the sale of alcohol (end March/beginning April 2013[4]), informed religious department, which he claimed had led to his arrest (and the cancellation of his licence). In response the applicant said that they did not take him away. Then he said it is a long time ago. The Tribunal asked if he was now saying he can’t remember if he was arrested once or twice, and he said one time he can recall because he was taken and beaten, the other one, he is not sure. The Tribunal put to the applicant that it was difficult to accept that, once he was reported to the authorities for serving alcohol, he cannot recall if he was arrested. In response the applicant said the first one he can’t recall, but he does recall the later arrest. The Tribunal considers that the applicant would have recalled if he was arrested once or twice, and the Tribunal considers that his inconsistent evidence undermines his credibility, and his claim to have been arrested.

    [4] According to his evidence to the Tribunal.

29. Finally, the Tribunal was concerned about the applicant’s evidence concerning the photos he produced to the Department as evidence of his arrest. The Tribunal referred to the photos of the applicant which appeared to show him being arrested. He said that the photos were taken while he was being arrested. When the Tribunal asked why the police would take these photos, he said it was not the police who took these photos, it was taken by neighbours who run a shop, and they sent it to him in Australia through a friend.

30. The Tribunal noted that this was different to what he had said to the delegate and asked if he recalled what he had said; he said no. The Tribunal put to the applicant, as set out in the delegate’s decision record, that the applicant had said at interview in September 2014, when he provided the photos to the delegate, that the police had taken the photos, he had requested the photos from the police and received them. In response, the applicant said what he says now is correct. The Tribunal said it did not understand why he would have said that at interview in September 2014. In response he said he can’t recall saying that. The Tribunal considers that the applicant’s significantly inconsistent evidence about the source of the photos of his arrest indicates that the photos are not genuine, and that he was not arrested.

1. On the basis of the above, the Tribunal is not satisfied that the applicant is a witness of truth.

   Other matters

2. The applicant claimed in his application form to have received no formal education. The Tribunal has considered whether this could have explained the concerns with his evidence. The Tribunal notes that he also claimed in his application form that prior to leaving Malaysia he was a businessman; he also told the Tribunal that he attended to the business accounts (and was able to balance these in a deceptive manner, without revealing his claimed alcohol purchases and sales). He was able to give evidence to the Tribunal about a number of different matters which occurred in the past (for example he recalled that his previous passport had 7-8 months validity at the time he applied for his current passport, his work permits for [Country 1] were each of two years’ duration and the last one expired in 2010, and he gave details of work he performed in [Country 1] going back 16 years. On the evidence before it, the Tribunal considers that the applicant was able to understand the process throughout, including at hearing, and that he has been able to present evidence and arguments and claims. Even if the applicant had no formal education as a child (in relation to which it has some doubts), the Tribunal does not accept that he was in any way unable to understand the process or proceedings concerning his protection visa application and review, nor that this could explain the difficulties with his evidence.

3. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims.

   Findings on the applicant’s claims

4. The Tribunal is prepared to accept that the applicant was living in Johor Baru, and that he will return there. It is also prepared to accept that he spent 16 years working in [Country 1], and that he has work experience in Malaysia.  

5. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant suffered any problems in Malaysia. The Tribunal does not accept that he was involved in a [Business 1], that he sold alcohol or undertook any other illegal activity, that he came into conflict with a [Business 1] owner or the owners’ relative, that he suffered loss or is imputed or actually owes money, that he was targeted, threatened, harassed, beaten or otherwise harmed for any reason by the claimed partner’s father, thugs, police or anyone else, that he is owed money or that anyone considers that he owes them money, that his house was vandalised, that he was arrested, or that he fled to Australia for safety.

6. The Tribunal finds that the applicant travelled to Australia (and [Country 1] and [Country 2]) for reasons other than a fear of persecution.

7. The Tribunal asked the applicant if he had any reason to fear harm on return to Malaysia. The applicant insisted that his only reason to fear harm is the claimed events, nothing else. The Tribunal has not accepted the claimed events occurred, thus it does not accept that the applicant faces any chance or risk of harm due to those events.

8. The Tribunal put to the applicant at hearing that it had considered the DFAT Report as required, and if it did not accept his claims, it would seem that he could return, and get work and accommodation, and that having regard to the country conditions referred to in that report, it did not appear that he faced a real chance of serious harm or a real risk of significant harm. In response the applicant said that if he could live in Australia that would be great; he still has his fear. Having considered its findings on the applicant’s evidence, and noting that he has not claimed to face harm for any reason other than his claims which have not been accepted, the Tribunal is not satisfied that as a result of consideration of the country conditions in the DFAT Report, the applicant faces a real chance of serious harm or a real risk of significant harm for any reason, or from anyone, in Malaysia.

9. Thus, the Tribunal is not satisfied that there is any reason to consider that the applicant faces a real chance of serious harm or a real risk of significant harm in Malaysia.

10. The Tribunal has considered the applicant’s claims individually, and, on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared other than those claims accepted above, as well as the relevant country information, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him, or on his behalf.

    Complementary protection

11. 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).

12. The Tribunal has accepted that the applicant is a [age] year old male of Tamil ethnicity, who lives in Johor Baru and has significant work experience in [Country 1]. The Tribunal has found that he will return to Johor Baru and considers that having regard to his significant work experience, he will find work and accommodation.

13. The Tribunal does not accept that he has experienced any of the past harm claimed, including threats or harassment or intimidation or beating or loss of investment, nor that he was involved in [Business 1] or sale of illegal alcohol as claimed, nor that he considered that he had to leave Malaysia (whether to go to [Country 1], [Country 2] or Australia) out of fear. 

14. The Tribunal is not satisfied that the applicant has suffered harm in the past, nor is it satisfied on the evidence before it that he faces a real risk of significant harm in Malaysia if returned there, for any reason.

15. On the evidence presently before it, 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 Malaysia, there is a real risk that he will suffer significant harm for the purposes of 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).

16. 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

17. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Christine Cody
    Member

    
    

ANNEXURE A - RELEVANT LAW

1. 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.

   Refugee criterion

2. 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).

3. 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.

4. 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.

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

6. 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.

7. 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.

8. 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.

9. 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

10. 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’).

11. ‘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. 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

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 and the Tribunal has done so.