1418482 (Refugee)
[2016] AATA 4020
•14 June 2016
1418482 (Refugee) [2016] AATA 4020 (14 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1418482
COUNTRY OF REFERENCE: Pakistan
MEMBER:Susan Pinto
DATE:14 June 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 June 2016 at 10:15am
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
The applicant is a citizen of Pakistan who is aged in his [age range]. He was granted a [temporary] visa [in] October 2010. He arrived in Australia on that visa [in] March 2011. He first applied to the Department of Immigration for a Protection visa [in] June 2011. The application was refused by the Department [in] March 2012 and the delegate’s decision was affirmed by the Refugee Review Tribunal (RRT) on 17 August 2012.
Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 and SZRNJ v Minister for Immigration [2014] FCCA 782 (see below), the applicant was able to make a further application for a Protection visa [in] January 2014. In the current application, the applicant claimed that he was charged in relation to [specific crime] and the case is ongoing. He claims he was harmed whilst in prison awaiting bail and he will suffer similar harm in prison if he returns to Pakistan.
The delegate of the Minister for Immigration refused to grant the visa [in] October 2014. The delegate stated that the applicant was able to depart Pakistan without any difficulty and he renewed his passport whilst in Australia. The delegate found that the harm the applicant feared did not fall within the Refugees Convention. This is an application for review of the decision made by the delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The delegate assessed the applicant against only the Refugees Convention. For the reasons discussed below, the Tribunal has assessed the applicant only against the Complementary Protection provisions.
RELEVANT LAW
Section 48A imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal 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 provisions 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 on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion. Although the applicant was assessed by the Refugee Review Tribunal (RRT) on both the Refugees Convention and Complementary Protection criteria, the Federal Court has found that s.48 does not prevent a person who has not made an application for a Protection visa relying on the Complementary Protection grounds from making another Protection visa application on Complementary Protection grounds.[1]
[1] See SZRNJ v Minister for Immigration [2014] FCCA 782.
As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa) and (c).
The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer ‘significant harm’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
CLAIMS AND EVIDENCE
Application to the Department
When lodging the application to the Department, the applicant provided a passport from the Islamic Republic of Pakistan, issued [in] 2007. The applicant indicated that he is from the Punjab province and that he speaks, reads and writes Urdu and Punjabi. The applicant indicated that between June 2001 and his departure from Pakistan in 2011 he resided in Rawalpindi. He indicated that he had [number] years of education and was employed as a businessman for [a named company] prior to his departure. The applicant stated on the application form that his parents and [specified siblings] live in Pakistan. He has [siblings] in Australia and [another] in [another country]. The applicant indicated that he was married in Australia, but had since separated.
In response to questions on the application form as to why he left Pakistan, the representative stated that the applicant has not previously applied for Complementary Protection and his claims are based on the real risk that he will suffer significant harm. It is submitted that the applicant now “asserts that he was detained and imprisoned as a result of an alleged civil offence, and he has been traumatised by such experience”. In response to a question as to why he cannot obtain protection from the authorities in his country, the representative submitted that the applicant was mistreated whilst in custody in circumstances not previously presented.
In a submission, dated [in] August 2014, the representative submits that the applicant was arrested in circumstances unrelated to political activity. The applicant was arrested in his [business] and detained at [a specified prison] for approximately a month. The reason for his imprisonment was his alleged association with [a crime] on [a service]. He was detained with [number] other friends. He was eventually bailed and “was cleared during 2010”. He found the month in prison traumatic and claims he was assaulted after his arrest. He was “looking at a sentence of three to ten years for [a specified] crime but was found not guilty”. The representative submits that the applicant has been traumatised by his month in prison and has suffered degrading treatment and he realises how arbitrary his position is if he returns to Pakistan.
The representative further submits that the applicant demonstrates a demeanour which is secular and he is not a committed Muslim. Since his arrival in Australia, the political stability in Pakistan continues to deteriorate. It is more difficult to operate any business, be it in Rawalpindi or elsewhere. Further, the capacity of the police to maintain law and order has been increasingly challenged and there is growth in endemic corruption. The representative further submits that Pakistan suffers from significant social and political unrest. The applicant is part of a family that operates businesses and this is a demographic that is broadly perceived as a target for extortion, not only by criminals but also the police, who acquiesce to this type of behaviour.
The applicant was interviewed by the delegate [in] October 2014. No interpreter was present. The Tribunal has listened to the CD Rom recording of the interview and the relevant evidence is summarised below.
Several documents were provided in support of the application. These are discussed below.
Application for review
When lodging the application to the Tribunal, the applicant’s representative provided a submission, dated 7 November 2014. The representative submits that the “interpretation of what took place at the interview is incorrect in a most significant, material particular”. It is submitted that the applicant was improperly arrested as he has not committed an offence and the Complementary claims that emerged were as a result of the mistreatment he suffered for a period whilst he was on remand in prison. It is submitted that “the significant flaw in the decision making record is that no decision has been made with respect to the Complementary Protection grounds”.
A further submission was lodged on 27 May 2016, in which the representative submitted that because no decision has been made with respect to Complementary Protection, the Tribunal does not have power to review a matter when a relevant decision has not been made. It is submitted that “such power is not conferred by the Act”. Jurisdiction is limited to decisions referred to at s.411 and decision making with respect to s.36(2)(aa) is distinct and it is not a decision referrable to the Refugee Convention. The representative refers to the case of Zubair v Minister for Immigration (2004) FCAFC 248 at 28 and states that the Tribunal may not make a decision not authorised by the Act”.
The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. At the hearing, the Tribunal provided the representative with a copy of the most recent Department of Foreign Affairs and Trade Report on Pakistan. The representative requested further time to provide a response or to comment on the report. The Tribunal agreed to the request and the representative was given one week to provide comments.
On 9 June 2016, the applicant’s representative provided a response. The representative submitted that the report shows recognition of serious and ongoing political instability and civil disruption, even to the extent of instability and corruption, which is exacerbated by the presence of Islamic State. It is further submitted that these factors affect the integrity of the police and their ability to maintain law and order. Particular attention must be drawn to information which recognises that civil offences may culminate in primitive and unacceptable penalties such as flogging, whipping, stoning and with respect to the applicant, purported perjury. It is submitted that the inability of the Pakistan government to maintain law and order is also relevant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm?
The Tribunal firstly finds, as discussed during the hearing, that it has jurisdiction to review this matter. The Tribunal does not accept that “such power is not conferred by the Act”. Although the Department erroneously considered the Refugees Convention and not the Complementary Protection provisions, the Tribunal is satisfied that a valid application was made by the applicant and a decision was made by the delegate of the Department. The Tribunal’s review powers under Part 7 of the Migration Act are triggered when a valid application is made for review of a Part 7-reviewable decision.[2] It has been held that the Tribunal is able to review decisions which have been erroneously made provided they are either part 5 or Part 7 reviewable and the subject of a valid application for review, and in doing so may ‘cure’ the defect in the primary decision.[3] For the purposes of the review of a Part 7-reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision.[4] The Tribunal is satisfied that it has a Part 7 reviewable decision and that it is able to review the decision, despite the erroneous findings made by the delegate in relation to s.36(2)(a) and a failure to consider s.36(2)(aa).[5]
[2] s.414(1).
[3] Zubair v MIMIA (2004) 139 FCR 344 particularly at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116, which was followed in Fang v MIMIA [2004] FCA 1387 (RD Nicholson J, 29 October 2004) at [35]; Bao v MIMIA [2004] FMCA 1044 (Smith FM, 14 December 2004) at [33] to [39]; and Lin v MIAC (2008) 218 FLR 177 at [57].
[4] s.415(1). See MIAC v SZKTI (2009) 238 CLR 489 and MIAC v SZNAV [2009] FCAFC 109 (Stone, Jacobson and Jagot JJ, 27 August 2009).
In considering whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he is returned to Pakistan, the Tribunal has had regard to the applicant’s written claims and his oral evidence to the Department and the Tribunal. Where relevant, the Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent Country Report on Pakistan, dated 15 January 2016.
Having considered all of the evidence, the Tribunal accepts that the applicant was charged in relation to [a specific crime] and detained in prison for a short period of time pending his release on bail. The Tribunal does not accept the applicant’s claims that the case is ongoing or that he will be imprisoned again upon his return to Pakistan. Nor does the Tribunal accept that there is a real risk that the applicant will suffer significant harm for any other reason. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.
Claims relating to criminal charges
During the Department interview, the applicant was asked about his claims relating to the criminal charges in Pakistan. The applicant stated that in 2007 a First Information Report (FIR) was lodged against him in relation to “[specified] crimes” in which he was accused of involvement. The applicant denied, when asked about his involvement in these crimes that he had committed the crime of “[particular act],” but he was charged in relation to this matter and was detained for almost a month and then released on bail. The applicant’s [sibling] and parents assisted him to obtain bail. The case was in court for two to three years and he attended court many times, but the matter is still ongoing. The applicant’s friends in [an agency] arranged for him to depart Pakistan. When asked why he had not raised this issue when he made his last application, the applicant stated that it is a crime and he could not tell anyone. He had not told anyone in Australia. The applicant stated that whilst in prison he was beaten and seriously harmed. The applicant believes that if he returns to Pakistan he will have to go to prison again and he will not get bail.
At the Tribunal hearing, the applicant was asked about his claims relating to the [specific crime]. The applicant stated that he was charged in 2007 for [specific] offences but he did not commit the offences. The applicant stated that he was cleared of some of the charges but there are ongoing court cases in relation to other matters. The applicant told the Tribunal that there were [number] cases lodged and he received bail, and [most of these] cases were heard but there are [several] more cases which were raised in 2014. The applicant stated that although he was granted bail he was investigated many times. The applicant was advised by the Tribunal that the submission from his representative provided to the Department states that he was cleared of all the crimes in 2010. The applicant denied that the cases had all been cleared. The Tribunal advised the applicant that his name does not appear on the FIR and the documents he has provided show only that he has been cleared of the charges and there are no ongoing charges. The applicant told the Tribunal that he could obtain other documents which show that he has ongoing charges. When advised that he has had considerable opportunity to provide these documents and he was asked why he had not provided them, the applicant stated that his parents are elderly and his [sibling] is married and he would have to ask friends to assist him. The applicant stated that he fears he will be falsely accused of other charges and he continues to be scared of [a government office’s] inspectors and others who do not like him.
When asked at the Tribunal hearing about his first application for a Protection visa, the applicant stated that he did have some problems but what he had included in his first application was “not really” true. The applicant told the Tribunal that he had pursued this application to the previously constituted RRT because he was given poor advice from friends and he simply followed their advice. When asked why he would not have made an application based on what he now claims are his true circumstances, the applicant stated that it was embarrassing for him. The Tribunal advised the applicant that the fact that he waited six to seven months after getting the visa to leave Pakistan does not indicate that he feared harm at that time. The representative submitted that the applicant made different claims in his initial application, his willingness to admit he had provided false claims enhances his credibility. The representative submitted that if the applicant returns to Pakistan he will be subject to continuing arbitrary detention. He will be perceived as “rich” by the authorities and will also be subject to bribes from the police as a result of his previous crimes.
As indicated above, the applicant provided documents to the Department, including:
· First Information Report, No. [number], dated [in] January 2007. The FIR relates to [specific crime] at a [business] in Islamabad. The applicant is not named in the FIR.
· Statement from [a named business], dated [in] August 2007, stating that after an investigation a loss of the [business] has been recovered and the [business] has decided not to pursue some cases and FIR [numbers] have been withdrawn in the interests of the [business], whilst FIR [numbers] will be pursued by the [business] in the future.
· Bail decision, dated [in] April 2007, in the Court [name] Lahore, Punjab, stating that the applicant seeks post arrest bail in the FIR [number], registered [in] January 2007. It states that the applicant was arrested for [a specific action] and [affected the business] to the amount of rs.[amount] but an amount of rs. [larger amount] was recovered during the investigation from the [relative] of the petitioner. According to the investigator he is not required for further investigation and is not involved in any other criminal case and the grant of bail in such cases is a rule and refusal is an exception. The bail decision also states that the applicant is not named in the FIR, the recovery has been effected and the applicant has been in the judicial lock up since [date in] 2007 and the case is likely to take a “considerable long period and the offences do not fall within a prohibited clause. It states that the “in case the petitioner-accused has any passport for going abroad the same shall be surrendered to the Investigation Officer so that he may not run away from the country”.
· A security bond relating to the applicant’s release on bail, dated [in] April 2007, in the [court name], in Lahore.
· Handwritten document regarding the above FIR’s;
The Tribunal has considered the applicant’s claims and the documentation he has provided relating to charges of [specific crime] in 2007. Although the Tribunal has concerns about the applicant’s credibility, given that his own evidence indicates he manufactured claims in his first application for a Protection visa, the Tribunal accepts that the documentation set out above is genuine. That documentation establishes that the applicant was charged in relation to a criminal matter in 2007 and he spent a short time in prison on remand whilst awaiting bail. The documentation also indicates that the applicant was subsequently acquitted of those charges. Furthermore, the submission to the Department states that the applicant was “cleared during 2010” and although he could have been sentenced to between three and ten years’ imprisonment, he was found “not guilty”.
The Tribunal does not accept the applicant’s claims that the matter is ongoing or that he will be imprisoned in relation to these charges in the future. The documentation he has provided indicates that he was only charged in relation to a criminal matter, and although he is not named in the FIR No. [number] , the bail documentation of April 2007 names the applicant and is in relation to FIR No. [that number] . The bail documentation states that the applicant is not required for further investigation and is not involved in any other criminal case as “recovery has been affected. The later documents from the [business] indicated that the FIR No. [number] was not pursued by the [business] following the recovery of specific amounts of money. The documentation the applicant has provided is consistent with the submission made by the representative to the Department which is essentially that the applicant was charged, spent some time in prison awaiting bail and was later cleared of the charges. The Tribunal does not accept the applicant’s subsequent claims that the matter is ongoing. The Tribunal notes the applicant’s statement during the hearing that he can provide further documentation. The Tribunal considers that if genuine documentation was in existence relating to this matter, which established that there were further charges faced by the applicant, it would have been provided at a much earlier time.
The Tribunal’s findings above are strengthened by other aspects of the evidence. In this regard, the Tribunal does not accept that the applicant’s actions in delaying his departure and contacting the authorities to obtain and renew his passport indicate he genuinely fears significant harm in relation to this issue. The information provided by the applicant indicates that he was granted a [temporary] visa [in] October 2010 and he left Pakistan on that visa [in] March 2011. The applicant was also granted a passport in June 2007 to enable his departure from Pakistan, which is after the FIR which was lodged in January 2007 and after he was granted bail in April 2007. The applicant also renewed his passport again whilst he was in Australia and a further passport was issued to him in [2012]. The Tribunal does not accept that the applicant’s actions in obtaining a passport in June 2007 indicate that the authorities had any ongoing interest in him. The Tribunal does not accept that the applicant would have been granted a passport if there were any ongoing criminal matters at that time. Furthermore, the applicant’s actions in contacting the Pakistan Consulate in Australia to renew his passport, thereby alerting them to his presence in Australia, does not indicate he had any concerns regarding [specific charges] against him in 2007. The Tribunal does not accept the applicant’s explanation at hearing, which was essentially that the Consulate does not have computerised records. The evidence cited by the delegate indicates that the Government of Pakistan maintains an exit-control list (ECL) for those wanted for existing criminal offences, which is used at all Pakistani airports and border transit points. This list is also used for persons wanted for crime or corruption or are facing court charges and who are prohibited from leaving the country. The Tribunal does not accept that the applicant would have been able to leave Pakistan without difficulty had he been the subject of ongoing criminal investigations. The Tribunal does not accept that applicant was assisted to leave Pakistan by a contact in the [agency], or that he had any difficulty leaving Pakistan on the passport in 2008 on the passport which was issued in his name after the commencement of court proceedings.
The applicant has claimed that he will be subject to discrimination in employment and other areas and his business is no longer operational. The Tribunal accepts that there will be some stigma due to his previous criminal charges. However, the Tribunal does not accept that any stigma or shame that the applicant will confront upon his return to Pakistan, some nine years after the charges, which he claims to have not committed, are such that this amounts to significant harm. The applicant has the support of his family members in Pakistan and the Tribunal is not satisfied that he will be unable to re-establish himself and obtain employment some nine years after he was cleared of charges of [the specific crime].
Furthermore, although the Tribunal accepts that the applicant’s experiences in prison were traumatic and he was subject to bribes from police and the [government office], the Tribunal does not accept that there will be any ongoing action taken against the applicant by the police relating to these charges upon his return or that he will be subject to further bribes several years after the matters were cleared. The Tribunal does not accept the applicant’s claims that the police “do not like me” and will take action against him. As stated above, this matter occurred several years ago. The Tribunal does not accept that it occurred because of any dislike from the police. The Tribunal considers that the evidence instead indicates that the applicant somehow, possibly through his association with friends involved in criminal matters, was charged and spent some time in a criminal facility in Pakistan. The Tribunal has accepted that the applicant experienced traumatic experiences during that time, but has not accepted any ongoing charges or that he will serve any further time in prison and is not satisfied that any of his previous experiences will result in him suffering significant harm upon his return to Pakistan.
Claims to be non religious
The applicant has also claimed that because he is not a practising Muslim that he cannot return to Pakistan. During the Department interview, the applicant stated that his parents are “too religious”. His father is Sunni and his mother is Shia. When asked if he ever experienced any problems with his parents, the applicant stated that his parents would tell him he had to pray and attend the mosque. The applicant also stated that everyone in Pakistan knows him and they know about the court case. If he returns to Pakistan there will be a stigma attached to the court case and the charges. When asked about this claim at the hearing, and he was advised that there are numerous secular Muslims in Pakistan and no evidence that they experience problems, the applicant indicated he did not wish to add anything further. The Tribunal is not satisfied on the evidence before it that there is a real risk the applicant will suffer significant harm because he is a secular Muslim.
Claims relating to the general security situation in Pakistan
The applicant has also made generalised claims relating to the security and political situation in Pakistan. At the Tribunal hearing, the Tribunal advised the applicant that the Department of Foreign Affairs and Trade Report for 2016 indicates that there has been significant improvement in the security situation in many parts of Pakistan. The applicant agreed and stated that he does not fear terrorist attacks. He did not raise any further claims in relation to this issue.
The Tribunal has had regard to the representative’s submissions before and after the hearing regarding the security problems in Pakistan. As discussed with the applicant during the hearing, although the Tribunal accepts that the security situation in parts of Pakistan continues to be unstable, the majority of attacks are against minority religious groups, such as Shias, Ahmadis and Christians and there is ongoing violence between some political parties. The Tribunal also accepts that corruption is higher in Pakistan than many other countries. DFAT reports that although there have been numerous incidents of religious, sectarian and communal violence, minority groups are disproportionately affected and there is some level of sectarian violence in Pakistan where Islamic groups maintain a presence, particularly in Karachi, Quetta and parts of the Punjab.[6]. DFAT also reports that the security situation varies between Pakistan’s provinces and autonomous regions and Punjab remains relatively “free of sectarian and generalised violence”, and the level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA and varies depending on the location of Pakistan military operations. Additionally, since the commencement of Operation Zarb-e-Azb Ranger operations have substantially reduced the level of serious crime throughout Pakistan. DFAT has reported in its 2016 report that “despite occasional media reports of minor militant groups claiming allegiance to Islamic State (IS) such as the TTP splinter group Jundullah, and arrests of Islamic State members there is no credible evidence of an active or organised Islamic State presence in Pakistan and such claims are “rhetorical or aspiration in nature”.[7] The reports also refer primarily to recruitment rather than operations by Islamic State and indicate that the threats extend to some reports of Islamic State graffiti and pamphlets and the arrests of some persons who were planning to train with Islamic State in Syria and Iraq.[8]
[6] Department of Foreign Affairs and Trade 2016, Country Report: Pakistan, 15 January, p. 7.
[7] Department of Foreign Affairs and Trade, 2016, Country Report: Pakistan, 16 February.
[8] Jamestown Foundation 2016, Growing Evidence of Islamic State in Pakistan, 4 February.
The applicant is not a member of a minority religious group and he has not claimed to be involved in politics. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as a result of the generalised security or criminal situation in Pakistan. Nor is the Tribunal satisfied that he will be perceived as a target for extortion by the police or criminals or that his position in Pakistan is “arbitrary”, as submitted by the representative. The Tribunal has not accepted that there is a real risk that the applicant, whose evidence indicates that he has not committed crimes in the past, will be involved in crimes in the future or that he will be subject to “primitive and unacceptable penalties” or “perjury” as also submitted by the representative. The Tribunal has not accepted that the applicant will be subject to any further criminal charges relating to [the specific crime] or that he will be imprisoned again upon his return to Pakistan or sought by the police or [government office]. The Tribunal has also not accepted that the trauma he experienced whilst in prison on remand will result in him suffering significant harm upon his return to Pakistan.
Having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Pakistan to Australia that there is a real risk he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Susan Pinto
MemberATTACHMENT - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Complementary protection criterion
The Complementary Protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
0
10
0