1419177 (Refugee) - [2015] AATA 3406

1419177 (Refugee) [2015] AATA 3406 (24 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419177
COUNTRY OF REFERENCE:                  India
PRESIDING MEMBER:  Tony Caravella
MEMBERNicola Findson
DATE:24 September 2015
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 September 2015 at 10:39am

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

This is an application for review of a decision made by a 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 applicant who claims to be a citizen of India, applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] October 2014.
Background and Protection Claims
In an application for a protection visa lodged with the Department of Immigration and Border Protection [in] December 2013, the applicant declares that he left India and entered Australia as the holder of a student visa. He claims he had family problems and that he had a relationship with a girl. The applicant declares that inter-caste marriages in India are problematic and that his parents are not happy now that he married a woman who is not of the same caste or religion as the applicant.
In response to the question asking what the applicant fears will happen if he goes back to India, the applicant declares that his parents know that he is married to “an intercast girl” and that they can harm him because he did not marry within his own caste.
In reply to the question asking, who the applicant thinks may harm him, the applicant declares his parents and relatives are aware of his inter-caste marriage and that they may harm him because he has breached the rules about inter-caste and religion made by his ancestors. He claims they have already shown his anger over the phone and claims he has been told if he returns to India they will kill him. The applicant claims that the authorities do not show interest in cases such as his and that it is a matter for the families to resolve. He claims he cannot expect any support from the local authorities.
The Delegate’s Decision
In a decision record dated [in] October 2014, the delegate sets out his findings and reasons for refusing to grant the applicant a protection visa. In summary, the delegate expressed serious concerns about the veracity of the applicant’s claims based on his written and verbal testimonies. However, the delegate decided not to make a finding in respect of the applicant’s overall credibility because the delegate made relevant findings on the applicant’s statutory effective protection. In particular, the delegate found the applicant has access to effective state protection in Nepal by the operation of the bilateral residency treaty known as the Treaty of Peace and Friendship between India and Nepal. The delegate went on to find that the applicant has a present right to enter and reside in Nepal. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal.
Application for review
The applicant applied to the Refugee Review Tribunal on 24 November 2014 for a review of the delegate’s decision. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015. Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.
Evidence provided at Tribunal hearing
The applicant appeared before the Tribunal on 2 September 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, however, his agent did not attend the hearing.
After providing an outline of the procedural aspects of the hearing, the Tribunal invited the applicant to provide evidence and arguments in relation to matters arising in his case. The Tribunal explained that it would consider a number of issues, including in his circumstances as a citizen of India, whether he has a present right to enter and reside in Nepal. If that is so, the Tribunal explained it must consider whether pursuant to s.36(3) of the Act he has taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in Nepal. It explained that if this was the Tribunal’s finding, then pursuant to s.36(3) of the Act, Australia would not have protection obligations in respect of the applicant.
The applicant confirmed that he holds a passport issued by the Republic of India and the passport expires in [2023]. He told the Tribunal his father is deceased, but his mother works as [occupation], his brother works as [occupation], and his sister-in-law works as [occupation] in India. As to family in Australia, the applicant said he has his wife here.
The applicant confirmed that he has completed studies in Australia since arriving here in August 2008, and in particular, completed [courses of study]. He claimed that after this, he applied for a further student visa, but this was refused. He told the Tribunal that he has worked as [occupation] but that he ceased working when his work rights were cancelled more than one year ago. He claimed he spends his time for the past year–and-a-half watching TV, sitting at home, and with his family. He told the Tribunal that his wife is studying and she is permitted to work 20 hours per week and they live on the income she earns from that.
When asked what his original plans were in coming to Australia, the applicant said his plans were not to apply for permanent residency, but after arriving here he saw how things were and saw others applying for permanent residency and then decided he would also like to obtain PR. He said his wife and he sees a brighter future in Australia than in India. He said he views the situation and future in Nepal as similar to the situation in India.
When asked to explain his claim to fear harm if he returns to India, the applicant told the Tribunal that his wife is not of the same caste. He said he met his wife in Australia and he fell in love. He said he met here while they were students at [university] and that they married in May 2011. He said her name is [Ms A] and her date of birth [deleted]. He said they had their wedding in [Australia] but no one from his, or from [Ms A]’s family attended the wedding. He told the Tribunal that his wife holds a student visa as she is in her last semester as a student in a [course].
When asked if he experienced any harm or trouble when he returned to India in 2009, the applicant explained that he returned for his brother’s wedding and he experienced no harm because his relationship with his parents was still good at that time and that he had not married at that time. He told the Tribunal that he mentioned his relationship to his uncle at first, and his uncle responded aggressively. He told the Tribunal that he fears that his mother, brother, and uncle would harm him if he returns to India. He told the Tribunal that [Ms A] is of [one] caste and that he is of [another] caste.
The applicant told the Tribunal that he last spoke to his brother about one month ago. When asked if he had received threats, he replied that he has not received threats recently. He referred to being threatened last about 6 months ago. He added he does not feel safe going back to his same village.
When asked to comment on the possibility of moving to another part of India, the applicant replied that he had never considered that. He added that he has never worked in India and there is great competition for employment in India. He said his family might track him down if he relocated to some other part of India.
When asked to comment on the delay between his arrival in Australia in August 2008 and applying for the protection visa some five years later in December 2013, the applicant said that things with his family got bad in 2012 after he and [Ms A] married in 2011. He also said he was not aware of being able to apply for a protection visa and it was only after he faced the prospect of having to leave Australia because he was refused a bridging visa, that his agent told him about protection visas.
The applicant told the Tribunal that [Ms A]’s parents do not know that the applicant and their daughter are married. He said her parents live some 60 Km away from the village his parents live in.
When asked to comment on the apparent right he has to enter and reside in Nepal, the applicant said he does not want to leave Australia and does not want to leave his wife. When asked if he had made any inquiries about travel to Nepal, or work, or accommodation there, the applicant replied that has made no inquiries about going to Nepal, and added that he does not know anyone there.
The Tribunal put it to the applicant that based on country information available to it, it appeared there was not a real chance he would face serious harm, or a real risk he would face significant harm, if he entered and resided in Nepal. It also put to the applicant that based on the country information before it, it did not appear the applicant would be removed from Nepal and returned to India, or any other country, where he might face a real chance of serious harm, or a real risk of significant harm. The Tribunal invited the applicant to comment on this. The applicant replied by saying he did not know what he might face in Nepal. He offered no other evidence or argument that he faced serious or significant harm in Nepal.
RELEVANT LAW
The relevant law applicable in this case is set out in Appendix A of this decision record.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria for a protection visa, and whether Australia is taken not to owe protection obligations to the applicant because of s.36(3) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The Tribunal finds, based on a copy held on the Department’s file of a biodata page from a passport issued to the applicant by the Republic of India, the applicant is a national of India. The Tribunal has therefore assessed the claims against that country in relation to ss.36(2)(a), 36(2)(aa) and 36(3).
Credibility issues
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rongand Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA vRajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
After considering the applicant’s claims and the evidence he provided at the Tribunal hearing, the Tribunal concluded that some of his claims were generally credible. The Tribunal formed the view that the applicant holds some fear of disapproval by members of his family, and members of his community, to his inter-caste marriage. The Tribunal accepts as plausible the fact that the applicant’s inter-caste marriage may be viewed with disfavour by members of his family, and by some members of his community. The Tribunal also accepts that the applicant may feel some uncertainty about the precise nature of his family’s reaction, however, based on all of the evidence, the Tribunal has significant doubt that his family, or members of his community, or anyone else, holds a serious intention to seriously harm the applicant should he return to India. In this respect, the Tribunal found the applicant’s evidence as to the harm he fears vague, general, and overall not convincing. The Tribunal found the evidence of the significant delay in the applicant applying for protection after he claimed to have informed his family of his inter-caste marriage, and also the evidence that the last claimed threat was received six months ago, undermines his claim that he fears serious harm from his family, or from anyone else if he returns to India. The Tribunal also found the applicant’s evidence as to the claimed threats appeared to be vague and general and overall not convincing.
Section 36(3) - right to enter and reside in Nepal
In considering the applicant’s right to enter and reside in Nepal, the Tribunal had regard to the Department’s policy guidance as set out in its Procedures and Advice Manual (PAM3) contained in Chapter 4 of the Refugee Law Guidelines.
Section 36(3) of the Act provides as follows:
36 Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
In determining whether section 36(3) applies in this matter, the Tribunal must consider the international bilateral agreement between India and Nepal known as the Indo-Nepal Treaty of Peace and Friendship of 1950 (the Treaty). Article 7 of this treaty provides that Indian nationals such as the applicants can enter and reside in Nepal, on the basis that
[t]he two governments agree ‘to grant, on a reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of residence, ownership of property, participation of trade and commerce, movement and other privileges of a similar nature.
In MIAC v SZRHU[1] (SZRHU) the Full Court of the Federal Court held that the correct test for section 36(3) was that set out by Allsop J (as he then was) in V856/00A v MIMA (V856/00A)[2], that there is
no reason to restrict the meaning of the word ‘right’ to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning the notion of liberty or permission or privilege which does not give rise to any particular duty upon the state in question
[1] MIAC v SZRHU [2013] FCAFC 91.
[2] V856/00A v MIMA [2001] FCA 1018 at [31], 114 FCR 408 at 419.
In SZRHU the Court was considering the operation of section 36(3) in relation to a Nepalese national’s right to enter and reside in India under the Treaty, but the Tribunal sees no reason why the reasoning of this decision should not apply equally to the case of an Indian’s right to enter and reside in Nepal. Buchanan J held the correct course for the Tribunal to adopt is as follows:
[The Tribunal] should pay regard to the actual terms of the Treaty and should also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens at the Indian border (or any other arrangements with respect to entry identified by it) satisfy the test.
The Tribunal found no information indicating that there are any practical barriers for Indian citizens being able to travel to and enter Nepal.[3]
Documents that are necessary to enter Nepal
[3] Searches conducted on CISNET, think tanks, academic journals, open source search engines, human rights organisations, non‑government organisations, and international news outlets.
To allow Indian citizens to make travel on the basis of the following document:[4]
·     Passport, or
·     Driving license with photograph, or
·     Identity card with photograph issued by a governmental body, or
·     Ration card with photograph, or
·     Voter identity card with photograph, or
·     Registration certificate issued by the Indian embassy to the Indian citizen staying in Nepal, or
·     Ad hoc/temporary identity card issued by the Indian embassy to the Indian citizen in the event of exigency, or
·     Document with photograph and setting out identity, issued by the sub-divisional magistrate or authority there above.
[4] Nepal Immigration n.d., ‘Information for Indian Citizens’ <>
The Nepali government’s published entry requirements for Indians make it clear that Indian nationals are free to enter Nepal upon presenting basic forms of photographic and other identification. Country information suggests that the privilege granted is in practice, rarely denied, and enjoyed by many Indians and Nepalis on a daily basis.
Terms of the Treaty and administrative arrangements
A majority of the Full Federal Court in SZRHU found that the terms of the Treaty, while reflecting a mutual right of residence, did not appear to give rights of entry and so did not of itself support a finding of a right to enter and reside in India for the Nepali applicant.[5] However, the Court indicated that the Tribunal should pay regard to the actual terms of the Treaty and also evaluate whether, in combination with the terms of the Treaty, the administrative arrangements for entry by Nepalese citizens satisfy the requisite test of a liberty, permission or privilege lawfully given, to enter and reside in the country.[6]
[5] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [88], Tracey, Robertson and Griffiths JJ agreeing.
[6] MIMAC v SZRHU (2013) 215 FCR 35, per Buchanan J at [90].

The Full Federal Court remitted the case for reconsideration to determine whether the applicant in that case has a right of entry within the sense described by the Federal Court in V856/00A.[7]
[7] V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018.
Subsequent judgments of the Federal Circuit Court have upheld decisions in which the Tribunal, following this approach, has found that the administrative arrangements for entry, when read in light of the terms of the Treaty, amount to an entitlement to enter and reside consistent with that described in MIAC v SZRHU.[8]
[8] SZTQO v MIBP [2014] FCCA 2636 (Judge Barnes, 30 October 2014); SZTPK v MIBP [2014] FCCA 2259 (Judge Driver, 31 October 2014) at [24]; SZRUT v MIBP [2015] FCCA 263 (Judge Street, 5 February 2015) at [30].
Having regard to the information before it, including the evidence indicating the applicant is the holder of a current passport issued in his name by the Republic of India and expiring in 2023, the Tribunal finds that the applicant has a right to enter and reside, whether temporarily or permanently, in Nepal and the right is one that presently exists as he is an Indian citizen, a fact which he is able to demonstrate by way of his current Indian passport.
Having regard to all of the evidence, the Tribunal is satisfied that the Treaty and the arrangements between India and Nepal establish a liberty, permission or privilege in favour of Nepali and Indian citizens, including the applicant, and satisfy the test articulated by Allsop J in V856/00A and endorsed by the court in SZRHU.
Having regard to this evidence, and to the terms of the treaty and the administrative arrangements for entry as summarised above, the Tribunal finds that the applicant does have the right to enter and reside in Nepal for the purposes of s.36(3). Further, having regard to all of the evidence, the Tribunal finds the applicant has not taken any step to avail himself of that right.
The Tribunal has considered the applicant’s evidence that he has never been to Nepal and that he knows no one there. Notwithstanding, the Tribunal finds that the applicant has not taken all possible steps to avail himself of the right which he currently has to enter and reside in Nepal for the purposes of s.36(3) of the Act.
Section 36(4) – well founded fear of persecution or real risk of significant harm in Nepal
Section 36(4) of the Act provides that s.36(3) does not apply where the applicant has a well-founded fear of persecution (s36(4)(a)) or there is a real risk of significant harm (s.36(4)).
No statistical information was found on the employment prospects or level of unemployment of Indian nationals who have moved to live in Nepal. This may be due to the lack of records of Indians moving into Nepal given the open border.[9]
[9] Adhikary, D. 2002, ‘India, Nepal: Stuck at the border’, Asia Times, 10 February < CISNET CX317925
The Tribunal has taken into account that the applicant is married and that his wife is in her last semester of her studies. It also considered the applicant’s claim that he has never been to Nepal, has no desire to go to Nepal, and knows no one there. The Tribunal also accepts general country information suggests that Nepal is a poor country with challenging economic circumstances which may have deteriorated further since the earthquakes in April and May 2015.
Section 36(3) does not permit a decision maker to consider whether the exercise of a right to enter and reside is reasonable, rather it requires consideration of whether a person has taken ‘all possible steps’ to avail themselves of a right to enter and reside. The Australian courts have confirmed that the phrase ‘all possible steps’ should not be construed as ‘all steps reasonably practicable in the circumstances’, ‘all reasonably available steps’ or ‘all reasonably possible steps’.[10]
[10] NBLC v MIMIA, NBLB v MIMIA (2005) 149 FCR 151 per Graham J at [64], Wilcox J and Bennett J agreeing.
The Tribunal considers that while the applicant may face challenges in settling in Nepal, s.36(3) does not incorporate any requirement to examine such matters.[11] Nor are Australia’s protection obligations enlivened by virtue of the possibility that a person may suffer privation or be exposed to significant difficulties in maintaining a lifestyle by exercising such a right outside Australia.[12]
[11] SZMWQ v MIAC (2010) 187 FCR 109.
[12] SZMWQ v MIAC (2010) 187 FCR 109 per Rares J at [32]. However, in SZRTC v MIAC [2014] FCAFC 43 at [48].
The Tribunal considered whether the parties the applicant claimed seek to harm him might locate the applicant in Nepal. Based on the Tribunal’s assessment of all the available evidence before it, and the applicant’s claims and its assessment of the credibility of his evidence, as previously discussed, the Tribunal finds it is not satisfied there is a real chance the parties who the applicant claims would harm him if he returns to India would travel to Nepal to locate and harm the applicant there. Further, the Tribunal considered no evidence was advanced, nor claim made, that the applicant will face harm in Nepal on the basis of his inter-caste marriage. The Tribunal also considered whether as an Indian national in Nepal the applicant faces a real chance of serious or significant harm, and concludes based on the evidence before it, including the circumstances of the applicant and in the absence of country information indicating a real chance or real risk of harm, that there is not such a chance of harm to the applicant . The Tribunal also considered the evidence suggesting that economic conditions in Nepal may be poor, and the applicant’s claim that he would not be employable. However, it finds the applicant is an articulate and well educated person who has the benefit of some work experience. It does not accept that he would face serious harm such as being denied the capacity to find work and at the very least to subsist in Nepal.
Having regard to all the evidence, and to the findings set out in this decision record, the Tribunal finds the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal. Further, for similar reasons and based on the Tribunal’s assessment of the applicant’s particular circumstances and the evidence before it, the Tribunal finds there is not a real risk the applicant will be arbitrarily deprived of his life in Nepal, or that the death penalty will be carried out on him. Having regard to his claims, the country information, and all the circumstances, the Tribunal also finds there is not a real risk the applicant will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is removed to Nepal. The Tribunal therefore does not find there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.
Sections 36(5) and (5A) – refoulement from Nepal
The Tribunal has considered the provisions in s.36(5) and s.36(5A) of the Act which excludes the operation of s.36(3) of the Act where a country will return a non-citizen to another country where the non-citizen will be persecuted or face a real risk of significant harm. The Tribunal finds no country information before it to suggest that the government of Nepal returns Indian nationals to India.
Further, the Tribunal finds that under the terms of the Treaty, the government of Nepal agreed to grant Indian nationals reciprocal privileges to Nepali citizens in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. The Tribunal finds that the applicants does not have a well-founded fear that Nepal will return him to India and that s.36(5) and s.36(5A) are not enlivened.
For all of the above reasons, the Tribunal finds Australia does not have protection obligations in respect of the applicant by the operation of s.36(3) of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that he is unable to satisfy the criterion set out in s.36(2)(b) or (c). As he does not satisfy the criteria for a protection visa, he cannot be granted the visa, and the delegate’s decision must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Tony Caravella Nicola Findson
Presiding Member Member

Appendix A
Relevant Law
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.
Relevant to this matter, ss.36(3), 36(4), 36(5), and 36.(5A) of the Act provide:
36(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
[(4) substituted by Act No. 121 of 2011 with effect from 24/03/2012 - LEGEND note]
[36] (4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

[36] (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[36] (5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Refugee criterion
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).
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.
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.
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.
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.
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.
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.
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
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’).
‘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
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.