1419658 (Refugee)

[2016] AATA 3544

1419658 (Refugee) [2016] AATA 3544 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419658

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Ruth Cheetham

DATE:15 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2016 at 12:44pm

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. 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 Lebanon, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] November 2014.

2. The applicant appeared before the Tribunal on 9 March 2016 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing and gave brief oral submissions at the conclusion of the hearing.

3. Prior to the hearing the applicant’s migration agent provided a copy of the delegate’s decision record. No other materials were received, and the applicant’s migration agent declined to provide written submissions as directed by the Tribunal pursuant to the President’s Practice Direction[1].

   [1] Migration and Refugee Matters Practice Direction available at

   SUMMARY

4. On the facts of this matter, the issues in this case are:

   a.whether the applicant’s claimed fear of harm for a Convention reason is well-founded, and, if not;

   b.whether the Tribunal is satisfied that there are substantial grounds for believing that there is a real risk of harm if the applicant were to return to Lebanon.

5. For the reasons which follow, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

6. The criteria for a protection visa are extracted at Annexure A to this decision, as is the applicable law relevant to those criteria.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant has presented his claims to protection in his protection visa application lodged [in] April 2014 which was accompanied by a written statement, during an interview with the delegate which took place [in] August 2014, and in evidence to the Tribunal. The applicant has been assisted throughout this process by a registered migration agent.

8. According to the information provided by the applicant, he was granted a [temporary] visa [in] November 2012 and arrived in Australia [in] November 2012. He completed the prerequisite English language course and commenced a [tertiary course] but did not complete it. He told the Tribunal that he stopped studying when he lodged his protection visa application, which was [in] April 2014. At that time, he was granted a bridging visa with work rights and has since then been working full time in [a] sector. Prior to this, his parents supported him financially. His parents and [siblings] live in Lebanon and he has a cousin [in] Australia. His parents and [sibling] live in a house in [their home suburb] near Tripoli; his other [sibling], who is married, lives in a village [in] northern Lebanon where his father owns another house that he visits on weekends and for holidays.

9. At the hearing, the Tribunal summarised the applicant’s claims to the applicant and the applicant confirmed that it was an accurate summary, that he continued to rely on those claims as summarised, and that there were no other claims on which he wished to rely. The summary confirmed as accurate put by the Tribunal during the hearing was as set out in the following summary paragraphs.

10. The Tribunal asked the applicant whether he understood the decision which had been made by the delegate. The applicant agreed that he did and stated that he had read it himself. The applicant’s English during the hearing was quite fluent, but the interpreter engaged by the Tribunal remained and assisted whenever the applicant required it, or when the Tribunal wished to make a point to the applicant in his own language in order to be more precise.

    Protection claims: Summary

    Dispute with former brother-in-law

11. The applicant claims to fear harm by the former husband of one of his sisters. The applicant’s sister and his former brother-in-law eloped [in] 2012 but the latter divorced his sister three weeks later and she returned to the family home. The applicant’s father asked the applicant [to] go and speak with the former brother-in-law to find out why he had acted like this. Instead of explaining, the brother-in-law falsely accused the applicant of insulting the Chief Commander of the Lebanese army (the brother-in-law is a military [employee]). In March or April 2012, military police officers came to his family’s house and told his father (the applicant was not at home) that the applicant must report to the military police. When he reported, which was in March or April 2012, he claims he was locked in a cell for eight hours then released without charge. He claims the brother-in-law has [brothers] in the military police and they manufactured the accusation against him for revenge for questioning him about the divorce.

12. The applicant claimed that after this, his former brother-in-law commenced legal proceedings against him, on the same accusation. The applicant became scared and left Lebanon to come to Australia. While he was in Australia the court case was finalised and the applicant was exonerated. The applicant claims that this did not settle the matter and that he is afraid that if he goes back to Lebanon his former brother-in-law will kill him because he won the court case and because he reprimanded him for divorcing his sister.

    Family dispute over building construction

13. The applicant claims to fear harm because of a family dispute over the construction of a house next to that of his father in the village. His cousin built a house which overshadows his fathers, without seeking permission. He claims to fear a family feud may result and that he will be harmed by defending his father’s interests.

    Political opinion; security situation

14. The applicant claims to be a supporter of Dr Samir Geagea, the leader of the Lebanese Forces party, and of the 14 March Movement. His father is opposed to Dr Geagea and the Lebanese Forces party and it has caused tensions between them. The applicant claims that when he was at [university] he attended demonstrations in support of the Lebanese Forces.

15. The applicant claims to fear harm if the security situation in Lebanon deteriorates, whether as a result of the Syrian civil war or because of tensions between political opponents in Lebanon, and that he may be harmed by fighting between the Lebanese Forces and Hezbollah, the main Shi’a party in Lebanon.

    The hearing

    Claims concerning dispute with former brother-in-law

16. The Tribunal asked the applicant to provide more, or more specific, details of the events he claimed occurred in the problems with his former brother-in-law. The applicant was unable to provide a more precise date of the episode of detention than “March or April 2012”, or when the court case brought by his former brother-in-law commenced (“in 2012”), or when that court case was finalised in a decision favourable to him (when he was in Australia). He said that he does not have a good memory. He was unable to identify any other event such as birthdays, holidays or religious occasions contemporaneously with any of these incidents which might help him to be more precise with dates.

17. The applicant was unable to provide the Tribunal with the name of the court in which claimed proceedings were conducted, or where that court was located. The Tribunal explained to the applicant the difference between criminal offences (broadly, public wrongs) and civil proceedings (broadly, private harms) and asked which type of proceedings the case against him involved. The applicant was unable to respond. The applicant was unable to explain why his former brother-in-law was able to bring proceedings against him either as a criminal matter or for the harm he was falsely accused of having caused the Chief Commander of the army. When the Tribunal asked what court the proceedings had been in, the applicant replied that it was the military court but was unable to explain to the applicant how a military court had jurisdiction over a civilian such as himself, and said that if you are wanted by the military they take you to the military police and detain you for eight hours and tell you to wait and that you will be investigated. The applicant was unable to provide the name of the lawyer whom he claimed his father had engaged to defend him in the proceedings. He claimed that there had not been any hearing in the court. When the Tribunal expressed surprise that contested legal proceedings had not required a hearing, the applicant said that he was in Australia when he was summoned to court and that he went to the Lebanese Embassy in Australia and signed a document to allow his father to represent him.

18. The Tribunal asked the applicant whether he had any documents which might corroborate these events, such as the summons to attend the military police station, the court proceedings, the name of the lawyer engaged by his father or the orders of the court finalising the proceedings. The applicant said he could get them, that he could ask his father, that all the documents are in Lebanon with his father. The Tribunal asked the applicant whether he had a copy of the document he signed at the Embassy in Australia and he replied that he could ask go to the Embassy and ask if they have a copy in their records.

19. The Tribunal put to the applicant that documents which could corroborate his claims about being detained and being accused in court proceedings are obviously relevant to his protection visa application and centrally important to the credibility of his claims. The applicant agreed. The Tribunal put to the applicant that all of the documents he said he could obtain now were in existence before he lodged his protection visa application and that all the documents in Lebanon are, on his evidence, in the possession of his father and therefore easily obtainable. The Tribunal also noted that during the interview with the delegate, as related in the decision record, the delegate had specifically asked him about corroborative documentation and the applicant had at that time, [in] August 2014, undertaken to obtain the documents and provide them to the delegate. The delegate had not proceeded to a decision until [date] November 2014 yet the applicant had not provided any documents in that time. The applicant responded that when the delegate asked him to present these documents, he called his father but he does not know what happened because his father did not send them.

20. The Tribunal noted that the applicant had said in his evidence he was aware of the reason why the delegate had refused his protection visa application but he still had not obtained those documents in order to provide them to the Tribunal with his review application or prior to the hearing, despite the obvious relevance and importance to his claims. The Tribunal put to the applicant that his failure to have provided these documents in such circumstances might lead the Tribunal to conclude that the reason why he has not done so is because the documents do not exist. The applicant responded that the documents were real and that he would ask his father to send the documents.

21. The Tribunal asked the applicant to explain why he was at risk of harm by his former brother-in-law, given that his sister’s divorce had occurred over five years ago, the applicant had, he claimed, been “exonerated” by the court, and he has not been in Lebanon since November 2012. The applicant responded that his former brother-in-law is fixated about this, and he is at risk because he is the [son] in the family, his father is old and the former brother-in-law and his brothers would not do anything to his father. The Tribunal asked why, if the resentment was so strong, the former brother-in-law had not caused harm to other male member of his family while the applicant was out of the country. The applicant responded that the former brother-in-law does not know where his uncles and male cousins live.

    Claims concerning the family dispute over building construction

22. The Tribunal asked the applicant why he would be involved in a dispute between his father and his cousin. He said that his father had spent 20 years building and paying for this house and that in a dispute he would be on his father’s side.

23. The Tribunal asked what form this dispute had taken, such as arguments, fighting, court cases, police complaints. The applicant responded that his cousin had not asked for any permission to build, that in a single day he had erected the walls and that there are no legal documents or titles for land in the village. He said the dispute was personal, that his father only saw the construction after it was completed because he only goes to the village on weekends. The Tribunal asked if his father has taken any steps to resolve the matter such as through the village authorities or the courts or by having someone in authority arbitrate it for the parties and the applicant responded that there is nothing to be done, that there is no village head, that the village is divided in two over the issue. When the Tribunal noted that if his father does not live in the house and only visits on weekends, which would reduce the impact of the distress and the opportunities for conflict, the applicant responded that his father is [age] years old and that he is not going to stay in [their home suburb], that he will go back to the village to live.

    Claims concerning political opinion; security situation

24. At the hearing the applicant confirmed that he is not now and has never been a member of any political party or movement and he has never experienced harm because of his support for Dr Geagea and the Lebanese Forces. He estimated that he attended about 10 demonstrations at university in that period, and only as an attendee, not in any other role.

25. The Tribunal asked the applicant why he says he is at risk of harm now, if he were to return to Lebanon. The applicant responded that politically there would not be any big risks because he does not belong to any group but that if there was another civil war he would be on the side of Dr Geagea and the Lebanese Forces. He said one of his uncles was killed during the last civil war in Lebanon and he was with the Lebanese Forces.

26. The Tribunal put to the applicant that he does not have a public profile for his political views, he is not active in politics and his last political involvement was to attend demonstrations [at] university. The Tribunal put to the applicant that on those facts the risk of harm because of his political opinion might appear to be remote. The applicant responded that the situation now is relatively calm but it will not be if a war breaks out and you can never know when the situation will ignite in Lebanon.

    Request for time to obtain and provide documents

27. At the hearing, the applicant said that he could obtain documents held by his father in Lebanon concerning the summons by the military police and the subsequent court case. At the conclusion of the applicant’s evidence, the Tribunal invited the applicant’s migration agent to make submissions on why the Tribunal should delay making a decision in the matter in order to permit the applicant more time in which to obtain those and any other documents. The Tribunal specifically asked the migration agent to address the following matters:

    a.There were multiple points throughout the visa determination process at which the applicant had been reminded of the desirability of providing all the supporting evidence on which he wished to rely, including in the protection visa application form, in the invitation to attend an interview with the delegate, when lodging the application for review, in the President’s Practice Direction, and in the invitation to attend the hearing. All of those forms and correspondence indicate that an applicant is responsible for producing corroborative material yet the applicant had not done so;

    b.At the interview with the delegate, the applicant undertook to provide corroborative material but did not do so;

    c.The delegate did not finalise the decision until three months after the applicant, at the interview, undertook to provide corroborative material but the applicant did not provide any material during that period;

    d.The material is obvious relevant to the applicant’s protection claims and clearly crucial to the central issue in the delegate’s decision, which is whether or not those events actually occurred. The applicant was well aware of the importance and relevance of the documents he said he could, and would, obtain, yet he took no steps to do so;

    e.The applicant said that the documents concerning the summons and the court cased were in his father’s possession, and therefore were not difficult to obtain;

    f.The documents have been available to the applicant since, on his claims, 2012 and the applicant has not provided any reason for having failed to obtain those documents;

    g.The Act contemplates that the Tribunal may make an oral decision immediately at the conclusion of a hearing, and it is the responsibility of the applicant to present his case fully at the hearing.

28. The applicant’s migration agent agreed that these were all relevant factors but submitted that the Tribunal provide further time to obtain the documents on the basis that the applicant now realises that his application for review before the Tribunal is realistically his last chance to press his protection claims and that if he does not do so now he is unlikely to get another opportunity.

29. The Tribunal noted that the situation put by the migration agent had pertained ever since the delegate had refused the applicant’s protection visa application, [in] November 2014, yet the applicant had taken no steps between that date and the hearing to obtain the documents.

30. The Tribunal concluded, in the light of the factors identified and the absence of a compelling explanation for having failed on previous occasions to obtain corroborative material, it was not appropriate to delay making a decision on the review application in order to allow the applicant more time within which to obtain any further material.

31. The Tribunal indicated to the applicant and his migration agent that a decision would not be made at the conclusion of the hearing but that it would be made as soon as possible and likely before the end of the week. The Tribunal indicated that, in accordance with its duty under the Act, anything which reached the Tribunal prior to a decision being made would be taken into account, but that the decision would not be delayed for that reason

32. At the time of making this decision, nothing further had been received from the applicant.

    FINDINGS AND REASONS

    Claims concerning dispute with former brother-in-law: Findings

33. The Tribunal does not accept that the applicant was summonsed and detained by the military police in Lebanon. The Tribunal does not accept that the applicant’s former brother-in-law initiated or caused to be initiated legal proceedings against the applicant. The Tribunal is satisfied that the chance that the applicant will face harm from his former brother-in-law or persons related to him or acting on his behalf is so remote as to be fanciful.

1. The applicant was unable to provide the level of detail about these two events that would reasonably be expected of a person who had, as the applicant claims, never before been detained or involved in legal proceedings; which occurred reasonably proximate to his protection visa application being prepared; in circumstances when he claimed to have had to flee his country to evade harm; where he claims there is comprehensive documentary evidence to corroborate the occurrence of these events; and where that material is easily accessible by him because it is held by his father, who he claims is concerned for his safety if he were to return to Lebanon and therefore could be expected to assist his son in establishing an entitlement to Australia's protection.

2. Specifically, the applicant was unable to recall, or provide details of:

   a)The date on which he was detained, other than “March or April 2012”;

   b)The date on which the legal proceedings commenced, other than “2012”;

   c)The date on which the legal proceedings were finalised favourably to him, other than when he was in Australia;

   d)The name of the court in which the proceedings were conducted;

   e)The location of that court;

   f)Whether the proceedings were civil or criminal in nature;

   g)How his former brother-in-law was able to bring proceedings, whether civil or criminal, in circumstances where the former brother-in-law had not personally been harmed or had no apparent lawful authority to prosecute criminal offences;

   h)How a military court, if that was the court in which the proceedings were conducted, had jurisdiction over a civilian; or

   i)The name of the lawyer he claimed his father engaged to defend him.

3. Further, when the Tribunal expressed surprise that a court would proceed to finalisation of a contested matter without conducting a hearing, the applicant then claimed to have been summoned to court while he was in Australia and to have gone to the Lebanese Consulate to sign a document authorising his father to represent him. This claim had not previously been proffered by the applicant in his protection visa application or to the delegate.

4. The applicant has failed to provide any evidence to corroborate his claim or detention and court proceedings. The applicant has claimed, since the time of his interview with the delegate [in] August 2014, that such documentation is in existence and is available from his father and that he would obtain the documentation. He has never done so, despite undertaking to do so to the delegate and having available to him a period of almost three months in which to do so before the delegate finalised the decision. The applicant agreed at the hearing before the Tribunal that the documents he claimed were available, including the summons which led to his detention and the court documents, were obviously relevant to his claims, and critically important to claims which had already been rejected by the delegate as not credible. The applicant was unable to provide any explanation why he had not obtained those documents at any of the points during the entire protection visa application process when he was invited to provide corroborative or supporting material, other than to say he called his father but he does not know what happened because his father did not send the documents. The Tribunal does not accept that the applicant’s father, who the applicant claims fears that the applicant would be harmed on return to Lebanon, would fail to send those documents to the applicant.

5. For these reasons, the Tribunal finds that the applicant is not a credible witness and that his claims to have been detained and to have been subjected to court proceedings by his former brother-in-law are not true and have been fabricated to support his protection visa application. The Tribunal rejects these claims.

6. The Tribunal is satisfied that there is no real chance or real risk that the applicant would experience harm because of a dispute with his former brother-in-law.

   Claims concerning family dispute over building construction: Findings

7. The Tribunal does not accept that there is a real chance or a real risk of serious or significant harm to the applicant by reason of a dispute between the applicant’s father and his cousin over the construction of a house next to his father’s house.

8. The applicant does not claim that there has been any harm resulting from this dispute. The Tribunal asked the applicant what form the dispute had taken and he was not responsive. At most, the applicant’s claim amounts to stating that if there is a dispute, of any kind, over the matter, he will support his father in the matter. There is no evidence of any harm having yet been inflicted by any of the parties to the dispute, and the dispute has not been significant enough, on the applicant’s evidence, to prompt the applicant’s father to take any steps to resolve the dispute.

9. Moreover, the dispute concerns a house in which the applicant’s father does not maintain a residence other than on weekends, suggesting that any distress, and opportunity for conflict, is minimal. The applicant claimed that his father will at some stage move to the village to live because he is presently [age] years old, but that eventuality has not yet occurred and it is entirely speculative to anticipate that the dispute, which has not so far resulted in any harm to anyone, would spark into something which would result in serious harm or significant harm to the applicant. It might equally be speculated that constant residence in the house will prompt the affected parties to resolve the dispute in order to maintain harmonious village life. Both are equally speculative and the Tribunal is not satisfied that the applicant’s speculation as to harm in the reasonably foreseeable future should be accepted.

10. The Tribunal is satisfied that there is no real chance or real risk that the applicant would experience harm because of a family dispute over the construction.

    Claims concerning political opinion, security situation: Findings

11. The Tribunal does not accept that there is a real chance or a real risk of serious or significant harm to the applicant by reason of his political opinion in support of Dr Geagea and the Lebanese Forces or by reason of the general security situation in Lebanon.

12. The applicant is not a member of any political party or grouping. The applicant has had no involvement in politics in Lebanon since [while] at university, he attended some demonstrations in support of Dr Geagea and the Lebanese Forces. Even when he attended those demonstrations, which he estimated to have numbered about ten occasions, he had no role or involvement beyond his presence.

13. The applicant conceded that he has never experienced any harm in Lebanon because of his support for Dr Geagea and the Lebanese Forces, and said that if he were to return to Lebanon now there would not be any risk because he does not belong to any group. His claim was that, because of his uncle’s involvement during the last civil war in Lebanon, if there was to be another civil war he would be on the side of Dr Geagea and the Lebanese Forces.

14. The Tribunal is satisfied that the applicant did not in the past and will not in the future experience harm by reason of his political opinion. The applicant has no political profile, he has no involvement in political activities, and he has been absent from Lebanon for several years. The situation in Lebanon at present is, as the applicant described it during the hearing, relatively calm. There is no evidence on which to base a finding that Lebanon will, in the reasonably foreseeable future, descend into civil war serious enough to result in the involvement of citizens such as the applicant who have never had any political involvement other than to attend university demonstrations.

15. On the basis of the material which the delegate cites, as set out in the decision record which the applicant provided to the Tribunal, the Tribunal is satisfied that whereas the applicant may be concerned about the security situation in Lebanon, nevertheless the risk of him randomly becoming a victim of bombings or killings or other sectarian or political violence is a risk faced by the population of Lebanon generally. There is no evidence on which to find that the applicant would personally be at risk of significant harm if he were to return to Lebanon.

16. The Tribunal is satisfied that there is no real chance or real risk that the applicant would experience harm because of his political opinion or because of the security situation in Lebanon.

    Summary of findings

17. The Tribunal has considered the applicant’s claims individually and cumulatively. The Tribunal has rejected as fabrications some of those claims, for the reasons set out above.

18. For all the reasons set out above, the Tribunal is not satisfied that the applicant’s fear of Convention-related harm is well-founded.

19. For the same reasons, 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, there is a real risk that he will suffer significant harm.

20. In relation to the applicant’s claimed fear of harm because of the general security situation in Lebanon, the Tribunal is satisfied that any such risk of harm is one faced by the population generally and is not faced by the applicant personally and that therefore, in accordance with s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm.

    CONCLUSIONS

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant  does not satisfy the criterion set out in s.36(2)(a).

22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal  is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. 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

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

    Ruth Cheetham
    Member

    
    

    ANNEXURE: 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.

    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). 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.

    Of the four key elements to the Convention definition, relevantly to this decision an applicant’s fear of persecution for a Convention reason must be ‘well-founded’. 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.

    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’). The threshold for the ‘real risk’ element in the complementary protection criterion is the same as that for the ‘real chance’ test in the refugee criterion: MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).

    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, relevantly to this matter 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)(c) 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.