1502219 (Refugee)

[2016] AATA 4551

1502219 (Refugee) [2016] AATA 4551 (26 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502219

OUNTRY OF REFERENCE:  India

MEMBER:Meena Sripathy

DATE:26 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 26 September 2016 at 12:51pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of India, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] January 2015.

3. The issue in this case is whether the applicants have a well-founded fear of persecution in India for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any or all of them being removed from Australia to India there is a real risk that they will suffer significant harm;  and/or whether any of the applicants satisfy the criteria on the basis of membership of the same family unit of an applicant who satisfies the refugee or complementary protection criterion.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

5. The first named applicant (the applicant) is a [age] year old married man from Punjab, India. He indicates that he speaks, reads and writes Hindi and Punjabi and speaks and reads English. He arrived in Australia [in] August 2007 on an Indian passport which is valid to [2017]. He provided one residential address in Punjab India since 1997 to his departure in 2007. He is educated to tertiary level, having attended college and university in India. He indicates his occupation prior to coming to Australia was as a [occupation] helping his [relative] in business. The second named applicant is the wife of the first named applicant. She is also [age] years old and from Punjab. She is educated to university level. The third named applicant is the [age] year old [child] of the first and second named applicants. The second and third named applicants did not make any protection claims of their own, providing only a Part D form, on the basis of member of the family unit of the first named applicant.

6. The applicant referred to the following in his protection claims: he was the victim of workplace abuse and fraud by his SC 457 sponsor. He was asked to pay over $[amount] to his sponsor and ongoing instalments to continue his sponsorship.  He is afraid that by exposing them and complaining to the Workplace Ombudsman in Australia they will contact their associates in India who will target and harm him.  He believes he will not receive state protection because the police and judiciary are corrupt and the associates of his employer have connections with them. 

7. Attached with the application is a copy of the applicants’ passports indicating grants of student visas in July 2007 and September 2007 and the first named applicant’s arrival in Australia [in] August 2007. Departmental records and the applicant’s passport indicates that the first named applicant has been outside Australia from April-May 2008, March–April 2009, June-July 2009 and [in] December 2011. He was granted a subclass 457 visa in February 2012 which was valid to April 2014, and was last outside Australia in August –September 2013. 

8. The applicant presented a hand written statement of claims to the delegate [in] January 2015 on the day of his interview.  In it he provides the following background information:  He came to Australia in 2007 on a student visa to study a [course] and completed various courses between 2007 and 2009.  He then developed a depression and stress problem.  In November 2009 his wife and [child] came to Australia on Tourist visas.  They all applied for an extension on their visas due to his health problems.  In 2010 the applicant applied for a Subclass 457 visa, which was eventually approved following review to the Migration Review Tribunal in 2012.  In December 2013 his sponsor demanded money from him and his subclass 457 visa was cancelled in March 2014.

9. His claims for protection are based on the following: he was the victim of workplace abuse and fraud by his Subclass 457 sponsor.  His SC457 visa was approved in February 2012 until April 2014. He was working as a [occupation].  In October 2012 the owner of the company told him that he was transferring ownership to another person but that his visa would continue under the same company.  However, he did not receive a group certificate from the new owner. When he asked about it, the owner told him he had insufficient funds to pay his tax and superannuation and demanded the applicant to give him $[amount], which he said he would return to him.  The applicant arranged to give him $[amount] from friends, but he still did not give the applicant his group certificate.  [In] December 2013 the sponsor demanded $[a larger amount] from the applicant and threatened to kill the applicant and his wife if he refused to pay or return to his country.  The next day the sponsor was drunk and again demanded him to pay the money.  He also sexually harassed the applicant and it was very shameful for him.  He became very stressed and asked to take leave for a few weeks which the sponsor agreed to. He threatened the applicant to come back to work with the money or he will arrange with his associates in India a death plan for his family.  The sponsor had a photo of the applicant and his family which he took from his house when he came over one day to borrow his car.  He had marked the picture with a cross sign. When the applicant returned to the [workplace] after 4 weeks it was shut down, and no one had any information for him.  He became very stressed. He though the sponsor was going to make a plan to harm him and his family.  He started to look for another sponsor because his visa was expiring in April 2014.  He did not realise that the sponsor had already cancelled his visa, because he had moved address and did not receive any letters from the Department. He only realised his visa was cancelled when he went to apply for a student visa, but he could not because of the cancellation. He told the story to the Department and they granted him a bridging visa. The applicant said [in] May 2014 he received a phone call from an unknown number and it was his former sponsor.  He demanded the money or he will kill him and his family.  The applicant states he is afraid to return to his country because his former sponsor has his eyes on him and is waiting for him to return. His country is full of corruption and it is easy to perform such criminal activities if you have money power.  He cannot reside in other parts of the country because he does not have any relatives and it will be hard for him to stay there with his family.  His [child] has been here for 4 years now and it will ruin [his/her] future if [he/she] has to go back. 

10. The applicant attended an interview with a delegate of the Minister [in] January 2015.  The Tribunal has listened to an audio recording of the interview.  Relevant details of the evidence he provided are included in the delegate’s decision statement which was provided by the applicant with the review application.   

    Evidence before the Tribunal

11. The applicant husband and wife appeared before the Tribunal on 19 September 2016 (following a number of postponements requested by the applicant) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicants were represented in relation to the review by their registered migration agent. 

12. They confirmed that the second and third named applicants had no protection claims of their own and were relying on the applicant’s claims. 

13. The applicant provided the following information about his family here and in India.  He only has his wife and one [child] in his immediate family and they are with him here. In India, he has a father and one [sibling], who is married and has [children]. They all live together in his father’s house in [Punjab].  His father is a retired [occupation], and receives a government pension.  His mother, who passed away 4-5 years ago, was a [occupation] in a [workplace] and also received a government pension.  His [sibling] owns a small [business]. The applicant has no extended relatives living outside India.  He only has one [relative] whom he has not seen much in his life, and one [relative] who lives in [Punjab].  His wife’s family comprises her father and [siblings], they all live in [Punjab].  She also has one cousin who lives in [Australia].  This relative came here around 2005 on a [temporary] visa. They are not in regular or close contact and the applicant does not know [his/her] current migration status. 

14. He confirmed his education and employment details prior to coming to Australia.  He is educated to post tertiary level, having completed a Bachelor of Arts degree and a Graduate Diploma in [course].  He helped his [sibling] in [the] shop in India before coming to Australia.

15. The applicant came to Australia to study.  He completed qualifications in [course] and a [qualification] in [course] and he wanted to apply for another student visa for [a qualification] in [course].  His wife and [child] came here on a tourist visa.  While they were here he became unwell and unable to study, and on this basis they obtained an extension to stay in Australia.  Following this the applicant applied for a subclass 485 visa but this was refused.  While waiting for the review of this decision at the Migration Review Tribunal he found a sponsor and went offshore to apply for a Subclass 457 visa.  This visa was granted to him and his family, and he commenced working as a [occupation] [at a workplace] in [suburb]. He commenced working there from December 2011, just before his 457 visa was granted, until around mid 2013. 

16. Within 2-3 months after he started, the owner [Mr A], started asking him for money to pay for his tax and superannuation contributions. The applicant said he objected to these demands, but he told him that if he didn’t pay him he would not continue to sponsor him for his visa and he will have his visa cancelled.  The applicant said he gave him some money, in cash.  He has only one transaction he can provide as evidence of this.  He referred to the evidence provided at the hearing today of a bank transfer for $[amount] made [in] April 2012 in his name to [Mr A]’s account by his friend. The sponsor also presented him with a bill for legal services for his subclass 457 application, and asked him to pay it, but he refused. He provided the Tribunal a copy of this document, dated [February] 2012. The applicant said despite these demands for money, [Mr A] gave him a group certificate in 2012.  After that he told him that he transferred his company to another man, named [Mr B], but he told him that he will continue to be sponsored by the company and can keep working.  The applicant went to a lawyer’s office and signed some papers around this time but he has no documentation. One day, in around early 2013, [Mr B] demanded the applicant pay $[amount] and threatened to have his visa cancelled if he did not.  The applicant told him he cannot pay that amount of money. He felt very stressed and asked [Mr B] for some leave from work.  After he came back from his leave he found the business had closed. 

17. The applicant did not know that his subclass 457 visa had been cancelled because he had moved in this period and did not advise the Department of his address.  The first he came to know about it was when he went to apply for a further student visa and he was told by the Department the application was invalid because his subclass 457 had been cancelled.  The applicant told the Tribunal, if he had known about the cancellation decision he may have had other options to apply for another visa. When he realised he had no visa and could not apply for another visa he became very stressed and approached the Department to explain his situation.  He said they told him he could return to his country and apply for another visa. The applicant said at that time he was happy to return home but then, soon after this visit to the Department, he received a phone call from a private line.  He does not know the number but he recognised the voice as his former sponsor, [Mr B]. He told him that if he tries to return to India he will arrange for someone to harm him and his family, as he is a rich and powerful person and can do that. He could not explain when the Tribunal asked him why he would say that to him, given he was no longer his sponsor at that time. 

18. The Tribunal asked the applicant if he contacted the police or any other authorities about this call.  He said he did not. He confirmed he has never made any complaint to the police or Workplace Ombudsman or any other authority about his sponsor or these threats. When asked why he did not make any complaint, he said he was too stressed at that time. When asked if he has made any complaint at any time since then, he said he has not.  It put to him that his failure to make any complaint or take any action in relation to these alleged demands for money and threats may lead the Tribunal to doubt whether he is telling the truth about this matter. He made no comment.

19. The Tribunal asked the applicant if there were any other threats or incidents.  He said after the first call there was one more phone call, soon after he made his application.  Since then he has not had any other phone calls or contact from his former sponsor or anyone else.  His family in India have never been approached by anyone.  The applicant said he changed his phone number some 6 months after he stopped working.

20. The Tribunal asked the applicant what he is afraid of if he returns to India now.  He said he is afraid someone may try to kill him or his family.  When asked why, the applicant said he doesn’t know, but he is worried.  He said there is a lot of corruption and bribery in India and these things are possible.  The Tribunal asked him what would be the basis for his former sponsor threatening him like this if his visa was already cancelled. The applicant had no specific response to this. 

21. It asked him if there was any other reason for his fear of return. He referred to his [child] having been here for 6 years, and the difficulty it would cause [him/her] to return, and that he had no criminal record. He said at the Department interview he also said that he just wanted another option to apply for a visa. 

22. The Tribunal discussed with applicant, in addition to its concerns about the credibility of his claims regarding the demand for money and the threats, another issue that arises is that his fear of harm falls does not appear to fall within any of the convention reasons of race, religion, nationality, membership of a particular social group or political opinion and asked him if he wishes to comment on that. 

23. The Tribunal put the following information the applicant provided at the interview with the delegate to him for his comment or response under s424AA. The Tribunal explained that he could elect to provide his comments or response to this information now or he could request additional time to respond and the Tribunal will consider his request. It put to him that he told the delegate, when asked about his reason for not returning, that it would be very hard to support his family and that his [child] had been here for 4 years and it would be very difficult for [him/her]. He also told the delegate that he did not intentionally seek protection, but just wanted an opportunity to make another application for a visa.  The Tribunal explained that this information is relevant because it indicates that he would like to remain in Australia to make a better life for him and his family and the Tribunal may rely on it to reject his claims about the demand and threats made by his sponsor, and find that he does not have a genuine fear for his safety in India and contribute to reasons why the Tribunal is not satisfied he has a well founded fear of persecution in India and the Tribunal may affirm the decision under review.  The applicant indicated he would like additional time to respond, and the Tribunal agreed to have a short adjournment to allow him to discuss the matter with his representative. 

24. Following the adjournment the applicant told the Tribunal that he is afraid to go back to India because of the threats made against him by his former sponsor.  He made no further comment or response to the information put to him regarding his evidence to the delegate at the hearing. 

25. The Tribunal also discussed with the applicant the following inconsistencies, contradictions and omissions in his written and oral evidence which, taken together, may also contributed to concerns about the truthfulness and credibility of his claims.  In his statement he referred to being asked by [Mr B] to pay $[amount] initially, and that he paid him $[amount].  However in his oral evidence to the Tribunal today he referred to and provided a document indicating that his original sponsor [Mr A] asked him for money and he paid him $[amount], and then [Mr B] asked him to pay $[amount].  In his written claims he also referred to being sexually harassed by his sponsor, but he did not mention that to the Tribunal. The Tribunal explained that these inconsistencies and omissions may contribute to reasons why the Tribunal has doubts about his truthfulness and the credibility of his claims. In response the applicant said that he was not represented at that time and this may explain any mistakes or omissions. The Tribunal noted that he has been represented again in his review application and he has had a substantial amount of time to provide explanations or submissions, and he has not.

26. The Tribunal agreed to allow a period of one week after the hearing for the applicant to provide any further evidence, explanation or submissions. 

27. On 21 September 2016 the Tribunal received a submission from the applicant’s representative, providing the following information: the representative confirmed that she has discussed with the applicant his immigration avenues available; he was concerned about his fear of return to India and sought the opportunity to be heard; he will consider the merits of a Ministerial Intervention application in the public interest and on humanitarian grounds and he would not have this avenue available to him without the Tribunal determining the application for review; in the meantime the applicant is seeking advice in relation to reporting the sponsor to officials in Australia.

    FINDINGS AND REASONS

28. A summary of the relevant law is set out in the Attachment to this decision record. 

    Nationality

29. On the basis of the applicant’s evidence to the Tribunal, and all of the applicants’ Indian passports, the Tribunal accepts they are nationals of India and considers India is the country of nationality and the receiving country for the purpose of assessing their protection claims.

    Consideration of applicant’s claims

30. The applicant fears harm in India as a result of threats from his former sponsor, a man named [Mr B], in Australia. He claims that his former sponsor demanded money from him when he was working and threatened to harm him and his family, through his associates, if he returns to India without paying him the money.  He claims he would not receive state protection in India because the police and judiciary are corrupt and the associates of his former employer have connections to them.

1. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful 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 v Rajalingam (1993) 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 Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

2. The Tribunal accepts the following in relation to the applicant’s background, circumstances and visa history on the basis of the applicant’s oral and written evidence and department records.  The applicant is a [age] year old married man from [Punjab].  He came to Australia on a student visa in 2007 and was granted a further student visa in September 2009.  It accepts that the applicant wife and [child], the second and third review applicants, came to Australia as the holders of visitor visas in November 2009, and were subsequently included as dependent applicants on another student visa granted to him in 2010.  The Tribunal accepts that in February 2012 he, his wife and [child], were granted subclass 457 visas, and that this visa was cancelled [in] April 2014. 

3. However, the Tribunal does not accept, on the evidence before it, the applicant’s claims that his sponsor demanded money from him or that he threatened him for failing to pay money, or that he or his and his family’s lives will be at risk of harm upon return to India from his former sponsor or his associates.  The Tribunal rejects these claims as lacking in credibility for the following reasons.

4. Firstly, there are a number of inconsistencies and omissions in the applicant’s evidence between his written statement submitted to the Department in January 2015 and his oral evidence to the delegate which the Tribunal considers, cumulatively, to be significant and material and lead it to have concerns about whether he is providing a truthful and credible account of his circumstances.  In his written application, the applicant claimed he was asked to pay over $[amount] to his sponsor and ongoing instalments to continue his sponsorship.  In a later written statement, he said his new sponsor, [Mr B], asked him for a sum of $[amount] to pay his tax and superannuation. He claimed that he arranged for a payment of $[amount] from some of his friends in response to this demand.  He claimed that after that, in December 2013, [Mr B] demanded $[amount] from him and threatened to have his visa cancelled if he did not pay.  However in his oral evidence he referred to a demand of money from the previous owner, his original sponsor [Mr A], and gave the Tribunal a document as evidence of a payment of $[amount] he arranged to have made to him.  He only referred to one demand for $[amount] from [Mr B] in early 2013. In his written statement the applicant also referred to [Mr B] sexually harassing him but he made no reference to this in his oral evidence, even when asked specifically if there were any other incidents.    Ultimately, the Tribunal considers these inconsistencies and omissions are significant and cannot be explained away as minor discrepancies or resulting from memory lapses or nervousness.  It considers the passage of time since these events is not so significant that the applicant would not be able to recall accurate details of how much and from whom demands were made. It has taken into consideration the applicant’s explanation, when these matters were discussed with him during the hearing, that he was unrepresented at the time he wrote his statement to explain any discrepancies.  The Tribunal does not accept this as an adequate explanation, noting that he was represented at various stages in the applicant and has had substantial opportunity to explain or clarify any discrepancies in his evidence, which he has not done, even when asked at the beginning of the hearing if he wished to change or add anything in his application. Considered holistically and cumulatively the Tribunal finds the above mentioned inconsistencies and omissions in the written and oral accounts provided by the applicant of his claims reflects poorly on his credibility.

5. Secondly, as the Tribunal put to the applicant at the hearing, it has difficulty accepting the plausibility and credibility of his claim that the sponsor would threaten and demand payment from him after he ceased working for him and when his visa was already cancelled. When asked on what basis he would be able to do this as he no longer held the power of being his sponsor for the visa over him, the applicant was unable to provide any convincing response.

6. Thirdly, the Tribunal finds significant that the applicant has not pursued any complaint about the alleged demands or threats made by the sponsor against him to any relevant authority in Australia.  As a result, apart from his assertions in this application there is no other evidence to support that these demands or threats were made against him.  The Tribunal has considered the document he provided at the hearing showing a payment of $[amount] to his original sponsor, in his name, however, as mentioned above, this document contradicts, and is inconsistent with, his claim that it was the sponsor, [Mr B], who demanded money from him.  

7. In his application form, in response to Question 43 why did you leave that country the applicant referred to being afraid that ‘by exposing them and complaining to the Workplace Ombudsman they will contact their associates in India who will target and harm me.’ However, he told both the delegate at the interview in January 2015, and the Tribunal at the hearing that he has never made a complaint to the Workplace Ombudsman or the police about these matters.  When asked by the Tribunal whether he had made any complaints to the police or Workplace Ombudsman or anyone else since the delegate put him on notice of this at the interview, he said he still has not made any complaints to anybody because he did not think he was at risk from these people in Australia but only in India. The Tribunal notes that in the post hearing submission, his representative mentioned that he was ‘seeking advice in relation to reporting the sponsor to officials in Australia’ but no further information, explanation or submissions about this have been made.

8. If the applicant’s claims about the demands for money and threats made were true, the Tribunal would consider it reasonable that he would have by now at least made some official complaint to authorities in Australia about these matters, particularly given that his employee relationship with the sponsor has terminated and his visa had been cancelled. While a claim about an unscrupulous sponsor demanding payment from a 457 worker is not entirely implausible, the Tribunal does not accept, on the limited evidence before it, and in all the circumstances referred to above, that this has happened in this case.  The Tribunal finds that the applicant’s failure to have reported the sponsor to any authority in Australia or complained to police in relation to the threats once he was no longer in an employment relationship with him, leads the Tribunal to have doubts about whether he is telling the truth about demands or threats made against him. 

9. The Tribunal also finds suspicious, and detracting from the credibility of the claims, the timing of the two alleged phone calls in which the threats were made, being just after he visited the Department and was told his visa had been cancelled. 

10. Finally, on his own evidence, he says he has not heard from his former sponsor since these phone calls.  His family in India have also not had any contact or adverse interest from anyone in this period. The Tribunal considers the lack of any ongoing interest in the applicant or his family here or in India from his former sponsor or anyone else is another factor which detracts from the credibility of the applicant’s claims. 

11. Considering all of the above concerns together, the Tribunal does not accept that either or any of the applicant’s sponsors demanded money from him as claimed or that his sponsor made threats to harm him and his family in India were he to return.  The applicant has not claimed to fear harm upon return to India for any other reason.

12. Having rejected the applicant’s claim that money was demanded of him by his sponsor and that his sponsor threatened him and/or his family with harm upon return to India, the Tribunal does not accept the applicant’s former sponsor, his associates or anyone else will harm him or his family upon return to India and for this reason, it is not satisfied there is real chance the applicant will face serious harm upon return to India on this basis in the reasonably foreseeable future. 

13. The Tribunal has also considered the applicant’s claim that he fears for his [child], having been in Australia for the past 6 years and the difficulty for [him/her] of returning.  The Tribunal accepts the applicant’s [child] has been in Australia since 2009, and given [the] young age and stage of education, a return to India now may be disruptive and difficult for [the child]. However, it is not satisfied disruption to education, financial hardship or other such difficulties or challenges amounts to serious harm within the meaning of that term for this criteria. 

14. Given these conclusions, it is not necessary to consider whether the applicant’s claimed fear of harm is for a Convention reason.

15. Having considered the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm from his former sponsor, his associates or anyone else for any reason, related to the Convention or otherwise upon return to India.   Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.

16. For the reasons given above, the Tribunal is not satisfied that the applicant, his [child] or his wife, is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

    Complementary Protection criteria

17. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that they will suffer significant harm as defined in s36(2A) of the Act.

18. Having regard to the findings made above rejecting the applicant’s claims of demands for payment of money by his sponsor and threats of harm to him and his family upon return to India made by his sponsor, the Tribunal is also not satisfied that there are substantial grounds for believing there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to India. 

19. The Tribunal has also considered the applicant’s claim that he fears return to India because his [child] has been in Australia for over 6 years now and it will be difficult for [him/her] to go back to India now.  The Tribunal accepts that the applicant’s [child] has been in Australia for this period, and that given [the] young age and stage of education, a return to India may be difficult and disruptive for [him/her] and the family.  However, it is not satisfied that such disruption, difficulties and challenges of reintegration, or any associated financial hardship amounts to significant harm for the purposes of this criteria.  Therefore while sympathetic to the applicant’s concerns for his [child]’s education and future prospects, and the disruption and challenges a return may cause for the family, it is not satisfied there are substantial grounds for believing that there is a real risk he or his [child] will suffer significant harm for this reason, if they returned to India.

20. The Tribunal is not satisfied that the applicant, or his wife or [child], are a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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

22. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

23. 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

24. 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).

25. 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.

26. 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.

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

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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

34. 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’).

35. ‘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.

36. 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

1. 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.

   Member of the same family unit

2. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include partner and children.