1508266 (Refugee)

[2017] AATA 371

1508266 (Refugee) [2017] AATA 371 (7 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508266

COUNTRY OF REFERENCE:                  India

MEMBER:James Silva

DATE:7 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2017 at 4:33pm

CATCHWORDS

Refugee – Protection visa – India – Harassment by former business partner – Police harassment – Credibility issues – Evidence vague and changeable – Harassment for private and commercial reasons – Not Convention related

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91

Migration Regulations1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are a husband and wife in their early [age], and their [age] year old [child]. All were born in India, and are Indian citizens.

2. The applicants arrived in Australia [in] June 2014, as holders of [temporary] visas. The first-named applicant (‘the applicant’) first visited Australia [in] May/June 2013.

3. [In] August 2014, they lodged an application for Protection visas.

4. The applicant attended an interview with the delegate of the Minister for Immigration [in] June 2015.

5. [In] June 2015, the delegate refused the application pursuant to s.65 of the Migration Act. This is an application for review of that decision.

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

8. The applicant is a [age] year old man from Punjab. He claims to fear that his former business partner in a [company] will kill, or seriously or significantly harm him, if he returns to India. He claims that this person has political connections. He also claims to fear harm from the police, who have demanded bribes, detained and brought false charges against him (at the behest of his former business partner).  The applicant also claims that his parents and his wife have suffered as a result of the past harm he has endured, and that they will do so again in the future.

9. The applicant also claims that he will be unable to survive economically if he returns to India.

10. The applicant claims that his business partner is involved in the Hindu nationalist party Shiv Sena, which is present throughout India. The police will not protect him, as they have refused to lodge a complaint in the past and will again refuse to assist.

    Background

11. The applicant is a [age] man from Punjab. His languages are Hindi, Punjabi and English, and he is a Hindu.

12. The applicant lived in [Town 1], [Punjab] from birth until his departure for Australia.

13. The applicant studied from [year] to [year]. He then started working in a [certain] company.[1] In around 2004, he lost this position, and was unemployed for a while. In 2006/2007, a person named [Mr A], who had worked in a factory that the applicant’s previous employer (the [certain] company) had served, persuaded the applicant to go into business with him. They set up a partnership that operated a business named [name]. This company did [brokered] [certain commercial deals].

    [1] The applicant did not provide a complete résumé in his protection visa application, but the delegate’s decision record, which the applicant submitted to the Tribunal, contains this information.

14. In April 2009, the applicant split from his business partner and started his own [business].This operated in [Town 2], some [distance] km from the applicant’s home area. He had one employee. Along a similar model to the earlier business, this brokered [certain commercial deals]. The applicant told the Tribunal that he operated this company up to the time of his most recent departure from India; he simply abandoned it. [2]

    [2] In his protection visa application, the applicant indicated that he sold the business in 2013, and was unemployed from that time. He confirmed at the hearing that this was incorrect.

15. The applicant adults married in October 2007. The applicant wife is a [age] year old woman from [town], Punjab. She attended school for [number] years, and her occupation is given as housewife. The applicant child is the couple’s [age] year old [child], born in India. The applicant’s parents live in [Town 1], as does [a sibling].

16. The applicant holds an Indian passport issued in [2010]. He and the second-named applicant first entered Australia [in] May 2013, as the holders of [temporary] visas. They departed [in] June 2013. All three applicants then entered Australia on [temporary] visas [in] June 2014, which were valid for three months. As noted above, they lodged a protection visa application [in] August 2014, some seven weeks after their arrival.

17. The applicant stated at the Tribunal hearing that he was given permission to work in Australia, and found a [job]. However, he was fired when he complained about the unfair conditions. He now receives Centrelink payments. His [child] is attending school. The applicant said that a key reason he wished to obtain a protection visa was to secure his [child]’s future in Australia.

    Evidence

18. The evidence before the Tribunal includes the following relevant material:-

    §The applicants’ protection visa application forms lodged [in] August 2014, which includes the applicant’s handwritten reasons for seeking protection in Australia

    §Attached to the protection visa application are various papers:

    -Partial photocopies of their Indian passports (biodata and back pages), the parents’ marriage certificate, and the child’s birth certificate

    -Copies of the notifications of the grant to them of [temporary] visas

    -Various notarised affidavits confirming aspects of the applicant’s protection claims, with copies of the authors’ driving licenses, from: (a) [name]; (b) the applicant’s parents; (c) [name], and (d) [name]

    §The Department file includes case notes associated with the grant of the applicant’s visa applications.

    §The Protection visa decision record (‘delegate’s decision’) [in] June 2015, which is the subject of this review.

    §The application for review has attached to it a copy of the delegate’s decision record.

19. The first-named applicant appeared before the Tribunal to give evidence and present arguments, on 27 February 2017. The hearing was conducted with the assistance of an accredited interpreter in the Hindi and English languages. The applicants are unrepresented in this matter.

20. The applicant confirmed that the second-named applicant did not have any protection claims of her own, and that she was aware of the Tribunal hearing. She had been unable to attend because she was collecting the [child] from school.

21. During the course of the review, the applicant requested the Tribunal to postpone his hearing, first by six months and later by two months.[3]  He said that he needed to obtain evidence from the police department relating to his case. The Tribunal declined these requests, advising that the applicant would have an opportunity at the Tribunal hearing to discuss any documentary evidence he was waiting for, and explain if he needed more time to obtain this.

    [3] For instance, in the applicant’s email of 23 January, a telephone call on 27 January 2017 and then in an email dated 1 February 2017.

22. Again at the Tribunal hearing, the applicant asked the Tribunal for further time to obtain evidence. He explained that there might be draft First Information Reports (FIR, a police document recording information about the commission of a cognisable offence) or actual FIRs on police files in [Town 1]. He needed time to check whether there were such files; this could require months, given the slow pace of bureaucracy in India. The Tribunal noted that the applicant had been in Australia for more than two and half years. According to his evidence at hearing, he was in receipt of Centrelink benefits and not working or otherwise busy. The Tribunal observed that he would therefore seem to ample time to seek further materials from India, if needed. The applicant explained that a friend had just joined the local police, and as a consequence, the applicant had for the first time informal access to police files. He declined to give the Tribunal the name of this friend, or evidence that this person had just joined the police (despite the Tribunal’s assurance that its proceedings were confidential). The Tribunal was concerned at the vague nature of the applicant’s request for more time, and his reluctance to provide details of either the documents he was seeking or their source. It agreed to receive any further material one week after the hearing, ie by 6 February 2017.

23. The Tribunal has received no further submissions, and has therefore decided to finalise the decision on the material currently before it.

24. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in on certain folios of Department file [number] would be contrary to the public interest.

    §  First, under s.438(1)(a),  the certification states that folios 139-144 contain information regarding internal working documents. These are Department case notes and enquiries both prior to the grant of the [temporary] visa and following the applicants’ failure to return on time.

    §  Second, under s.438(1)(b), the certification states that folios 145-146 contain information affecting personal privacy. These are documents relating to a [person].

25. The Tribunal informed the applicant of the existence of the s.438 certificate. It advised its preliminary view that the s.438(1)(a) certification  was not valid, as it did not pertain to a public interest. It also advised its preliminary view that the s.438(1)(b) certification was valid, as it involved the privacy of a third [party]. It added that the delegate had included the relevant information from these folios in the decision, and that the Tribunal did not consider that there was any further relevant information that was subject to the certificate. The applicant noted this. He did not provide any submission or comments regarding the validity of the certificate.

    Country of Reference / Receiving Country

26. The applicants claim to be nationals of India. The Tribunal has before it partial photocopies of their Indian passports and a range of other Indian documents. All the available evidence, including the applicant’s oral evidence and familiarity with India, supports their claim to be Indian nationals. India s therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.

    Assessment of claims: credibility

27. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

28. The Tribunal has significant concerns about the credibility of the applicant’s claims and evidence. It found much of his narrative to be vague and changeable. Of particular concern was the disconnect between the applicant’s claims that he had been subject to ongoing threats and police mistreatment - and his prolonged stay in India ,and his return there on two occasions, after trips to both [country] and Australia.

29. The Tribunal notes that there were other instances of conflicting or incomplete evidence which, while less central to his protection claims, added to its concerns about the overall reliability of his claims. For instance, it was only at hearing that the applicant gave a consolidated account of his employment and activities after finishing school, and clarified the conduct of his business during 2013 and 2014.

30. At hearing, the applicant declined to discuss several aspects of his case, such as the claimed physical assaults, police detention and alleged mistreatment. He commented briefly that he does not remember details of these incidents. The Tribunal impressed on him the need for it to understand what happened in India, but the applicant replied that he is trying to forget this. The applicant implied that recalling these events causes him stress. However, there is no suggestion that the applicant has any medical or similar reasons for being able to recall and discuss his experiences in India. The Tribunal formed the impression that he was aware of the inconsistencies between his written statements and his statements at the Department interview (as evidenced by the delegate’s decision record, a copy of which he gave the Tribunal), and/or was unsure about being able to respond to the Tribunal’s questions with meaningful detail.

31. The Tribunal has taken into account that the applicant’s written statement of claims appeared to have been hastily prepared. At hearing, he said that he paid someone $[amount] to fill out the form, and it appears that he did not check the contents for completeness or accuracy. In the Tribunal’s view, this may raise some questions about the applicant’s seriousness in seeking protection, but it draws no broad adverse inferences from the sometimes incomplete or inaccurate information on the application form.

32. Towards the end of the Tribunal hearing, the applicant said that he does not want to live in Australia like a beggar. The Tribunal understood him to be voicing his frustration at the application process (including the successive interviews he has had), and his disappointment that he and his family have not yet achieved permanent residency. The Tribunal appreciates that the applicant is anxious about his family’s migration status – and in particular, his [child]’s prospects. However, it considers this to shed very little light on the veracity of his protection claims, or his need for protection.   

    Business conflicts

33. The applicant’s claims arise from his dealings with his former business partner, [Mr A]. Given that this person is the applicant’s claimed persecutor[4], with political connections and influence with the police, the Tribunal sought details of his background and the applicant’s association with him.

    [4]  Or the person responsible for inflicting or orchestrating significant harm against the applicant

34. The applicant told the Tribunal that [Mr A] had been [occupation] at one of the factories for which the applicant (in his first job) used to provide [certain] services. In around 2004, the applicant left that job, and was contemplating doing some [studies] in [location]. Around that time, [Mr A] approached him with the idea of going into business together. The applicant said [Mr A] had no experience in the [certain] sector, but was simply trying to increase his income by setting up his own business. The applicant was naïve at the time, and did not check [Mr A]’s background. However, [Mr A] was persistent, and eventually persuaded the applicant to form a partnership with him.

35. The applicant said that [Mr A] has political and official contacts. The applicant only became aware of these over time – he learned that [Mr A] was going to political party meetings, or receiving political visitors. The applicant did not provide any specifics when discussing these things. In reply to the Tribunal’s questions, he said that their [business] did not rely on [Mr A]’s political contacts for commercial purposes – there was no need for that.

36. The applicant claimed that over time he came to realise that [Mr A] was being ‘unfair’, by which he meant that he was cheating on the applicant and embezzling money from the partnership. In 2009, the applicant decided to leave the partnership.

37. The applicant said that he did not have any contact or dealings with [Mr A] since he left their partnership in 2009. The Tribunal asked whether the applicant had further information about his family background, past employment and finances, and other circumstances. The applicant replied briefly that he knew nothing else.

38. The Tribunal finds several aspects of the applicant’s evidence about [Mr A] troubling. First, his claim to have had no further contact with him since 2009 does not sit well with his protection claims - in which he stated that [Mr A] harassed his family for years, or at least arranged for others to do so on his behalf; and that he will likely do so again if the applicant returns to India. Second, and related to this, the Tribunal considers it odd that the applicant has not tried to find out more about his alleged persecutor, even if only to gain some sense of his origins and his capacity to harm the applicant and his family.    

39. The applicant said that [Mr A] continues to run the business in [Town 1], but it has not done well because [Mr A] lacks the applicant’s expertise. Meanwhile, the applicant set up his own business in [Town 2]. This was a busier centre, and the applicant also competed with [Mr A] for clients in the [Town 1] area.

40. The Tribunal is satisfied, on the available evidence, that the applicant was a partner with [Mr A] in a [certain] company; that the partners fell out’ and that the applicant set up a similar business in [Town 2]. However, the Tribunal has significant doubts about the applicant’s claims that [Mr A] is active in Shiv Sena, and has political and official contacts, which he later harnessed against the applicant – it makes findings on these claims below.

    Pursuit of the applicant by business partner and the police

41. The applicant claims that [Mr A] is motivated to harm him, and that he enlisted the police and political forces to assist him. He claims that there was ongoing harassment, and one or more instances of physical harm, all of which had the cumulative effect of motivating the applicant to leave India with his family, for their safety.

42. Harassment: The applicant claimed that [Mr A] harassed him and his family for more than five years, leaving them in fear. At the Department interview[5] and the Tribunal hearing, the applicant said that the harassment began around 2010 or 2011, when [Mr A]’s business started to decline and he suspected that the applicant was poaching customers. At hearing, the applicant said that he could not be more specific about the timing or circumstances of the harassment. He said that he did not recall these things, and wanted to forget them.

    [5] The Tribunal relies on the delegate’s decision record, which the applicant provided to the Tribunal.

43. Physical assault(s): The applicant claims that there were one or more physical assaults (or attempted assaults), but the detail beyond that is highly variable. In his original statement of claims, the applicant wrote that he escaped a physical attack in February 2012. At the Department interview, he said that the harassment began in 2010, with threats and a few physical assaults. He later said that there was just one assault, in February 2012, and it involved a slap. The four affidavits he presented, however, all mention that [Mr A] physically attacked him twice.

44. At the hearing, the Tribunal asked the applicant about any instances of threats or physical harm. He responded that these things did occur, but he could not remember whether they did s once or twice. He reiterated that he wants to forget everything. He again reminded the Tribunal of his interest in seeking more time for submissions. 

45. Police actions: The applicant claimed that [Mr A] made false allegations to the police about him. In about 2010 or 2011(the applicant was not sure when), [Mr A] registered complaints that the applicant had cheated him. The applicant believes that [Mr A] bribed the police to do so; he said that it is easy to do this in India. He told the Tribunal that the police used to call him in the morning, and then detain him. This happened on many occasions – the applicant could not recall how many.

1. The applicant said that he bribed the police on two occasions – or maybe three. He once paid them Rs [amount][6]; and on a second occasion, maybe Rs [amounts]. The Tribunal asked, if the applicant had been detained on many occasions, what happened on those occasions when he did not pay a bribe to be released. The applicant said, in a somewhat unfocused manner, that often he had his own people come to the station, so that the applicant could present his own case and argue for his release. Also, he commented, the police were just intent on harassing him; in the end, they realised that the charges were probably false.

   [6] Approximately AUD [amount] at current exchange rates

2. At hearing, the Tribunal asked the applicant about the mention in his original statement of the police having detained him for many hours, and having started to ‘torture’ him. The applicant replied briefly that he did not wish to discuss this. The Tribunal is mindful of the sensitivities when discussing instances or mistreatment (such as torture) with asylum seekers. Aside from a general caution to the applicant that it was in his interest to present his claims and evidence, it decided not to press him for a response on this. In the context of his overall evidence, however, the Tribunal formed the view that he was again being evasive.

3. The Tribunal has examined the affidavits that the applicant presented, from his parents and from three friends, all of whom declare (among other things) that the applicant’s former partner ‘has lodged some false complaints’ against him. The Tribunal gives these statements limited weight as independent corroboration of the applicant’s account. The authors are all family and well-wishers, and there is nothing to indicate that they have drawn on first-hand knowledge (for instance, that they have sighted any false complaints).

4. The Tribunal queried how, if the applicant was subject to repeated detentions and similar harassment, he managed to sustain and grow his [business], particularly given his customers’ need for timeliness and reliability. The applicant replied that, in fact, he started to reduce his business activities. As for information that he had provided to the Australian authorities showing that his business income had grown between 2012/2013 and 2013/2014[7], the applicant said that he had declared an inflated income in his tax returns, in order to enhance his chance of obtaining an Australian visa. Responding to the Tribunal’s surprise, he said that he had submitted genuine income tax return documents with his visa application; he did not mind declaring to the Indian authorities that he had a higher income, as income tax rates were not so high.

   [7] The Tribunal drew on information set out in the delegate’s decision record

5. The applicant confirmed that, despite first becoming aware of the false charges in 2010 or 2011, he never received any paperwork and the police had taken no court action. He said that the police were intent on getting money from him. Reminded of his earlier evidence that he had paid them bribes just two (or perhaps three) times over a number of years, the applicant explained that they were also just trying to scare him (implicitly, on behalf of [Mr A]).

6. The applicant has never received a summons, or any other document or details concerning the alleged false charges. As noted above, he asked the Tribunal for time to check whether police files contain some FIRs, in either draft or final form. He said that a friend has just joined the local police, and might be able to access the files relating to the applicant. The applicant was not sure that such documents exist, and he declined to give the Tribunal details or other meaningful information about the friend who might now be in a position to help him. The Tribunal is not satisfied that the applicant has such a police friend, and is genuinely concerned for his welfare. Rather, the Tribunal formed the view that the applicant was being vague and evasive, and that he was seeking to delay the review.

7. Mistreatment of family members: In his original statement, the applicant wrote that his family members suffered as a result of his mistreatment. For instance, his wife had been unable to go out, and his parents became depressed. The affidavits from friends also mention that his family became depressed, and his parents wrote: ‘we are also very upset and got tensed from these incidents’. The applicant confirmed that the family was living under pressure, and that it was a tense situation for all concerned. He did not provide more specifics.

   Findings

8. The Tribunal has considered the applicant’s claims and evidence individually and cumulatively. It found his evidence about [Mr A]’s political (Shiv Sena) and official links to be vague. As noted above, his account of [Mr A]’s pursuit of him – whether directly, or through police harassment, detention, bribes and the looming threat of false charges – or in any other way, to be vague, changeable and mainly unsubstantiated. The affidavits from friends and family do not resolve the Tribunal’s doubts and concerns.

9. The Tribunal does not accept that [Mr A], the local police or anyone else harassed, threatened, physically assaulted, detained, mistreated (or ‘tortured’), demanded bribes or ransom money, targeted family members, or intimidated or caused psychological harm to the applicant or his family members. Although the Tribunal accepts that the applicant and [Mr A] may have been business rivals, it does not accept that he is a person with Shiv Sena or other political contacts, or with police connections, who was motivated or tried to harm the applicant in any relevant way.

   The applicant’s conduct – return to India in 2013

10. The applicant parents visited Australia in May-June 2013, as [temporary entrants], and returned to India[8]. They came back to Australia, as a family unit, [in] June 2014. As discussed at the hearing, the applicant’s voluntary return to India in June 2013 adds doubts to his claims that he had been subject to harassment, false charges and other harm since 2010 or 2011. In response the applicant said that he and his wife visited Australia, and left their [child] with his parents. The applicant said that he could not leave his [child] in India with his parents, and his wife could not travel to India unaccompanied. He was left with no alternative but to return to India together with her.

    [8] The Tribunal drew on information set out in the delegate’s decision record.

11. The Tribunal recognises that cultural norms might influence such travel plans, and therefore places limited weight on this factor. However, it is noteworthy that after his return to India, the applicant remained there for a year, and even resumed his [business] (which he said he abandoned only on his last departure). Furthermore, as the Tribunal observed at hearing, the applicants obtained Australian visas [in] June 2014, but did not depart for more than three weeks. The applicant said that there was no untoward delay in their departure, as they had to arrange tickets and make other preparations.

12. It is the cumulative effect of the applicant’s movements (and those of his family) that reinforces the Tribunal’s findings above that he was not subject to ongoing targeting from a former business partner, with political or official contacts; that he was not subject to a range of threats and harm; and that he (and family members) did not live in fear of their safety. It further finds that the applicant did not ‘abandon’ his [business] (in the sense of leaving it in order to flee India for his safety); and that he did not depart India for any reasons associated with his now-rejected protection claims.        

    Assessment: Refugee criterion

13. The Tribunal now assesses whether, on the basis of the findings of fact above, and the applicant’s future conduct if he returns to India, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future. The Tribunal also has access to a range of general country information about India. However, given its assessment of the applicant’s personal circumstances and his protection claims, it has not drawn specifically on country information.

14. The Tribunal has accepted that the applicant ceased to operate his [business], although it does not accept that he ‘abandoned’ it in the course of fleeing persecution or significant harm. It tried to engage the applicant on his and his family’s future conduct if they return to India – for instance, place of residence, living arrangements and work. He did not wish to contemplate or discuss that prospect.

15. The Tribunal has found above that the applicant did not suffer serious harm amounting to persecution at the hands of [Mr A], the police or anyone else. Furthermore, it is of the view that the (now-rejected) feared harm is not for one or more of the five Convention reasons. Even though the applicant claimed that [Mr A] was a supporter of Shiv Sena, and drew on political and official contacts (claims that the Tribunal also does not accept), it is apparent that [Mr A]’s motivations were for private, commercial reasons, and not for the essential and significant reason of any of the Convention grounds.

16. In light of this assessment, the Tribunal finds that there is no real chance of [Mr A], the local police or anyone inflicting serious harm amounting to persecution on the applicant, for any Convention reason.

17. The Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to India. It is therefore not satisfied that he meets s.36(2)(a).

    Assessment: Complementary protection

18. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

19. The Tribunal again draws on the above findings of fact, and its consideration of the applicant’s personal circumstances as a whole. it finds that there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life, or the death penalty. The Tribunal finds no grounds that suggest he will be subject to significant harm, for any reason, if he returns to India.    

20. Accordingly, 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 India, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Assessment: Other applicants

21. The second- and third-named applicants did not make protection claims of their own, and the Tribunal is satisfied that none arise from the material before it. They therefore do not satisfy s.36(2)(a) or s.36(2)(aa).

    Conclusion

22. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    James Silva
    Member

    
    

    ATTACHMENT - 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).

    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.