1508966 (Refugee)

[2017] AATA 249

1508966 (Refugee) [2017] AATA 249 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508966

COUNTRY OF REFERENCE:                  Mongolia

MEMBER:Lilly Mojsin

DATE:8 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2017 at 1:37pm

CATCHWORDS

Refugee – Protection visa – Mongolia – Domestic violence – Kidnapping – Credibility issues – Effective State protection available

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 [PVA] under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Mongolia, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] June 2015.

3. The applicant appealed that decision to this Tribunal on 3 July 2015, attaching a copy of the Department decision.

4. The applicant appeared before the Tribunal on 1 February 2017 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The applicant, at the Tribunal hearing, acknowledged that she understood the interpreter

   RELEVANT LAW

6. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In her PVA, the applicant who arrived in Australia as the holder of a student [visa] granted [in] February 2014, stated that she left her husband and child in Mongolia. She claimed that she decided to leave her husband after he cheated on her in 2010. Their child was born in [year].

8. She tried to see her child in the street near where she lived with her father but her husband threatened her when he found out. When she continued to see her daughter this way, her husband beat her on many occasions. She has continued to try to see and keep contact with her daughter. Her husband has called her and told her he would rather kill her than let her have contact with her daughter. Her mother has called her from Mongolia to tell her that her husband intends to kill her when she returns to Mongolia. She fears her husband and members of his family. All Mongolian law enforcement is corrupt and will only act to protect a person if they are bribed, she will find no justice in Mongolia.

9. The applicant’s Mongolian passport issued [in] 2012, attached to the applicant’s file, shows that the applicant from [date].1.2010 entered China, stayed 30 days and returned to Mongolia for less than a day.

10. The applicant did not attend a PVA interview scheduled for [date] June 2015.

11. At the Tribunal hearing, the applicant said that she is working at a [certain] job. She supports herself. Her mother looks after her daughter in Mongolia.

12. She applied for a PVA because it was difficult and dangerous to live in Mongolia. There is a threat from her daughter’s father. He was beating and punching her. She completed high school and a [course] in [China]. She worked in Mongolia in her [relative]’s [company] and also in another [relative’s business].

13. She married in 2008, her daughter was born in [year]. She and her husband separated because of domestic violence, threatening beating and raping her and when she sought protection from the authorities her husband threatened her. When they married they lived with her husband’s father. Her husband had no official job but sometimes he would import goods from China and sell them via his friend’s network. She met him [details deleted]. She knew him for about 3 months then she found out she was pregnant and they had to marry. Her father is dead, her mother was not happy but did not interfere. Her husband and family lived [number] kilometres away. The domestic violence occurred in the father-in-law’s place. Father in law was alcoholic and it happened there.

14. Initially, after marriage, the applicant lived with her mother but after their child was born they moved to the in-laws, and her husband was not at home all the time. When she called him telling him that the baby needs something, he would get really angry. He beat them and if she sought help from outside he got mad.  He mostly beat her, so she cried. When asked if she took the baby and went back to her mother’s home, she said that she was the only child and her mother was working at her [relative]’s place in China. She remained living with her husband until her daughter was [age]. She left her husband and went to stay with her mother in China. She took her daughter with her but her husband came after them and kidnapped the child back to Mongolia. Whenever the baby was taken she had to go back to Mongolia.

15. She was in China, [town], with the baby until the baby was [age]. Asked if the baby needed a passport, she said yes. When asked how her husband was able to take the baby back to Mongolia, she said he found the passport and the baby. He came with a black car and she tried her best not to let him go. He was involved with a gang. In China he had a criminal network and there is no police assistance. When asked if she immediately reported this to the police in China she said that she reported her husband after 7 days. When asked why she waited for so long to report the abduction she said that she did not report him to the Chinese police as she is afraid, they had big black cars and are a gang. Her husband had close connections with the mafia gang in that city. He came with big guys with weapons and knives and took the baby.

16. She only reported to the Mongolian police, because the gang was really dangerous. This happened in her mother’s home in China. When he took the child and left, she went to her mother and [relative] and told them what happened. They discussed it and she waited 1 day to go to Mongolia. She reported her husband to the Mongolian police and they told her they will search but they did nothing. Her husband returned with the baby to Mongolia after 7 days. She waited in Mongolia until he returned. When he turned up with the baby he refused to give her the child. He beat her. She went to see a lawyer and the lawyer said there is not much luck as they will not do anything. She went home and had to find a job and whenever she tried to take her baby back her husband showed her a knife and threatened to kill her. She only saw the child every week, just seeing the child from outside the house. This continued for a year until she made an approach to the child. The applicant and her husband are separated but she is not divorced.

17. Before she came to Australia she met up with her daughter but her husband threatened to kill her and told her to stay away.

18. The child went to stay with her mother when she applied for a PVA. The applicant found out that her husband moved in with another woman and he left her daughter with her mother in 2015. Her mother and daughter are now hiding in the countryside because she lost contact with her husband and there was a rumour that he separated from his new wife and he wanted to take the child back.

19. She cannot go back to Mongolia because her husband is searching for her daughter and if he finds them, there will be a fight over custody. Her mother’s place is locked but it is vandalised multiple times. If he finds her, he will kill her because he told her that they have hidden the child from him. She cannot even imagine what he will do.

20. Her mother and daughter came to Australia in September 2015 for [number] months and they returned in August 2016. They returned because her mother had a medical [condition].

21. Since arrival in Australia the applicant was unemployed whilst studying full time. She was supported by her friend who provided her with accommodation.

22. When put to the applicant that her husband would have had to give permission for her daughter to obtain an Australian visa, she said that her mother told him she would take their daughter to China so he signed the documents.  She also said that his friend’s network has been asking questions. He thought the child was taken to China but she thinks he heard from friends the child came to Australia. Her mother and daughter are hiding as he separated from the next woman.

23. The applicant went to [another country] for 2 weeks to see if it is liveable and see if she is employable as Mongolian citizens do not need to hold a visa to gain entry.  It was put to the applicant that she came to Australia to work. She responded that she did not work initially and was supported by a friend in whose home she lived and did the housekeeping.

24. It was put to the applicant that stamps in her passport do not support her claims. It was put that she claimed in October 2010 to have left China, after her child was kidnapped, and she remained in Mongolia for 7 days waiting until her husband returned to Mongolia, and visiting the child every week, the passport stamps show that she was in China. She responded that it is because she only had her mother and went to her mum often and that is why she went in and out often. She just checked if her child is healthy and growing.

25. Her mother applied for a PVA when in Australia in December 2015 but before any response was received she left Australia and returned to Mongolia.

26. I again discussed with the applicant her travelling to and from Mongolia and suggested that it appeared that for the whole of the year 2010 she was only in Mongolia one day per month. In the 2011 the passport stamps indicate that she again was mostly in Mongolia one day per month other than two weeks at the end of October 2011. She responded she did not visit her daughter once a week, she tried to see her daughter often.

27. I discussed with the applicant country information regarding Mongolia. I put to the applicant Mongolia does have a Family Law[1], which came into effect on August 1 1999, country information indicated that there has been a significant improvement in the operation of the law relating to family violence and family disputes in recent years and the legal system currently provides a mechanism to protect people engaged in family disputes. She responded that she reported her husband several times and the police said they will look after it. When she followed up they say it is cancelled.

    [1]

28. I put to the applicant that there are domestic shelters available. Recently the Mongolian parliament has passed a law to combat domestic violence and various initiatives have been put in place since December 2013 committing Mongolia to end violence against women and girls. These measures include restraining orders and imprisonment and went into effect on 1 September 2016. Throughout the country, lack of knowledge by police officers, social workers, and court personnel prevents victims from requesting and obtaining restraining orders.

29. She said that whoever has network with big people there is bribery and law does not work. I put to the applicant that there was nothing to prevent her obtaining a restraining order.

30. I put to the applicant that whilst corruption and domestic violence were significant human rights problems in Mongolia the government lacked the capacity to address the problems effectively. Divorced women secured alimony payments under the Family Law, assets acquired during the marriage was divided equally and the divorced wife retain custody of any children. There is a hotline maintained to receive reports of child abuse and refer them to the police. In February 2016 the parliament passed the first-ever law on child protection.

31. I put to her that her mother has returned and does not fear her husband and his attempts to take her daughter. I put that she does not have to live with her husband on her return to Mongolia. She has spent since 2010 until she travelled to Australia most of her time out of Mongolia and her husband has not attacked or harmed her.

32. I explained to the applicant that I did not accept that her daughter was abducted in view of the stamps in her passport and she responded that it happened a long time ago and she is having difficulty with dates. She said she is telling what is happening.

33. I put that she is able to seek legal advice and also seek a restraining order against her husband and any relatives if she feared harassment and harm. Mongolian police and officials are trained and now are required to accept complaints of domestic violence and deal with them according to law.

34. In relation to corruption in the police force state authorities have taken steps to counteract corruption. Whilst the law has not always been effectively implemented there are criminal penalties for corruption and the law proscribes soliciting and acceptance of bribes. The law also criminalises the offering of bribes to officials.

35. Her life is in danger from her husband, seeking her to take the daughter back. Mongolia’s 1992 Family Law provides for equal parental authority and spousal rights. In practice, the responsibility of family and childcare falls almost exclusively on women. She responded he might find her and break her arms and legs.

36. I suggested that she did not want to return to Mongolia as she wants to work in Australia. She said she was doing housekeeping and getting free accommodation. She borrowed money from her friend to pay her student fees.

37. The applicant provided the Tribunal with a notice regarding her enrolment in a course of [study].

    REASONS AND FINDINGS

38. On the basis of her Mongolian passport, I accept that the applicant is a national of Mongolia and is not a national or citizen of any other country or has a right to enter and reside in any country other than Mongolia. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Mongolia is the applicant's “receiving country” for the purposes of s.36(2)(aa).

39. The applicant claims that if she returns to Mongolia now or in the foreseeable future she will face serious harm from her husband because he has harmed her in the past, abducted their daughter and refused to allow the child to live with her or see her. She claims that she cannot access state protection because the police in Mongolia are corrupt and that her husband is a member of a gang that has influence. Whilst at the time of application for the visa her daughter resided with her husband, the child since travelling to Australia with her mother and returning to Mongolia is now in hiding from her husband who wants the child back.

40. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm.

41. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

42. I do not accept the applicant's claims that she will face serious harm if she returns to Mongolia or that she will be unable to access reasonable state protection.

43. I am satisfied the applicant is not a witness of truth.

44. Firstly, the applicant told the Tribunal that she left her abusive relationship when the child was [age] and she travelled to China and stayed with her mother who worked in China in her [sibling]’s business. When the child was [age], she claimed that her husband came to China, took the child away from her. She waited for a day and then returned to Mongolia where she waited for 7 days until her husband returned to Mongolia with the child. Thereafter she would go and see the child every week but just from outside the house.

45. Independent evidence[2] indicates that Mongolian citizens have visa free entry into China with a normal passport for a maximum stay of 30 days. When a visa is used by the Chinese authorities, a round entry stamp is placed in the passport.

    [2]

46. The applicant’s child was born in [year]. When her child was [age] round entry stamps in the applicant’s passport show that she left Mongolia for China [in] February 2010 and there was a regular pattern of entry back and forth to Mongolia. She would return to Mongolia once a month and go back to China the same day. This pattern continued for the whole of 2010 and into 2011.  

47. Relevantly to her claim regarding abduction of her child when her child was [age], in or about September/October/November 2010, the applicant’s passport showed that she stayed in China and only returned to Mongolia for a day visit. Entry and exit at the relevant time of the claimed abduction was as follows:

    ·Entry visa China [date].8.2010 and depart China [date].9.2010

    ·Entry visa China [date].9.2010 and depart China [date].10.2010

    ·Entry visa China [date].10.2010 and depart China [date].11.2010

    ·Entry visa China [date].11..2010 and depart China [date].12.2010

    ·Entry visa China [date].12.2010 and depart China [date].1.2011

48. Entry and exit continued in a similar way in 2011. When put to her that with her pattern of travel to China she could not have seen her child every week from outside the house she recanted and said that she tried to see her child as much as possible.

49. I reject her explanation that she could not remember the dates that her child was abducted because I asked her questions relative to the age of her child at the time of the abduction and she was definite in her response that her daughter was abducted [age]. As the applicant did not return to Mongolia when her child was [age] other than for a day only visit, once a month, she would not have been able to wait for 7 days in Mongolia for her husband to return with the child. I am of the view that she has created her claims in order to obtain the visa sought.

50. Secondly, the applicant was unable to explain why she did not report the child abduction to the Chinese police, but waited for in China for 1 day, returned to Mongolia and reported the abduction to the Mongolian authorities. Her explanation was that her husband belonged to a powerful gang, she is afraid as they had big black cars and are a gang, her husband had close connections with mafia gang in that city, he came with big guys with weapons and knives and took the baby. China has a responsive and well-resourced police force[3].  I have no independent evidence to suggest that members of gangs in [town] are powerful and the police would not have investigated the complaint of a Mongolian mother whose young child was abducted. I am of the view that were it the situation it would be known to independent sources such as DFAT, US State Department Report and Amnesty International who report extensively on China.

    [3] DFAT  Report China 3 March 2015

1. Thirdly, in her PVA  the applicant claimed that her child lived with her husband and when she applied for her PVA, her husband handed the child he had previously abducted to her mother and gave permission for the child to travel with her mother. When the implausibility of this action was put, her explanation was that her husband had remarried and did not want the child. I do not accept as plausible that a man who abducts a child from her mother and prohibits the mother from seeing the child, would then hand the child to her grandmother allowing the child to travel outside Mongolia.

2. Further, the applicant claims that her mother, since returning to Mongolia, is now in hiding with the child. Whilst the applicant claims her mother had to return to Mongolia due to health reasons, the mother’s return to Mongolia with the child indicates a lack of a subjective fear of persecution.

3. I am satisfied that the applicant is not a witness of truth who has created her claims of harm at the hands of her husband in order to obtain the visa sought. I therefore find that the applicant was not separated from her husband in 2010 because of domestic violence, or that he was threatening beating and raping her and when she sought protection from the authorities he threatened her. I do not accept that she tried to see her child in the street near where she lived but her husband threatened her when he found out, that her husband beat her on many occasions, that her husband abducted the child in China, that her husband refused to let her have contact with her daughter, that her husband intends to kill her when she returns to Mongolia, that she fears her husband and members of his family. I do not accept that her husband had a criminal network and there is no police assistance, that she was refused assistance in Mongolia from the police, that her mother and daughter are in hiding in Mongolia or that her husband seeks to harm them and remove the daughter from her mother.  I do not accept that her husband will kill her on her return to Mongolia.

4. I note that prior to the applicant’s departure to Australia she travelled to [another country] in order to find out if she could find work there.

5. I have considered all of the applicant’s evidence singularly and cumulatively. I do not accept the applicant is a witness of truth. I am satisfied that the applicant had no adverse profile in Mongolia prior to departing for Australia and no non-state agent sought to harm her. I find that the applicant did not suffer serious or significant harm in Mongolia and did not flee Mongolia fearing Convention related harm but travelled to Australia in order to study and obtain work.

6. I am required to consider the situation if the applicant would suffer serious or significant harm in the future if she were to return to Mongolia. I have rejected all her claims that she suffered any harm in Mongolia.

7. I accept that women are a particular social group in Mongolia. I have considered country information that indicates the applicant can access a reasonable level of state protection if she returns to Mongolia.

8. Whilst the applicant does not agree with the assessment of independent evidence discussed with her at hearing I prefer to rely on the independent evidence.  I accept that there are some deficiencies in the protections available to women in family violence situations. The general issue of domestic violence has received greater publicity in recent years and the public have a growing awareness of the issue. Mongolian police and officials are trained and now required to accept complaints of domestic violence and deal with them according to law. There are a number of non-government agencies who provide services and advice regarding human rights, family and civil disputes.

9. In its 2015 report the US Embassy[4] reported that the most significant human rights problems were corruption and widespread domestic violence. Vague laws and a lack of transparency in legislative, executive, and judicial processes undermined government efficiency and public confidence and invited corruption. Judicial and administrative tribunals lacked the financial and human resources as well as the institutional professionalism and status to function as independent and neutral adjudicators of criminal prosecutions and civil disputes. Domestic violence was pervasive, but the government lacked the capacity to address the problem effectively. Divorced women secured alimony payments under the family law, which details rights and responsibilities regarding alimony and parenting. The former husband and wife evenly divide property and assets acquired during their marriage. In a majority of cases, the divorced wife retained custody of any children; divorced husbands often failed to pay child support and did so without penalty. Eight officers under the Metropolitan Police Department’s Prevention of Domestic Violence and Crimes against Children Division. The NAC maintained a child hotline to receive reports of child abuse and refer them to the police or relevant agency. In the first nine months of the year, the hotline received 106,585 calls.

   [4]

10. Discrimination against Mongolian women persists in many areas, including political life, the workplace, and home. Various laws, such as the Mongolian Constitution, Labour Law, Criminal Code, Civil Code, and Family Law contain provisions to promote gender equality. There are two provisions in the Mongolian Constitution relevant to gender equality: Article 16(11) provides for equal rights among women and men in political, economic, social, cultural, and family life and Article 14 of the Constitution prohibits discrimination based on several grounds, including sex. The 1999 Labor Law prohibits discrimination in employment and contains a section addressing maternity rights. Despite provisions such as these, the lack of enforcement mechanisms inhibit the realization of gender equality. In the report submitted to the UN Human Rights Council in May 2015, Mongolia outlined a number of steps it has taken to prevent and combat domestic violence. This has included the establishment of a protection shelter within the police organisation, a domestic violence telephone line for emergency assistance, training for officials and police in enhancing capacity to protect and provide services and mandatory training for perpetrators.

11. In 2016, the Law to Combat Domestic Violence (LCDV) was passed by the Mongolian Parliament[5] in an important decision that addresses violence against women and girls, which the UNFPA has been supporting alongside government and civil society partners since 2007. Domestic Violence (DV) is considered as one of the most serious, prevalent and persistent human rights violations in Mongolia. Mongolian Parliament[6] voted on May 13 to make domestic violence a criminal offense for the first time in the country’s history. The law will go into effect on September 1. Domestic violence that does not result in serious injury or death will be punished by a restraining order. Domestic violence that results in serious injury or death will now be punishable by imprisonment. To create the proper infrastructure needed to support the LCVD, six other laws were amended, including the Criminal Code, Law on Law Enforcement, Law on Administrative Violations, Law on Criminal Procedure, Law on Marshals Service, and the Law on Victim and Witness Protection. All newly amended laws will go into effect on September 1.

    [5] Ulaanbaatar , 26 May 2016

    [6] >

    UNICF reports[7] on 5 February 2016 that the Parliament of Mongolia passed the first ever Law on Child Protection making a significant step towards fulfilling every child’s right to protection and with the overall aim to strengthen comprehensive child protection systems to respond to risks and vulnerabilities of children to violence, abuse, neglect and exploitation.  

    [7]

12. The Asian Network of Women's Shelters[8] website reports;

    [8]

13. The National Center against Violence (NCAV) is a non-profit, non-partisan and non-governmental organization established in 1995 with the goal of combating domestic and sexual violence against women and children in Mongolia. The NCAV is one of the first independent citizens' organizations established after the transition of Mongolia to a democratic market-based political system. The NCAV was first established with 3 staff members and 1 small shelter house in Ulaanbaatar city. Today, the NCAV works at the national level, with 20 staff and 100 volunteers at 16 branches throughout the country, and runs 5 shelter houses available for victims of domestic and sexual violence in  Mongolia .

14. For the last 17 years, the NCAV has worked consistently and systematically to: develop a system of comprehensive services for victims of domestic and sexual violence; promote the development of a favorable and effective policy framework for preventing and combating gender-based violence and protecting victims; build national governmental and non-governmental capacity and cooperation at local and national levels; raise public awareness on gender equality and human rights; and, bring behavioral and social change towards a more humane, peaceful, democratic and gender-just society.

15. According to the US State Department Report[9] the Independent Authority against Corruption (IAAC) is the principal agency responsible for investigating corruption cases. The NPA's Organized Crime Department also investigates various types of corruption cases and often assisted the IAAC in investigations. Although questions about the IAAC's political impartiality persisted, the public viewed the agency as effective. During the first nine months of the year, the IAAC reported that it initiated 185 investigations. In the same period, the IAAC reported 13 cases that resulted in convictions, 45 referred for prosecution, 24 referred to other agencies, 22 merged with other criminal cases, and 32 dropped at either the prosecutor or court level. The IAAC increased its public awareness and prevention efforts through activities such as distributing educational materials for children and conducting outreach trips to the provinces.

    [9] US Department of State Country Report for 2015

16. The applicant claimed that the police would ignore any complaint she made and the police are corrupt. I accept that there is a certain level of official corruption in Mongolia but country information indicates, and I accept, that the state authorities have taken steps to counteract corruption. Whilst the law has not always been effectively implemented there are criminal penalties for corruption and the law proscribes soliciting and acceptance of bribes. The law also criminalises the offering of bribes to officials.

17. Mongolia abolished the death penalty in December 2015[10].  There is no claim, and I do not accept on the available evidence, that the applicant faces a real risk she will suffer the death penalty or arbitrary deprivation of her life. There is also no evidence that she will face a real risk of torture.

    [10]

18. I do not accept that the applicant will be seriously harmed by her husband or any other relative if she returns to Mongolia. There is no information or claim that the applicant will face harm for any other reason. If the applicant's husband or family members make threats of harm against her, the country information indicates that state and non-state authorities can provide protection so that there would not be a real risk or a real chance that the applicant would suffer serious or significant harm. Accordingly I do not accept that the applicant will face a real risk of inhuman treatment or punishment or cruel or inhuman treatment or punishment or degrading treatment or punishment if the applicant returns to Mongolia.

    CONCLUSION

19. 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).

20. 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).

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 applicant a Protection visa.

    Lilly Mojsin

    
    

    Member

    ANNEXURE A

    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

37. 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.