1509129 (Refugee)

[2016] AATA 4746

1509129 (Refugee) [2016] AATA 4746 (21 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509129

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:21 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2016 at 6:23pm

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 applicant, [name], is [age] and claims to be a citizen of the People’s Republic of China (China). He arrived in Australia [in] September 2004 on a [temporary] visa.

2. He first applied for a protection visa [in] October 2004 the basis that he was a Falun Gong practitioner in China, had been mistreated and feared return for this reason. His application was refused and his subsequent applications for review at the Refugee Review Tribunal (2004) and the Federal Magistrates Court (2006) were unsuccessful. He remained in Australia either as the holder of a bridging visa or without a visa for varying periods of time.

3. [In] February 2014 the applicant made a second application for a Protection visa and [in] June 2015 his application for the visa was refused by a delegate of the Minister for Immigration visa under s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision and it was made [in] July 2015. The applicant also provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 16 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. His representative did not attend the Tribunal hearing.

6. The applicant gave evidence about his background, his circumstances in Australia, his previous application for protection and his claims for protection.

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

   CONSIDERATION

8. The issue in this case is whether the applicant meets the complementary protection criterion in s.36(2)(aa) of the Act.

   How does the Tribunal deal with a further protection visa application made before 28 May 2014?

9. The applicant applied for a protection visa [in] February 2014. Together with his application for review he provided a copy of the delegate’s decision record [in] June 2015. The decision record noted that he had first applied for a protection visa [in] October 2004. His application was refused [in] October 2004.

10. In his application for protection (Form B) he stated that he had previously applied for a protection visa [in] October 2004[1]. The applicant gave oral evidence at the hearing that he had previously applied for a protection visa in 2004

    [1] DIBD File [number] Form B Q 2 f. 10

11. Taking all of the above into account the Tribunal considers that the applicant made a protection visa application in 2004 and his first application was refused. He made a further application [in] February 2014 and that is the subject of this review.

12. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person.

13. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.

    [2] SZGIZ v MIAC (2013) 212 FCR 235 at [38].

14. The Federal Court in AMA15 v MIBD held that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion.[3]

    [3] AMA15 v MIBD [2015]FCA 1424 at [48].

15. Applying the reasoning in SZGIZ v MIAC and AMA15 v MIBP the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

16. The relevant law is set out in Attachment A.

    What is the applicant’s receiving country?

17. The applicant provided a copy of his Chinese passport which was issued [in] 2013 in [Australia] with a notation that the applicant had been the holder of a previous Chinese passport.

18. The applicant gave oral evidence he was born in China, he spoke fluent Mandarin at the hearing and appeared familiar with the geography and cultural aspects of Tianjin. The Tribunal accepts that China is the receiving country for the purposes of s.36(2)(aa) of the Act.

    Assessment of Claims and Evidence

19. The applicant’s claims are contained in the statement ([in] February 2014) accompanying his protection visa application and further discussed with the delegate at an interview held [in] September 2014.

20. He also gave oral evidence at the Tribunal hearing where he discussed his claims for protection.

    Background

21. The applicant’s protection visa sets out some personal details. The applicant is [age] and was born in Tianjin, China. Tianjin is a major Chinese coastal city with a population of approximately of over 15 million.

22. His first Chinese passport was issued in 2003 in Tianjin and his second in [Australia] in 2013. He lived in Tianjin immediately before he arrived in Australia.  He toured [several countries] in February 2004 and then arrived in Australia on a [temporary] visa in October 2004.

23. He attended school in Tianjin and after he finished school worked as [occupations].

24. He left China [in] September 2004 from the international airport in Beijing and arrived in [Australia] [in] September 2004.

25. He claimed that he has a de facto partner and a [child] living in Australia at the time he made his application. His parents are deceased but he has [number] siblings living in China.

26. At the interview he stated he has frequent contact with [one sibling].

27. At the Tribunal hearing he told the Tribunal he had married [in] July 2016 and that he, his wife and their [child] were living together in [suburb]. He and his wife work in a [certain] business together in [city].

28. The applicant’s parents are deceased and his former wife and [child] are living in China. He also has [siblings] all living in Tianjin. He does not have much contact with his family in China; he speaks to his [sibling] about once a year.

29. He stated after he left school in China he worked as a [occupation] and then found work as [another occupation]. He [worked in that job] but had many problems and gave up [that job] in about 1998 and then did odd jobs such as labouring. He stated that [later job] was dangerous and he was fined many times for [breaking rules]. He stated it was difficult to make a living.

30. He stated that he and his former wife lived in an older house in an area of Tianjin which was in between the city and rural areas. He and his former wife separated in about 2000 when his wife started having arguments with the applicant’s father about acquiring his property.

31. When asked about his previous travel he told the Tribunal he had saved the life of a friend by quickly getting him to hospital after he collapsed. His friend and his family were so grateful they paid for the applicant to have a holiday in [countries] early in 2014.

32. The applicant was granted a [temporary] visa for Australia in September 2004. He told the Tribunal he did not intend to visit; he had decided he intended to stay in Australia at the time he applied for the visa. He claimed that he went to an agent who arranged his [temporary] visa. He claimed a friend had previously told him to come to Australia.

    Previous claims of Falun Gong practice.

33. As set out in the delegate’s decision record the applicant applied for protection in 2004 on the basis he was a Falun Gong practitioner.

34. At the interview with the delegate [in] September 2014 the applicant stated he was not a Falun Gong practitioner and all the claims relating to his first application were untrue.  He stated he had never been a Falun Gong practitioner and had never been imprisoned or tortured. He stated he gave his friend $[amount] to apply for a visa for him and his friend had swindled him. He stated he was encouraged to follow the advice of a fake lawyer in his first application and this is why he did not pursue his claims of Christianity over false Falun Gong claims.

35. At the Tribunal hearing the applicant claimed that he paid money to an agent to make an application for a visa. He told the agent he wanted to live in Australia for a while before he returned to China. That person made up claims that he was a Falun Gong practitioner. At first he claimed that the agent did not ask him about his claims and his details but then agreed he had been asked some questions. He claims he told the agent he had been a Christian in China and he had never practiced Falun Gong but the agent completed his form and made claims that he was a Falun Gong practitioner on his behalf. The Tribunal put it to him that it was strange that his agent had made false claims of Falun Gong practice when he had given them information about his claimed attendance at Church and studying the Bible. He stated they told him to say he was a Falun Gong practitioner.

36. The Tribunal put it to him that his first protection visa application had been refused by the Department; he sought review in the Refugee Review Tribunal (RRT) and made an application to the court over a two year period but did not take any steps to amend his claims during that time. The Tribunal put it to him this might suggest that he had not given truthful evidence in his early claims and was not concerned whether he told the truth in achieving his migration objective.

37. He disagreed and claimed that his agent was responsible for the false Falun Gong claims and that he had told his agent about his Christian claims.

38. The applicant has given evidence that he has never practised Falun Gong in China or Australia. Accordingly the Tribunal finds that the applicant is not, and never was, a Falun Gong practitioner in China or Australia and did not suffer any mistreatment or harm in China for this reason.

    Christian Claims and claims of mistreatment

39. The applicant claimed in his statement [in] February 2014 that he had been familiar with Christianity since the 1990’s as there were several family churches in the area in which he lived.

40. He claimed that he was at a low point in his life in the 1990s. He felt frustrated and wanted to hurt himself but his friends brought him to the church and gave him hope when he was looking for his goals in his life. He claimed he felt warmth and understanding in this family and continued going to church even under the dangerous conditions which existed during those years.

41. In 1998 he claimed police officers broke into his churc h and smashed the church including the cars parked outside. They also arrested several brothers and sisters including his best friends. A few weeks later his friends were released but they told him they were kept in an interrogation room of the detention centre and were charged with undermining the social order. He claimed they had wounds all over their bodies and looked exhausted. However his friends told him that despite this treatment they would continue with their Christian beliefs.

42. In 2003 his church in Tianjin was searched and cleared again. He was not attending church at that time because he was looking after his family at home so he was not affected by this closure. However after this event he felt that it was difficult to be a Christian in China and he applied for an Australian visit visa with the help of his friends and family and finally arrived in Australia in 2004.

43. He claimed he started going to church in [suburb] in 2006 and received baptism. Since he came to Australia he has not felt fearful and has become used to life in Australia with the help of many brothers and sisters. He is able to go to church without fear and attend all kinds of church activities every week. The brothers and sisters care for him and make him feel that every day is good for him he and he has a new understanding of life in a new family in Australia. He is willing to give his life to God and glorify him. He cannot return to China because he knows once he goes back he will not be able stay with God peacefully or one day he will be detained like other Christians.

44. In the interview with the delegate [in] September 2014 the applicant stated he first accessed Christianity in China in April 1990. He claimed that he lived in an area in which there were a number of family churches. He was in a low mood because his [child] was sick and work was not easy. His friend took him to church and it put him in a better mood. There were a group of about [number] people in the group; he went every month and they read from the Old Testament.

45. He claimed that [in] July 1998 he rode his bike to attend a church gathering at 7pm. He stated a dog barked outside and suddenly there were police outside saying they would arrest him. He ran away and hid in some bushes and his feet were injured and he could not move because of his injuries. The police smashed cars and arrested [number] people. He claimed he returned later that night to collect his bicycle. A month later the group resumed gatherings and he claimed they met about once a month.

46. In 2003 the church gathering was disrupted by police and the applicant decided to leave for Australia. The applicant stated that nothing had happened to him in China because of his Christian beliefs.

47. He told the delegate he had not considered attending the registered church in China.

48. The applicant stated he read the Bible every night, however, the delegate found he was not very conversant with much knowledge from the Bible. Further the applicant was questioned about other Christian beliefs but his knowledge was limited.

49. The applicant claimed he attended Church every week since 2006 and was baptised [in] December 2011. He was not familiar with the name or address of the Church. The applicant provided photographs of himself at [Church 1] apparently taken [in] February 2014. He claimed that he attended with his de facto spouse and child and that the congregation read the Bible, worshipped God, listened to a sermon, prayed and sang songs.

50. He claimed he spoke frequently to his [sibling] and encouraged [sibling] to read the Bible even though [sibling] is not a Christian.

51. He claimed at the interview that police had been to [this sibling]’s home two years after he left but had not told [sibling] what they were looking for.

52. At the Tribunal hearing the applicant stated that his representative helped him complete his application for a protection visa and statement. He was asked some questions and the statement was prepared by his representative.

53. He claimed that he feared returning to China because the government were making arrests of Falun Gong practitioners and people like him.

54. When asked to further explain he stated that one day sometime in the 1990’s they started arresting people who were attending a church gathering in his home town of [name]. He used to occasionally go to a family church in this area. When asked to describe this church group he stated they were very secretive and used to chant sentences from the Bible. He claimed that people were being arrested because the government claimed it was an evil religion.

55. He stated that the church gathering usually took place in private homes in [name] village. About [number] people attended and they sat in the house and read the Bible together. It was just a Christian church. When he was living in China he did not understand that Christian churches had different denominations; he only learnt this when he came to Australia.

56. On the day of the arrests he had not gone to church that day; someone called him and told him [number] people had been arrested. The Tribunal asked him to confirm his evidence he had not been present when these arrests took place and he stated he wanted to go but he was not there. He kept his distance for six months and then resumed attendance. The people who had been arrested had been released and told him he could return to church. He used to attend about once every two to three months.

57. The Tribunal asked him if he could explain why he told the delegate he had been present in 1998 at a church gathering where police broke into the church, smashed cars and arrested some members of the church but he escaped and hid in the bushes and sustained injuries to his feet before returning later to pick up his bicycle. He stated that he was told these things and that he did not go back to the church for about six months.

58. When asked if anything else happened to him he stated he had heard that people were under surveillance.

59. Whilst he lived in China he did not attend the registered church in Tianjin and gave as a reason the fact that the family church was close to his home and he could ride his bicycle there. He stated that he thought that there was only one registered church in Tianjin; however, the Tribunal put it to him that country information indicated that there were a number of registered churches in Tianjin.

60. The Tribunal asked him what made him decide to leave China in 2004. He stated that other people from the church said that members could hide overseas and not be subject to the Communist Party. The government was trying to punish people for attending the Christian churches. He also stated that officials tried to get money from people.

61. He agreed that he had not suffered any mistreatment in China for reasons of his Christian attendance. The Tribunal asked him about his statement to the delegate that the police had come to his [sibling]’s home two years after he left. He stated he did not know why they came he had not done anything illegal. The Tribunal put it to him that if the authorities had any adverse interest in him they would have been aware he had left China as they had a comprehensive and connected data base[4] which would have recorded his departure two years previously.

    [4] CHN104762.E China: The Public Security Bureau (PSB) Golden Shield Project, including implementation and effectiveness; Policenet, including areas of operation; level and effectiveness of information sharing by the authorities (2010-February 2014) Research Directorate, Immigration and Refugee Board of Canada, Ottawa 7 March 2014

62. When asked what he thought might happen to him if he returned to China he stated that officials would look for records of him attending a Christian church in China and he might be held in custody. He gave instructions to family members that if the PSB (police) visit they should not tell them anything about him. The Tribunal put it to him that nothing had happened to him so the authorities would not have any record of his attendance at a family church.

1. The Tribunal asked him why authorities would be interested in him. He stated that the police who raided the church would have seen him at that time and remembered he had been a member of that church. He claimed that a police officer stated that he could run away on that day but he would find him one day. The Tribunal put it to him that if a police officer had made this statement in 1998 it would expect he would have taken action against him in the six years before he left China in 2004. This evidence also contradicts his earlier evidence that he was not present at the incident in 1998. Further the claimed incident took place in 1998 and it is not plausible that a police officer would seek to take action against him some 18 years later.

2. The Tribunal put it to him that nothing had happened to him in China up to his departure in 2004 and there is no reason why something would happen some 12 years later if he returned to China. He stated he was scared.

3. He told the Tribunal he started attending [Church 1] Church in 2006 and had been baptised there. The Tribunal asked him why the statement accompanying his protection visa had referred to a Christian Church in [another suburb]. He stated it was the same church; he stated that [certain suburbs] were located in the same general area. He claimed he attended the Chinese service at this church about once a week or fortnight with his wife and [child].

4. Since he moved to [suburb] he started attending [Church 2] about 2 years ago. He could not recall the name of the church but thought it might be [name]. He and his wife and child attend once a week or fortnight.

5. The Tribunal asked him about special days celebrated at the church and he referred to Christmas and Mother’s Day. He described the interior of the church and described the order of the service in very general terms. He was not able to name or recite any special prayers said regularly at church.

6. The Tribunal put it to him that his evidence suggested he had attended church occasionally but was not a committed churchgoer or member of the congregation. He stated that he read the Bible every day but when asked to describe what parts he read he stated he just read it like a book.

7. The Tribunal put it to him that if he returned he could attend a registered church in China and that millions of Christians attended the registered churches. It noted that there were a number of registered churches in Tianjin. He stated he was not sure and it had been many years since he lived in China and he had little contact with his family. 

8. The DFAT Thematic Report on unregistered religious organisations and other groups in the PRC (3 March 2015) notes;

   2.8 The Chinese government limits religious practice to five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) and members are required to register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA[5] and are required to adhere to the principles of independence and self-governance from foreign associations. Registered religious organisations are permitted to possess property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.

   …2.12.    Chinese government statistics state there are approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Officially, there are approximately 5,500 religious groups, along with nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity. The Chinese government states there are 360,000 registered clergy.

   [5] SARA –State Administration for Religious Affairs

9. The Tribunal further put to him that country information indicated that small Bible study groups conducted at home were generally tolerated[6]. In response the applicant stated that China was developing very quickly.

   [6] DFAT Report on unregistered religious organisations and other groups in the PRC -3 March 2015 p3.1 and 3.2.

10. The Tribunal does not accept that the applicant attended a family church in China and does not accept that he held Christian beliefs in China. The Tribunal considers that if he had attended a Christian Church in China that he would have made these claims in his first protection visa application and does not accept his explanation for the omission of these claims.

11. The Tribunal considers the applicant made false and untruthful claims in his first application for protection. He claimed his representative was responsible.  However, his first application took over 2 years to finalise. It was made in October 2004, he then applied to the RRT for review, did not attend the Tribunal hearing and he then applied for judicial review. His application was finalised by the court in August 2006. The applicant gave evidence that he was aware that his claims were false and the Tribunal finds he did not take steps to amend his claims for protection during this period. This leads the Tribunal to conclude that even if his agent had initially fabricated these claims, he was aware that these claims were false but was complicit in pursuing his false claims through the RRT and the court. The Tribunal considers if he had attended a family church in China he would have made some attempt to amend his claims during the period of consideration of his first application.

12. The Tribunal considers that this indicates that the applicant is not a truthful witness and has is prepared to give or be complicit in giving false evidence to achiever his purpose. This leads the Tribunal to conclude that his current claims of attending church or having Christian beliefs in China are not truthful.

13. He claims no mistreatment in China but has given evidence that he was involved in an incident in which his church was damaged and some members of the church were arrested in 1998. However, the evidence he gave at the Tribunal hearing about the incident in 1998 is markedly different to the information he gave the delegate at the delegate’s interview. He told the delegate that he attended church [in] July 1998 and police were outside threatening to arrest him before he ran away and hid in some bushes and injured his feet. The police smashed cars and arrested [number] people. He claimed he returned later that night to collect his bicycle. A month later the group resumed gatherings and he claimed they met about once a month.

14. He gave evidence at the Tribunal hearing that on the day of the arrests he had not gone to church that day; someone called him and told him [number] people had been arrested. He stated he was not present when these arrests took place; that he had wanted to go but he was not there. He kept his distance from the church for six months and then resumed attendance.

15. The applicant was not able to satisfactorily explain why his account differed from the account given to the delegate. The inconsistency is significant; in one version he was present when the church was attacked by police but he escaped and in the other version he was told about the attack by other people. The Tribunal does not accept that the applicant attended a family church and does not accept he was involved or heard about in an incident in which some church members from this church were arrested in 1998.

16. In his written claims he stated that his family church was searched in 2003 and this made him uncomfortable and as a result he decided to leave China. The applicant did not repeat this evidence at hearing and the Tribunal does not accept that this was the reason he left China because it does not accept he was a member of a family church as claimed.

17. The applicant does not claim and the Tribunal does not find that the applicant suffered any mistreatment in China arising from church attendance or belief in Christianity. Whilst it accepts he does not want to return to China because he has established himself in Australia it does not accept that he genuinely fears he will suffer harm if he returns to China.

18. The applicant claims that he has been baptised and attended church in Australia since 2006. He claims he initially attended [Church 1] and now attends [Church 2]. He claims that he attends with his wife and [child].

19. The applicant has lived in Australia for many years (2004-2016). The applicant’s evidence is that he divorced his wife in China and remarried his de facto spouse in Australia in 2016. He provided a copy of his NSW marriage certificate which confirms that his marriage has been registered. The applicant’s wife did not attend the Tribunal hearing and did not provide any evidence relating to the applicant’s claimed church attendance.

20. The applicant has provided photographs of himself at church and was able to describe the interior of the church he claims to be currently attending. He was able to make some observations about the Sunday church service which suggested he had attended from time to time. However, the Tribunal does not accept that the applicant is a committed Christian. He appears to have a rudimentary knowledge but did not display the knowledge or actual experience of a person who had been committed to Christian practice or who had consistently attended church on a regular basis for a number of years. He was not aware of significant Christian holy days, he did not know the name of the church he is currently attending, could not identify which parts of the Bible he frequently read and was not familiar with any ritual prayers said regularly at church services.

21. The Tribunal does not consider that his level of knowledge and commitment is consistent with a genuine and committed Christian convert. The Tribunal considers that the applicant has attended church from time to time in Australia but is not a committed Christian and that the purpose of his attendance at church has been to strengthen his claims for protection.

    Does the applicant meet the complementary protection criterion?

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

23. The Tribunal has found that the applicant left China legally on his own passport and had not been a Falun Gong practitioner or a Christian whilst he lived in China. He stated he had not done anything illegal in China and also gave evidence that he had not suffered any mistreatment in China before he left. He has not claimed to have been involved in any other activity which might cause him to suffer significant harm if he returned to China.

24. The Tribunal has considered whether he applicant’s occasional attendance at a Christian church in Australia would put him at risk of significant harm if he returned to China. The country information in the DFAT report on unregistered religious organisations and other groups notes that;

    2.11 Broadly speaking, DFAT assesses religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government. Religious adherents are therefore subject to a range of restrictions that vary in extent and intensity according to local conditions. Given this, it is difficult to generalise about religious practice in China but basic assumptions can be made according to whether people exercise their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not religious expression is perceived by the government to be closely tied to broader ethnic, political or security policies.

25. The country information indicates that the state authorities allow religious observance in one of the state sanctioned churches. The Tribunal put it to the applicant that if he wished to attend church in China he could attend one of the registered churches without restriction. He stated that he had been away from China for a long period of time and was unsure about current conditions. He did not give any other reasons for not being able to attend a registered church.

26. Taking into account the evidence given by the applicant and the available country information the Tribunal does not consider that attendance at a church in Australia would put the applicant at risk of harm if he returned to China. There is no country information available to the Tribunal suggesting that attendance at a Protestant church in Australia would put the applicant at risk of harm. It also considers that if the applicant did want to attend church that he could attend one of the state sanctioned churches and he would not suffer any harm for that reason.

27. Accordingly the Tribunal does not accept that the applicant will face a real risk of being arbitrarily deprived of his life; or the death penalty will be carried out on him, or he will be  tortured or subject to inhuman treatment or punishment or cruel or inhuman treatment or punishment if he returns to China.

    Conclusion

28. 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).

29. 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).

30. 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

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

    Louise Nicholls
    Senior Member  21 November 2016

    
    

    ATTACHEMENT A

    RELEVANT LAW

32. 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

33. 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).

34. 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.

35. 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.

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

37. 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.

100.   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.

101.   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.

102.   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.

103.   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.

104.   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

105.   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’).

106.   ‘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.

107.   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

108.   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.