1512555 (Refugee)

[2017] AATA 2764

1512555 (Refugee) [2017] AATA 2764 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512555

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Millar

DATE:28 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2017 at 9:57am

CATCHWORDS
Refugee – Protection visa – China – Involvement in a law enforcement operation – Fears harm from local official – Physical assault – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
SZBYR v MIAC (2007) 235 ALR 609

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of China, applied for the visa [in] August 2014 and the delegate refused to grant the visa [in] September 2015.[1]  The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   [1] The Tribunal's finding on citizenship is based on the applicant's Chinese passport which he produced at the Tribunal hearing.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. 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 (‘the Department’) – 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT Country Information Report China 3 March 2015.  The contents of that report are not relevant to the grounds on which this review has been determined.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that a drug trafficker and his [relative], who is a powerful public official, will harm the applicant because of his involvement in a law enforcement operation in 1997.[3]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Evidence about the operation in [1997]

   [3] The applicant's evidence to the Department and the Tribunal comprises the contents of his protection visa application forms; his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and his evidence at the Tribunal hearing.

8. To the Tribunal, the applicant gave the following account of his involvement in a law enforcement operation in China in 1997.  At that time, the applicant was employed as [an officer] responsible for [specified duties] in his home [town]. In [1997], Chinese police in his native area held an operation to apprehend and arrest drug traffickers at a location near [a specified area].  They requested assistance from other agencies including the [Workplace 1] which employed the applicant.

9. For the operation, the applicant arrived at the location in question at 7 pm and waited undercover at a nearby hillside with [law] enforcement officers.  At midnight they saw a number of people [traveling through the area] and another group appearing [nearby] to go and meet them. The applicant understood that they were all involved in drug trafficking.  At that stage the officers were given the order to go and apprehend them.  The drug traffickers all tried to flee, running off in different directions. The applicant and his [leader] pursued one of them. 

10. From his training, the applicant learned that when using a firearm to apprehend someone trying to escape, it was general practice to first fire a shot into the air and, if the person did not stop, to fire a shot at the lower part of the body.  Accordingly, the applicant asked his [leader] for permission to fire a shot from the gun he was carrying and the leader said ‘yes’.  The applicant fired a shot into the sky and then fired a shot at the lower part of this person’s body injuring him and enabling his arrest. 

11. In contrast to this evidence, in his protection visa application form, with respect to this particular incident, the applicant gave the following account (verbatim):

    “[The leader] ordered to open fire towards the [drug trafficker] and aim for the bottom half their body so they would not be able to run any further. I first fired towards the sky to scare him however he did not stop and continued running. Then [the leader] ordered to fire at his legs, without hesitation I followed the order of my superior and shot the [drug trafficker] in the leg, we were able to capture and arrest of the criminals that night.”

12. The Tribunal put to the applicant that according to this account his leader told him to fire at the person running away including telling him to fire at that person’s legs.  The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that, rather than just being ordered to shoot, he asked his leader if he could fire at this person and the leader agreed.  Further, to the Tribunal, it was the applicant’s training and general practice that caused him to first fire a shot into the sky and then to fire at this person’s lower body.  In contrast, according to his application form, he was specifically ordered by his leader to shoot the absconder in the legs.

13. In response to these discrepancies, the applicant said that the contents of his protection visa application form are an English translation of content he wrote in Chinese.  He said that any inconsistency between the two accounts was due to an error in the translation of that content.  The Tribunal can allow for errors in the translation of evidence but does not accept that this is the reason for inconsistency in his evidence on this matter.  The account given in the application form is precise about how he came to fire shots at the absconder.  The Tribunal does not accept that the inconsistency between this account and his evidence to the Tribunal is due to a mistranslation.

14. In addition, the Tribunal put to the applicant that, at his interview with the delegate, he said that he was not the only officer on the scene to fire shots at the drug trafficker running away from him.  He told the delegate that, in addition to the leader, there were two other [officers] present with them, they also fired their guns at the absconder and did so at the same time as the applicant.  The Tribunal put to the applicant that this was inconsistent with his account to the Tribunal that only he and the leader pursued this person and only he fired his gun at him. 

15. In response to this discrepancy, the applicant said that the officers surrounded the drug traffickers but only he and his leader chased the drug trafficker he eventually shot. He said that as the drug traffickers ran away other shots were fired into the air and not only with respect to the drug trafficker he shot.  He then said that he was not asked about this in detail by the delegate. He said that the delegate just asked him how many people were being chased.  The Tribunal rejects all of these responses.  The Tribunal has listened to an audio recording of the interview with the delegate and the applicant was questioned in some depth about what took place on this occasion.  He told the delegate that there were two fellow officers with him and the leader, they also fired shots at the drug trafficker he was pursuing and did so at the same time as him.  The applicant has not accounted for the inconsistency in his evidence on this matter.[4]

    Inconsistency with respect to events after the operation and before the applicant left his home town in Jilin

    [4] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

16. To the Tribunal, the applicant said that the drug trafficker at whom he had fired shots, was released from custody in approximately March 1998 through the intervention of his [relative] who was a powerful local official.  At that time, without being given any reason, the applicant was dismissed from his position at the [Workplace 1].  Later, in July 1998, the applicant was officially notified by his employer that he had been dismissed. In December 1998 he left his home town and fled to [City 1] and then other parts of China.  When asked why fled from his hometown, the applicant said that the drug trafficker’s [relative] was suing him for malicious bodily harm to the drug trafficker. When asked how he found out he was being sued, the applicant said that a document was delivered to his home notifying him of that.

17. Friends and colleagues told him that he would not be able to do anything about this because of the power held by the drug trafficker’s [relative] and that was why he decided to run away.  After giving that evidence, the applicant added that after he was officially dismissed in July 1998, someone he thought had been sent by the drug trafficker’s [relative], would come to the applicant’s home once every few days, break property and physically attack him. In addition, this person would tell the applicant that he would have to pay the sum of [amount] RMB as compensation for injuring the drug trafficker’s leg. The Tribunal asked the applicant whether the drug trafficker himself ever came to his home before he fled to [City 1].  In response, the applicant said that in late 1998 the drug trafficker came to his home once and threatened to kill him.

18. The Tribunal put to the applicant that in his protection visa application and at his interview with the delegate he made no claim that the drug trafficker’s [relative] was suing him and had left a document at his home notifying him of that.  In this respect, in his protection visa application, the applicant went no further than claiming that the drug trafficker and his [relative] demanded compensation and threatened to harm him if that was not paid.  To the delegate, the applicant said that after being released from custody the drug trafficker came to his home a number of times asking him for money because of the injury to his leg.  This was the only mention of difficulty for the applicant before he fled from his native town to other parts of China.

19. Further in the interview with the delegate, when asked why in 2013 he returned to Jilin where his native town is located, the applicant said the people he feared want money and also said he would be ‘charged’.  When asked by the delegate why he did not actually return to his native town itself, the applicant said that he was afraid to because he heard that they wanted him to be charged.  Further again in the interview, the delegate suggested to the applicant that if he had been charged in relation to the incident it was unlikely that Chinese officials would allow him to leave the country. In response, the applicant told the delegate that after returning to Jilin he heard that the people he feared approached his wife and told her that the applicant had to pay compensation or he would be charged with common or criminal assault but he was not sure about that.

20. The delegate asked the applicant whether he thought therefore that he had not been charged in relation to the incident. In response, the applicant said that was correct but he did not know.  He then said that he feared returning to China and being arrested for criminal or common assault.  This sequence of questions indicates that the applicant had ample opportunity to tell the delegate that in fact before he left his native town to go and live in other parts of China a document had been left at his home advising him that he was being sued by the drug trafficker’s [relative] as he had told the Tribunal.  Notwithstanding those opportunities, it is clear that the applicant did not advance this important claim to the delegate.  Rather, he gave the delegate ambiguous and ambivalent evidence about the possibility of being charged and arrested but not knowing about that.

21. When these discrepancies were put to him by the Tribunal, the applicant said that at those earlier stages (his application form and interview with the delegate) he was not questioned such that he could give the evidence he gave the Tribunal on this matter.  The Tribunal rejects that response because, as set out above, the applicant was questioned by the delegate in a manner that would have easily enabled him to advance the claim he gave to the Tribunal about being sued and a document being left at his home notifying him of that. The Tribunal considers that would have been a straightforward claim to advance and, similarly, the Tribunal considers that he could reasonably be expected to mention it in his protection visa application form.[5]

    [5] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

22. The Tribunal also put to the applicant that his evidence to the Tribunal that the drug trafficker came to his home on only one occasion before he fled from his native area to live in other parts of China, was inconsistent with his evidence to the delegate that, before fleeing from his native area, the drug trafficker came to the applicant’s home a number of times, sometimes alone, sometimes with people from the police and sometimes with other ‘buddies’.  In response to this discrepancy, the applicant repeated the account he gave the Tribunal that the drug trafficker came to his home only once. Apart from that other people came to make trouble once every few days.  That is inconsistent with his evidence to the delegate about this and the applicant has failed to account for this discrepancy.[6]

    Evidence about living in hiding from 1998

    [6] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

23. To the Tribunal, the applicant related an account of fleeing from his native area in 1998 and living in other parts of China for approximately 15 years.  In this respect, the applicant told the Tribunal that he lived first in [City 1] and when asked if he needed a form of temporary residence permit from the local authorities to be able to stay there, the applicant said that was not necessary. He said at that time things were not that strict, nobody checked and his identity card was sufficient. The applicant moved around over this period of 15 years because he would find out that the drug trafficker’s [relative] had sent someone to find him where he was staying. The applicant would be told of this over the phone mentioning colleagues from the [Workplace 1].  Once given these warnings, he would move to a different place and was able to evade anyone sent to apprehend him.

24. In contrast to this evidence, at his interview with the delegate, when relating his account of staying in other places in China, the applicant said that wherever he went he had to have a temporary certificate from the police to be able to find accommodation. He said that through the certificate being issued the people he feared would then learn of his whereabouts and come to try and locate him.  The Tribunal put to the applicant that he made no mention to the Tribunal of the people he fears locating him by this means and indeed made no claim that any such certificate had to be obtained.  In response, the applicant said that the account he gave the Tribunal was correct and he claimed that this was the same account he gave the delegate. 

25. The Tribunal rejects that response as the Tribunal has listened to an audio recording of the interview with the delegate and the applicant told the delegate very clearly that in each place he went to he had to have this particular document from the police and through that document the people he fears learned of his whereabouts.  The applicant did not give that evidence to the Tribunal and he has failed to account for this discrepancy.[7]

    [7] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

26. To the Tribunal, the applicant said that in 2013, for his safety, he travelled to [Country 1], but even in that country, the drug trafficker’s [relative] was able to have someone go to the place where he was staying and look for him.  For that reason, he left that country and returned to China.  The Tribunal put to the applicant that he made no mention of this very significant claim in his protection visa application form.  The Tribunal put to the applicant that this was important because the claim that the drug trafficker’s [relative] was able to locate him in another country demonstrated the power he held. 

27. In response, the applicant said that he did make this claim in a draft statement he wrote in Chinese but the person who assisted him to complete the application form mistakenly omitted this in translating the contents of the statement into English.  The Tribunal rejects that response given the English statement in the application form conveys an account of the events the applicant claims place him at risk in China.  In those circumstances, the Tribunal does not believe that the omission of a significant claim about the people he fears managing to locate him in [Country 1] is due to any error or omission in translation.

1. To the Tribunal, the applicant said that before he came to Australia, he, his wife and child decided to return to the province of Jilin while the applicant made arrangements to attempt to leave China and come to Australia.  He told the Tribunal that his wife and child returned to his native town and lived in the home of his mother in law while he himself stayed with a friend in another town [number of] kilometres away for his safety.  The drug trafficker’s [relative] went to the home of the applicant’s mother in law and spoke to the applicant’s wife trying to locate him.

2. In his protection visa application form, when describing what happened when he, his wife and their child returned to Jilin, the applicant gave a different account.  In this respect, the applicant stated (verbatim):

   “So my wife and I made the decision to move back to our home town [in Jilin].  Upon arrival, I found that after 15 years, the [drug trafficker’s [relative]] had become the Mayor which meant he had even more power than before.

   A few days after my arrival back home, the [drug trafficker and drug trafficker’s [relative]] lead a gang to my home and gave the same threat he had 16 years ago, I was even more afraid as now [the drug trafficker’s [relative]] would not be delivering empty threats instead he has the power to make my life miserable.”

3. The Tribunal understood the meaning of this evidence to be that the applicant returned to his native town and lived there with his wife and child where he was approached by the drug trafficker and his [relative] and threatened by them.   The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that he never returned to his native town and it was his wife who was spoken to by the people he fears, not him. In response, the applicant said that the account he gave to the Tribunal was correct.  Again, he claimed that he wrote this in Chinese but the person who assisted him to complete his application form made a mistake translating what he said into English.  The Tribunal rejects that response and does not accept that what is a significantly different account on this issue appears in the protection visa application form through an error in translation.

4. The Tribunal asked the applicant when he first decided to and made efforts to leave China.  In response, the applicant said that this was in 2013 when he travelled to [Country 1].  After he returned from that country, it was then that he began to explore the option of coming to Australia and making arrangements about that.  The Tribunal asked the applicant why, if he had gone into hiding in 1998, he would not have taken steps to leave China until approximately 15 years later.  In response, the applicant said that initially he just thought that as time passed the people he fears would forget about him but they never did.

5. He said that he thought that if he came to Australia he would not be harmed as human rights are protected here. The Tribunal asked the applicant why, if he had that view of Australia, he did not come here or try to come here long before 2014. In response, again, the applicant said that as time passed by he thought that the people he fears would give up chasing him but they never did. The Tribunal then put to the applicant that it had difficulty accepting the evidence he had given that he had made no attempt to leave China until 2013 when, at the same time, he was claiming to be attempting to evade a very powerful public official who had been able to locate him in his various hiding places as well as in another country, [Country 1].

6. In response, the applicant just repeated his account of the power and influence held by the [relative] of the drug trafficker. He said that he did not know of another way beyond going to [Country 1]. As he was not safe there he had to return to China and then come to Australia. The Tribunal again put to the applicant that it had difficulty accepting that it took him so long to leave China in his claimed circumstances.  In response, the applicant said that he was born in China, he grew up there and his parents’ graves were there. Again he said that he thought that the people he fears would give up after a while but they did not.       

7. The Tribunal does not accept the applicant’s explanations.  Throughout his evidence he emphasised the power held by the [relative] of the drug trafficker.  He told the Tribunal that he was aware he was being sued and he had to flee from his first hiding area, [City 1], because, as he understood it, his whereabouts were known to the people he fears.  By that time, at the latest, the applicant would have well-known that these people would continue to pursue him. Further, the Tribunal finds incongruous the applicant’s willingness to even remain in that area for a number of years to seek safety from people he indicated would be able to harm him with impunity.  While the applicant claimed that he knew of no other way out before going to [Country 1], it is not credible that, prior to that time, he did not take any steps to try and leave China.

   Conclusions on credibility

8. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that he was employed by a [Workplace 1] as a type of [specified duties] officer and that he was involved in a law-enforcement operation to apprehend drug traffickers. It follows therefore that the Tribunal disbelieves his evidence about shooting and injuring a drug trafficker; being pursued, threatened, attacked and sued by that person, his [relative] and others acting on their behalf in China or [Country 1] and having to flee from his native area and live in other parts of China as a result.  The Tribunal disbelieves the applicant’s claims that his wife and child were approached by such people either before or after he left China to come to Australia.

9. The Tribunal finds that all of these claims are false.  In making these credibility findings, the Tribunal has taken into consideration that some of the Tribunal’s concerns relate to events that occurred a number of years ago, in particular, the law-enforcement operation in 1997.  Even so, the Tribunal considers that the applicant can reasonably be expected to give a consistent account regardless of the lapse in time given the importance of the events in question to his protection claims.   The Tribunal does not accept that the lapse in time since relevant events in question occurred can explain or excuse the concerns the Tribunal holds about the applicant’s credibility.

10. Further, at the end of the hearing, the applicant said that with respect to the process of applying for protection, he answered whatever questions he was asked. If questions about a certain matter were not put to him then he would not be discussing them. He then repeated his claim that the questions put to him by the Tribunal were not put to him by the delegate and he did not know how to express himself or answer in a detailed way if not asked for detail.  The Tribunal has carefully considered these submissions from the applicant but does not accept that the concerns it holds about his credibility have been caused or can be explained by the way he was questioned by the delegate or the manner in which his protection visa application form was prepared.

11. The Tribunal has already stated that the delegate questioned the applicant in a manner that gave him ample opportunity to advance relevant claims.  In the respects discussed above, the claims advanced by the applicant to the delegate are inconsistent with his account to the Tribunal and that is not due to the manner in which he was questioned. Similarly, inconsistencies between the applicant’s evidence to the Tribunal and his evidence in his protection visa application form are not due to errors in translation or the way in which that evidence was prepared.  The applicant has managed to convey in that application an account of the events which he claims caused him to leave China only that, in the respects discussed above, this evidence is inconsistent with his evidence to the Tribunal.

12. Further, the Tribunal considers that the applicant was well able to express himself and advance evidence and arguments about his protection claims.  At the hearing, the applicant produced two photographs of himself in uniform asserting that these were taken during his employment at the [Workplace 1].  These photographs do not overcome the multiple concerns the Tribunal holds about the applicant’s credibility nor do they persuade the Tribunal that the applicant worked for a [Workplace 1] in China as he claims.  Accordingly, the Tribunal does not give evidentiary weight to these documents.

13. At the beginning of the Tribunal hearing the applicant said that he was of [Ethnicity 1]. Even so, the applicant has at no stage claimed to fear harm on that ground. The sole basis on which the applicant claims protection is his fear of harm from certain people arising from a law-enforcement operation in 1997. For the reasons given above, the Tribunal finds the applicant’s evidence about that is false.  At the beginning of the hearing, the applicant also indicated that his first language was [Language 1] but he confirmed that he had requested that a Mandarin interpreter be used for the hearing.  To the Tribunal’s observation the applicant and the interpreter communicated with each other without difficulty and the applicant was able to meaningfully participate in the hearing through that interpreter.

14. The Tribunal also had access to the department file relating to the application made by the applicant in China for a [temporary] visa for Australia.  Certain information on this file, primarily related to the applicant’s employment in China, was inconsistent with evidence he has given with respect to his protection visa application.  To the delegate, the applicant said generally that the information in the [temporary] visa application was prepared by another person and he understood it to be false.  The Tribunal does not regard this information as adverse to the applicant.  The contents of the department file with respect to the [temporary] visa application are not relevant to the grounds on which the Tribunal finds the applicant’s protection claims to be false.

15. Further, solely for the purposes of determining this review, the Tribunal is willing to accept that the information in that application is false but the fact that the applicant resorted to that means to obtain a visa to come to Australia does not demonstrate the grounds he has advanced for needing to come here are true.  For the reasons given above, those grounds are false. 

16. For the sake of completeness, the Tribunal records that the Department issued a certificate restricting the disclosure of notes made in 2014 by an officer of the department with respect to the application made by the applicant for his [temporary] visa and an application for a [temporary] visa made by another Chinese national. The Tribunal saw no need to disclose this information to the applicant because information in and relating to the application made by the applicant for a [temporary] visa is not relevant to the grounds on which the Tribunal finds the applicant is not a witness of truth and, overall, to the determination of the review.  Similarly, information relating to an application for a [temporary] visa made by another Chinese national has no relevance to the grounds on which this review has been determined.

17. There is no credible evidence that the applicant suffered harm in China and there is no credible evidence that anybody in China seeks to harm him.  There is no credible evidence before the Tribunal as to why the applicant left China and why he does not want to return there.  For the reasons given above, there is not a real chance that the applicant will suffer serious harm in China and he does not hold a well-founded fear of persecution based on any convention ground.

    Complementary protection

18. With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false. For the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in China, the Tribunal also finds that there is not a real risk that the applicant will suffer significant harm. Accordingly, in those circumstances, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, China, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

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.

    Paul Millar
    Member