1513013 (Refugee)

[2017] AATA 2815

1513013 (Refugee) [2017] AATA 2815 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513013

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:21 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2017 at 4:37pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Escape from detention – Fears harm from his employer – Fears hearm from the PSB – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 499
Migration Regulations 1994 Schedule 2

CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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).

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

3. The applicant appeared before the Tribunal on 13 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.

4. The issues in this case are whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention (s36(2)(a)); and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm (s.36(2)(aa)).   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

6. Information contained in the application form indicates the applicant is [an age] year old married man from Chengdu, Sichuan Province, China.  He has a wife and [age] year old unmarried daughter in China.  He indicates his ethnicity is Han and religion, Christian. He arrived in Australia [in] July 2014 on a [temporary] visa, which was valid for 3 months to [a date in] October 2014. He provides one residential address from October 2004 to his departure from China in July 2014. He completed education to [certain] school level, and worked as [an occupation 1] in China until May 2013, after which time he was unemployed.

7. In his reasons for leaving his country he states he was persecuted by his company.  He appealed to the local government and was warned by the police. He went to a house church gathering to worship god and was warned too. He states there is no religious freedom or human rights and that is why he fled his country.  He indicates he will provide a further personal statement. Regarding what harm he experienced in his country he refers to being detained by the police and sacked by his company. He fears being detained if he returns and continues to appeal for justice.  He also fears harm if he goes to a house church gathering when he returns. He fears harm from police and local government officers, who are corrupt and godless. He indicates he left his country legally and did not have any difficulties obtaining a travel document.

8. [In] October 2014, the applicant submitted a personal statement containing the following further information: He is a devout underground Christian and fears arrest and torture because of this if he returns to China. He believes in the Lord because a miracle happened to him. He is [an occupation 1]. One day in June 2011 his [body parts] hurt and his company sacked him instead of giving him compensation. He appealed to the Chengdu City Government about this injustice but the officials accepted a bribe from his boss and he was detained for a day instead. At that time his [body parts were] painful. He went to hospital and was told he would need RMB [amount] to have surgery, which may not even work. He was sad and worried. His neighbour, [Sister A], came to see him. She is Christian and she prayed for him and advised him to believe in the Lord. He started to think about the bible stories told to him by her and prayed. A month later a miracle happened. His [injury was reduced] and after another month he could [function properly]. Since then he actively participated in the underground church activities and put the Lord first. The Chinese Government does not allow the underground churches to exist and asks people to join the Three Self Churches, which are controlled by the Communist Party. He wants more people to join in the underground church and hear the voice of the Lord and so he often told his friends and relatives about the goodness of the Lord. On [a date in] 2013 he held a gathering in his home to pray and thank the Lord. Police came to his home. There were [number of] brothers and sisters gathered. They registered all of their names and then released the others but took him to the police station because he told them he was the leader. At the police station he was hit and asked to write repentance and only then he was released. He did not give up his faith after that. He still went to gatherings. He thought about how he was treated unfairly, being fired by his company and not getting any compensation or laid off fees. He decided to go abroad so he applied for a passport in [2014]. In May 2014 he went to a gathering at [Brother B’s] home. The police came. He escaped through a window but [Brother B] was detained for 10 days. After this he was afraid and asked a friend to help him apply for a visa. He came to Australia in July 2014. In [City 1] he attended a Chinese church and heard about applying for protection. He fears return to China. There is no religious freedom in China.

9. The applicant was interviewed by an officer of the Department [in] August 2015.  The Tribunal has listened to an audio recording of that interview which is included in the Department file.  In his evidence at the Department interview he said he was never detained in the context of complaining about his job.  He referred to his Christian faith and talked about attending gatherings and the police detaining them.  

   Tribunal hearing

10. At the hearing the applicant confirmed that his application was prepared with the assistance of his agent. When asked by the Tribunal if he agreed with the contents of the application and/or wished to make any changes or additions he said the information contained in the application is basically correct and he does not wish to make any changes or additions.

11. He told the Tribunal he has been living in [City 2] for the past year.  He works as [an occupation 1] in a [workplace]. Prior to this he lived in [a suburb in City 1] at the same address since he arrived in Australia.  He worked initially as a [different occupation] in [City 1] and later obtained work as [an occupation 1] in the same [workplace] he is currently employed with. The [City 1] [workplace] closed down and reopened in [City 2] and the applicant moved there to work with the same employer. 

12. The Tribunal confirmed with the applicant his education and employment background in China.  He confirmed the address, education, and employment details provided in the application. He lived at the same residential address from [year] until his departure for Australia in 2014. His wife continues to reside there alone.  His daughter lives separately in Nanchong City, Sichuan with her husband. He has [specified family members].  They all live in [their home town], close by to his home area.  The applicant said he is in regular contact with his wife but seldom contacts his daughter. He sends money to his wife from Australia.  She is financially dependent on him as she has no other source of income.  The applicant confirmed that he worked as [an occupation 1] in China.  His last employment was from around 2005 to 2013.  His employment was terminated following a workplace injury to his [body part].  He has a dispute with his employer about this because they did not award him workers compensation. He tried to dispute it by taking the matter to a government department but because they are all corrupt he did not get any redress and his employment was terminated.  He didn’t work after this anywhere else before coming to Australia and relied on his siblings for his financial support in this period.

13. The Tribunal asked the applicant why he came to Australia in July 2014.  He said he was told by a friend that if he came to Australia he would be protected by Australian law. When asked why he needed protection, he said after 2013 when he stopped working, he mingled with some people without any purpose.  These people invited him to a Christian gathering. A person from his district introduced him to these people.  He told him that if he believed in Christianity he could get him a visa to go to Australia and he would be protected. So for this reason the applicant followed these people and did whatever they asked him.  They took him to some houses, where nobody lived. They had private gatherings.  There were 7-8 people , at most there were 12 people present.  He did not know anyone except his friend who brought him there. His friend’s name is [Mr B].

14. The Tribunal asked the applicant what this group were doing at these gatherings. He said it was quite ‘messy’.  They would ‘proclaim some clauses’ and then they would drink (alcohol) afterwards. When the Tribunal asked the applicant what he meant by ‘proclaim some clauses’ he said he cannot remember. He later said his friend told him they were clauses from Christianity.  He does not know any other details about it.  His role was to do the ‘logistics’.  When asked the explain more about this he said he would help by buying some things, like food and spirits and do chores like moving furniture.  The Tribunal again asked him why he was involved in this activity.  He said he just wanted to go abroad and his friend told him that he needed to come to these groups and he would arrange for him to get a visa. When asked if he paid this friend money for this, he said they are rich people and he does not have money. When asked why his friend would help him if he is not paying, he said he was his friend since long ago. 

15. The applicant told the Tribunal he attended about 10 of these gatherings. They would do the same activities each time, at most there were 13-14 people in attendance. The applicant never learned the ‘clauses’ they spoke.  On one occasion the PSB came and arrested them. He can’t remember when it was.  He was arrested also. They were arrested because they had gathered and were ‘messy’. The PSB hit them badly.  They took them away to the police station and kept them in a room.  Eventually the others were released because they paid money.  He had no money to pay so he was detained for 3 months.  Later he escaped by climbing through a window of the police station. Then he hid in different places and his friend [Mr B] applied for a visa for him. He told him in July 2014 that he had a visa and arranged for him to come to Australia and he came here. The Tribunal noted that the Department records indicate he was granted his visa in May 2014 but did not come here until July 2014 and asked him why he waited 2 months.  He said [Mr B] did not tell him until July that he had a visa, and told him only after he bought a ticket for him to come to Australia. The applicant confirmed that he was only detained this one time for 3 months.  Nothing else happened to him in China.

16. The Tribunal asked if anything else happened to him regarding his employment dispute.  He said no, only that his [body part] was injured at work and he argued with his employer about taking responsibility for it.  Nothing else happened with the authorities, they just ignored him when he tried to complain. He was not detained for this.  He has never seen his employer since then.

17. The Tribunal put to the applicant that he does not seem to have any problems with his [body part] now and asked him why.  He said his [body part] was hit by [an item] and he had 2 surgeries at that time.  He can’t recall the dates but it was before he began attending the gatherings. The Tribunal asked if the surgery fixed his issue with his [injury].  He said he still gets [residual problems] but he confirmed that he has been able to get work as [an occupation 1] here.

18. The Tribunal asked the applicant why he cannot return to China now.  He said he is afraid if he has to argue again with his employer and he is also afraid of the PSB because he escaped from them before. The Tribunal asked him why his employer would be angry with him now given his employment was terminated and he has been away for 4 years. In response the applicant said his grievance with his employer is not finished. He said he is also afraid of being arrested by the PSB because he escaped from their custody.  When asked how he managed to leave China if anyone was still interested in him he said he hid in different places. If he goes back he is afraid he cannot get work and live normally.

19. The Tribunal put to him that on the basis of what he has told the Tribunal that he was involved in, it may not accept that he would be of interest to the PSB or anyone upon return.  In response the applicant said that the PSB do not care what he is doing, they would see him as part of a group who have gathered illegally and arrest him for that.  The Tribunal put to him that it may not accept that he was arrested or detained for 3 months as claimed or that he escaped through the window, given his explanation of his role and level of involvement in this activity. In response he said the PSB don’t care for facts, they just arrest people and that is what they did to him. He then escaped from their custody and he is afraid they will be interested in him because of this.  He does not know what they would do but he is just afraid.

20. The Tribunal put to him that even if it were to accept that he was arrested and held for 3 months in the past, given his evidence about what he was doing with this group and the passage of time since then it may not accept there is a real chance he will face harm because of this in future. In response he said he is just fearful he will not be able to get work and live normally.

21. The Tribunal put to the applicant that the claims he has made at this hearing are very different to the written claims in his application and also the oral evidence he gave to the delegate and this raises concerns about his credibility.  It went through the claims made in his written statement, noting he has not mentioned today being detained as a result of complaining about his dispute with his employer and he has not mentioned [Sister A] and her introducing Christianity to him and the miracle cure for his [body part]. He also did not mention in his written statement that he was detained for 3 months. The applicant at this point stated that what he has said today is the truth as he has promised to be truthful.  He is aware that at the Department interview it was mentioned to him that there was an identical statement to his by another person, but he claims this person may have copied his statement because he really is [an occupation 1] and can show his card. He also stated that in fact he is not interested in Christianity at all and this part of his claims is not correct.

22. The Tribunal put to him the significant inconsistencies, discrepancies and omissions in his written and oral evidence may cause the Tribunal to have serious doubts about his credibility and reliability of his evidence and the Tribunal may reject his claims on this basis and it invited him to comment.  In response the applicant said that he is an honest person and he has told the truth to the Tribunal today.  He said he just doesn’t know what the police will do to him and he is fearful in his mind that he cannot work and live normally in China because the police will give him trouble because of his past experience of being arrested for disturbing the public order by gathering unlawfully with a group.  The Tribunal asked the applicant, given his evidence that he only gathered with these people for the purpose of getting assistance to get a visa to come abroad, did he have any intention to gather with them upon his return. He said he would not as he has no contact with them.

23. The applicant confirmed again to the Tribunal that he has no interest in or knowledge of Christianity. He has never been in a church in Australia. He has no other reason to fear return to China.  He confirmed that he has been able to find work as [an occupation 1] in Australia and there is no reason why he could not find work as [an occupation 1] again in China, although he believes it would be more difficult there than here. The applicant confirmed that his wife has had no issues in China since he has been here.  

    FINDINGS AND REASONS

24. A summary of the relevant law is set out at Attachment 1.

    Nationality

25. On the basis of his evidence to the Tribunal and his Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality for the purposes of the refugee criteria and the receiving country for the purpose of his claims against the complementary protection criteria.

    Credibility assessment

26. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of the credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

27. The applicant’s claims before the Department and Tribunal are significantly different, inconsistent and contradictory.  Before the Department he made written claims that after sustaining a workplace injury for which his employer denied responsibility, he was detained by authorities for a day when he tried to complain about it.  He claims that after this he was introduced to Christianity and began to actively participate in underground church gatherings. He claimed the police came to a gathering of this kind held at his home and he was detained, beaten and released only after giving a written repentance. He claimed he continued to participate in gatherings and in May 2014 the police attended another gathering he attended and detained his friend, but he escaped through a window. 

28. However before the Tribunal he gave a very different account of his circumstances in China. He said his employment was terminated after a workplace injury to his [body part] and he had a dispute with his employer about accepting responsibility for this, but he was never detained in relation to this matter.  After his termination, he began to associate with some people who invited him to a Christian gathering. He told the Tribunal he was involved with these people only because he was told to do so to facilitate getting him a visa to go to Australia. He told the Tribunal he had no interest or involvement in Christianity. He said he was among this group one day when the PSB came and arrested them all. He referred to being detained and hit by the police and kept for 3 months because he could not pay to be released. He said he eventually escaped through a window and after this his friend obtained a visa for him to come to Australia.

1. The Tribunal finds the applicant’s evidence and account of what happened to him in China prior to coming to Australia wholly lacking in credibility and reliability, given the substantial differences, inconsistencies and discrepancies between his written and oral evidence and his candid acknowledgment before the Tribunal that earlier claims made were not true.

2. On the basis of what is before the Tribunal, the Tribunal is prepared to accept that the applicant worked as [an occupation 1] in China and that his employment ceased some time prior to coming to Australia.  He claimed to have suffered [a specific] injury in the context of his employment, but has provided no evidence of the injury or subsequent surgery which he claims to have had.  Given the unreliability and lack of credibility of his evidence generally, the Tribunal is not inclined to accept that he suffered this workplace injury. The Tribunal also considers the fact that he has been able to work as [an occupation 1] in Australia for the past few years also detracts from the credibility of this claim. Neither is it inclined to accept, in the absence of any documentary evidence, that he had any dispute with his employer over termination of his employment or that he took any dispute to a government authority. 

3. He initially claimed that he discovered Christianity in China after this experience and began attending underground gatherings, but before the Tribunal he rescinded this claim and told the Tribunal he has no interest or knowledge of Christianity, either here or in China.  He told the Tribunal that he mingled with a group who took him to purported “Christian” gatherings solely on the promise of this being a means to a visa for Australia and in that context he claimed he was detained and beaten by authorities on one occasion.  Again, given the incorrect and unreliable information he has already submitted, the Tribunal is not inclined to accept this claim either. It finds the claims made are far fetched, implausible and contradict previous claims and on this basis are entirely unreliable.

4. The Tribunal rejects the applicant’s claims and evidence of experiencing past harm in China and his claims relating to religion entirely.  The Tribunal does not accept that the applicant had a dispute over the termination of his employment with his employer or complained about this to a government authority. It does not accept that he embraced Christianity in China, or attended Christian gatherings in an underground or unregistered church in China, for any reason.  It does not accept that he was ever detained, beaten or came to the attention of the police, PSB or any other authorities in the past in China for this or any reason.   It does not accept that he was ever detained by the PSB or police or any authority or escaped custody.

   Fear of future harm

5. The applicant claims to fear harm in China in future from his employer because of his grievance about the termination of his employment and from the PSB because he escaped their custody.  The Tribunal rejects both of these claims.  Although the Tribunal has accepted that the applicant worked as [an occupation 1] prior to coming to Australia (on the basis that this is the one aspect of his claims that he has been consistent about and he has been able to work in this trade in Australia), it has not accepted that he was terminated because of a workplace injury (in the absence of supporting evidence of such injury) or that he complained about the termination of his employment. He acknowledged to the Tribunal that he has no employment to return to and that he has had no contact with his previous employer since departing China in 2014.  In light of the above findings and given he has no employment to return to, and no contact or  relationship with his past employer, the Tribunal finds there is no basis for him to fear harm from his employer upon return.

6. Regarding his claimed fear of harm from the PSB, the Tribunal has above rejected his claim that he was ever detained by the PSB for any reason or in any context. On his own evidence he has no interest in or involvement with Christianity in China or Australia.   The Tribunal observes he was able to obtain a passport in 2014 and departed the country without any issue from any authorities.  Therefore, the Tribunal finds there is no basis for him to fear harm at the hands of the PSB, or any authorities, upon return for reasons of religion or any other reason.  

7. For the reasons given above the Tribunal is not satisfied there is a real chance the applicant will face serious harm in China in the foreseeable future for reasons of religion, or any other Convention reason. Having considered the applicant’s claims individually and cumulatively, 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).

8. 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). Above, the Tribunal has rejected the applicant’s claims that he had any dispute with his employer over termination of his employment or complained about this to any government agency; that he was detained by the PSB or anyone else in the past in China; that he was or is Christian; or was involved in a Christian gathering in China. In light of these findings the Tribunal is not satisfied there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if returned to China.

9. Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

12. 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

13. 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).

14. 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.

15. 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.

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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’).

24. ‘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.

25. 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

26. 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.