1513930 (Refugee)

[2018] AATA 1836

1513930 (Refugee) [2018] AATA 1836 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513930

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:16 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2018 at 3:53pm

CATCHWORDS
Refugee – Protection Visa – China – Non-convention reason – Loan shark – Rape – Witness credibility – Inconsistencies in evidence – Claims of future harm speculative

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499

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 on 28 October 2014 and the delegate refused to grant the visa on 21 September 2015.

3. The applicant, who is [age], was represented by his mother, [Ms A] who appeared before the Tribunal on 31 January 2018 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 her being removed from Australia to China there is a real risk that she 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. The applicant is [a particular age] child born in Australia to parents of Chinese nationality. His reasons for claiming protection as stated in the written application are that his parents escaped China because they were afraid of loan sharks and criminal gangs. It is feared that he will be harmed because of the problems his parents had in China with the criminal gangs and loan sharks and he will be targeted for revenge. He fears this harm because his parents borrowed [an amount] and are unable to repay it and they are now asking for [a larger amount]. The police cannot protect him because they will support the gangs due to corruption.

7. Included with the application is a copy of the applicant’s birth certificate.   The birth certificate names the applicant’s parents and indicates they were married [in] Australia, prior to his birth.

8. The applicant’s mother ([Ms A]) was interviewed by an officer of the Department on 2 September 2015.  The Tribunal has listened to an audio recording of that interview which is included in the Department file.  Details of the evidence provided at the interview is included in the delegate’s decision record, a copy of which was provided with the review application.

9. The delegate noted that the applicant’s mother’s own application for protection was refused by the Department and Refugee Review Tribunal on the basis that her claims lacked credibility. Despite this he was prepared to accept, for the purposes of the present application, that it was credible that she owed money to a loan shark. The delegate concluded that there was no Refugee Convention ground for the harm feared by the applicant in this case and therefore he does not meet the requirements of s36(2)(a). Considering the applicant’s claims under the complementary protection criteria, the delegate referred to, and took into consideration, country information about legal avenues for redress and protection relating to private lending agreements and advice from Post that it was not aware of any specific instances of ill treatment suffered by returnees to Fujian province who had outstanding debts.[1] The delegate also considered the applicant’s mother’s claims of her fear the applicant may be threatened because she still owed money and her fear he will be abducted and the victim of child smuggling, but found that country information indicated the authorities were taking action against criminals in relation to such crimes and s36(2B)(b) provides that there is taken not to be a real risk of significant harm if the applicant can obtain state protection and on this basis the applicant did not meet s. 36(2)(aa).

   Applicant’s mother’s Protection visa application

   [1] CX298045: "CIS Request No. CHN14018 Loan sharks in Fujian Province", Australia: Department of Foreign Affairs and Trade (DFAT), 25 October 2012

10. The Tribunal has before it the review applicant’s mother’s Department file relating to her own application for protection made on 2 May 2013, which was refused by a delegate on 31 July 2013 and the refusal decision was affirmed by the Refugee Review Tribunal (differently constituted) on 4 July 2014.  She subsequently appealed this decision to the Federal Circuit Court of Australia which dismissed the application [in] February 2015. 

11. In her own application for protection the review applicant’s mother made claims relating to issues her father had regarding the forced appropriation and demolition of his property and detention by local government authorities when he sought to complain. She claims that she was required to borrow an amount [from] private lenders to pay bribes to officials to secure the release of her father from detention.  She claimed that she could not repay the loan and feared harm from the loan sharks or that she would be forced to have her organs harvested or go into prostitution as the loan sharks were part of criminal syndicates. The review applicant’s father was included as a member of the family unit in this application, but did not make any protection claims of his own.  Both the delegate and the RRT rejected her claims as lacking in credibility and the applications were refused on that basis.

    Tribunal hearing

12. The applicant, being a [minor], was represented at the hearing by his mother, [Ms A].  Her husband, the applicant, and his [sister] were present, but stayed outside the room during the hearing.

13. [Ms A] confirmed that [she] has had a second child.  She understood that the present application only relates to the applicant, and confirmed that her daughter has not yet made any application for a visa.  The Tribunal noted that her passport has expired.  She advised that she has not yet approached the consulate to renew her passport or apply for a passport for the applicant.

14. She currently lives in one bedroom of a rented property with her husband, and two children.  [A number of] other individuals share the premises. She is not working, and has not worked since 2012.  In 2013 she was detained by Immigration and when released three months later she [has] not worked since then.  She has been financially supported by her husband since then.  They met in 2008 when sharing an apartment as students. They began their relationship in 2009 and started to live together by the end of 2009. 

15. [Ms A] said she came to Australia in 2008 to study.  She started studying English and then high school. She returned to China at the end of 2008 because of issues for her family and when she came back in February 2009 she ceased study and began working.  She worked until the end of 2012.  By the time she started living with her husband he was also working and no longer studying. He works two [jobs].

16. The Tribunal asked [Ms A] about her family.  She said she has her parents, a brother and [grandparents] in China. Her parents live with her [grandparent], since end of 2000.  Prior to that they lived in her father’s family home which is where she lived since birth.  Her brother is in Shanghai working for the past 2 years.  She does not know what kind of work he does.  Her father also has [a number of] siblings, who all live in Fujian.  She is in contact with her parents once a month or every two months.  She does not contact more often because both they and she are busy.  They are both working. Her father has several [jobs]. Her mother [also works]. Her brother works also and mostly supports himself. Sometimes he gets assistance from her parents because cost of living in Shanghai is expensive.

17. They never send her money.  She used to send them money when she worked before.  The last time she sent them money was last year. She sent [an amount] to her father. Her husband gave her the money to give to them. She said her parents are working so they are not at home and can avoid the money lender.  She referred to her father’s house being demolished and he was detained because of this incident.  They had to borrow money from people to get him out of detention.  She said her parents have told her that the money lender comes to their home and demands payments.  There have been occasions when they have come and thrown things on the floor and beat her parents. The Tribunal asked when this occurred. She said it was in 2010.  Then she said it has occurred many times, they don’t always tell her the exact dates.  They only mention the incident.  She recalls 3-4 times in 2010 that it occurred.  The last time was last year. Her father was working at [a particular location] and they came there and took everything.  His manager told him he has to repay him for what they took. That is why she sent the [money] last year.  She does not know how much he gave the lenders because she didn’t ask her father. She believes it was much more than [the amount she sent] and her father is paying it back through his salary now. 

18. The Tribunal asked [Ms A] what she fears for the applicant to return to China.  She said she is fearful because she borrowed a lot of money and fears harm to him if they return and she cannot repay the money.  Secondly, she said, she was raped and she is afraid that word about this will get out to the village and she will suffer a stigma and she is afraid it will cause psychological harm to the applicant.

19. The Tribunal asked her about the rape incident.  She said when she returned to Australia from China after borrowing the money, she was given a period of time to get work to start making payments.  The money lender suggested a friend in Australia who runs a brothel and he contacted her to persuade her to work for him and repay the money that way. She refused. She borrowed some money from friends for one payment, but had difficulty making next payment. The man contacted her again and said he had work in [a particular location] as [an occupation]. He picked her up from the train station and took her to a [particular location]. She was given a drink and fell unconscious. When she awoke she was lying naked next to him and he told her she was no longer clean.  He said she can now work as a prostitute. She refused. He told her to think about it and gave her his card.  She left the [location] and went home.  She said she walked out. She rang her parents and told them what happened. They told her to try and forget about it. They discouraged her from complaining to police because she was alone there and they were afraid of repercussions.  They told her to change her mobile phone and move from her address, which she did. She did not make a police complaint.

20. The Tribunal put to her that her account of this incident is different in several respects from the account she gave to the Tribunal in her own protection visa application.  For example she said then that she did not tell her parents about the rape incident, though she called them after the incident.  She also said then that she was dropped off at the train station after the incident.  In response [Ms A] said that she understands her story was not believed in her application but she maintains it is the truth.  She said she is telling the story from her memory and she may have forgotten some details or recalled them differently.  She said she was so upset following this incident and that may have impacted her memory. She does remember calling her parents but she may have misunderstood the question asked of her last time.  She reiterated that the incident was very distressing to her and affected her dignity and she would not say such a thing for no reason. 

21. The Tribunal asked if she has had any contact from this person or anyone else associated with the lender in Australia since then.  She said she has not.  She moved and changed her number after that and she has not heard from anyone.  She did not tell her husband about the incident to date. 

22. The Tribunal asked her about the loan. She said she borrowed [an amount] from a man called [Mr B].  He was a rich man in her village, who is followed by a group of hooligans.  She [details of association removed].  She borrowed the money because her father was detained and they needed it to get him out.  She gave the money to her aunt who arranged for her father to be released.  When asked the name of her aunt, she said she is not really her aunt, she is a long term neighbour who she knew only as aunty.  She does not know her whereabouts now and has had no contact with her since returning to Australia.  The Tribunal put to her that in her previous Tribunal hearing she said her aunty is fine and has no problems with the creditor because she is known to him.  This inconsistency may lead the Tribunal to doubt her credibility. In response she said when she speaks to her parents they have told her aunty is fine and that is why she said that. She hasn’t had direct contact with her.

23. The Tribunal asked [Ms A] about the terms and arrangements of the loan. She said she borrowed the money at the beginning of 2009 at an interest rate of 5%. She does not know whether that was per month or per year. She only knows she had to pay [a particular amount] the first month. She paid [a particular amount of AUD] which was the equivalent of [a particular amount of] RMB at the time. The Tribunal asked how much she has paid back to date. She said she doesn’t know. She hasn’t done the calculation. She can find this out if the Tribunal wants to know. It put to her that it seems strange she cannot respond how much money she has paid and how much she owes on this loan. This may led the Tribunal to have doubts about whether she is telling the truth about the loan as it would expect her to know this information. She said she provided a bank statement in her own application showing the amounts of money she sent to her parents. They would pay the lender, but she doesn’t know how much they kept for themselves for living expenses. She said the interest has accumulated so she has no idea how much she now owes. The Tribunal put to her that it seems very unbelievable that she would not be aware of the amount she has paid back and the accumulation of her debt. In response the applicant said she was sending money to her parents from 2009 to [2014]. After that she has not sent money, except the [amount] she sent last year. She doesn’t know how much her parents have paid. They pay when they can. The lender accepts whatever they can pay.

24. The Tribunal asked what harm does she fear for her son and from whom.  She said she fears they will harm him if she does not pay.  It put to her that from her evidence it would appear the lender is very patient and has not caused serious harm to her parents to date despite money not being paid so why should the Tribunal believe they will harm her son.  She said she is now not in China.  Her parents are old and have low income and so they have not pushed very much. If she returns they will expect her to pay and if she can’t pay they may harm her son. She is afraid they can push her into illegal activities, such as drug trafficking. Her brother is in Shanghai for this reason, hiding from the creditors.  She believes the amount owed now is greater than what she borrowed because of the interest. She fears her son is at risk of being kidnapped and smuggled. She cannot guarantee his safety. She is also afraid for him because of the rumours about what happened to her in Australia. She is afraid this will harm her son’s mental health. She is afraid for his psychological state. She recounted a story of a friend here who was involved in prostitution.  She returned to China and had a child who now suffers from depression because of the rumours about her mother.

25. The Tribunal explained that under the refugee criteria it must be satisfied that the applicant’s fears are for one of the five reasons specified in the refugee Convention, being race, religion, nationality, political opinion or membership of a social group and put to her that there does not appear to be a Convention reason in this case.  In response she said that she fears he could be killed and there is uncertainty of what will happen to him. The Tribunal explained if the applicant does not meet the refugee criteria it can consider his claims under complementary protection.

26. The Tribunal asked her to the extent she fears harm to him from criminal gangs why can’t the authorities protect him.  In response she said the creditor has connections with the government. When asked if she has any evidence of this, she said she has heard he has done illegal things in the past and not faced punishment. She has no evidence, she has heard it from neighbours.

27. The Tribunal put to [Ms A] that independent information before it indicates that there are issues with private lenders who charge high interest rates and engage in intimidatory behaviour but also that the authorities are aware of this issue and there are laws against it and evidence of actions being taken against unscrupulous lenders.  In response she said that this may be so but on the ground level it is not so efficient and there is corruption at the local level.  It may be in larger cities like Beijing and Shanghai there are protections but not in smaller places.  She would have no evidence to bring a case against the lender.  She also does not think he will let her go even if she brings a case against him.  She reiterated that she is afraid for her son’s physical safety and also his psychological health.

28. The Tribunal asked [Ms A] if her husband was aware of her issue with the lender in China. She said he is not because she has not told him. When asked why she said she does not want to put more pressure on him as it is already hard for him to support the family. The Tribunal said it may find the fact she has not discussed it with her husband may lead it to doubt her credibility as it would be reasonable to expect her to have discussed it with him.  When asked if he has any other reason not to return, she said he cannot go back because she and the children cannot go back.   When asked if she wants to say anything else she said no.  

    FINDINGS AND REASONS

    Nationality

29. The Tribunal finds, on the evidence of his birth certificate and mother’s passport, that the applicant was born in Australia to parents who are Chinese nationals. The Tribunal finds that as a child of Chinese nationals born outside China, he is entitled to Chinese citizenship.[2]  The Tribunal will therefore assess his claims against China as the country of nationality for the purposes of the refugee criteria and as the receiving country for the purposes of the complementary protection criteria. 

    [2] Nationality Law of the People’s Republic of China 1980, Article 5.  The Embassy of the People’s Republic of China, Note to Department of Foreign Affairs and Trade 2004 Note No. 088/2004, 21 September; Community Legal Information Centre (undated), Chinese Nationality type="1">

30. 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 credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by protection visa 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).

    Consideration of applicants’ claims

31. On behalf of the minor applicant his mother fears harm to him from loan sharks and criminal gangs as a result of her problems being unable to repay a loan she took from a private lender in China. She claimed he borrowed a sum of [an amount] from a creditor in her village during a visit back to China in 2009 for the purposes of getting her father out of detention. She claims, since her return to Australia in February 2009, she has been unable to make many repayments on this debt.  She claims the creditor visited her parents a number of time over the years and continues to demand repayment of the debt.  She fears that if she returns to China with the applicant the creditor will demand repayment of the debt and she cannot repay it. She fears the creditor will use criminal gangs to abduct her son to pressure her to pay or smuggle him for money.  The applicant’s mother also claims she was raped in Australia by a man who is associated with the creditor in China.  She fears that knowledge of this incident will follow her back to China and the applicant will suffer psychological damage as a result of the rumours about her and what happened to her.  

32. The Tribunal has considered all of the material before it, including written and oral evidence in the present application and evidence contained in the Department file relating to the applicant’s mother’s own protection application, as well as relevant independent information before it and makes the following findings relating to the claims made.

    Claims of outstanding debt owed by the applicant’s mother

33. The Tribunal observes that the applicant’s mother’s claims relating to her outstanding debt are substantially the same as claims she advanced in her own application for protection, lodged in May 2013.  She referred to and relied on evidence previously provided and the Tribunal has considered her claims and evidence made in that application, and evidence provided by her in the review of that application to the Refugee Review Tribunal (RRT) in addition to her oral evidence in the present application. 

34. There are a number of reasons why the Tribunal has doubts about the credibility and reliability of [Ms A]’s claim that she has an outstanding loan in China, arising from a combination of inconsistencies in her claims about the loan in this and her own application and the vague, unconvincing and unsubstantiated nature of her oral evidence to the Tribunal. The Tribunal has considered, but is not convinced by, the documentation relating to the loan from [Mr B] provided to the Department in her application.[3] It finds this document self-serving and lacking in authenticity, and in light of the Tribunal’s credibility concerns regarding her claims, it gives this document little weight.  Her evidence about the person who arranged the loan, whom she referred to as ‘aunty,’ was inconsistent with evidence previously given about his matter.  In this application she told the Tribunal she was not in fact her aunty, but rather a long term neighbour and she could not recall her name, did not know her whereabouts and said she has had no contact with her since coming back to Australia in 2009.  However, in her protection application, she referred to this ‘aunty’ at some length but never mentioned that that she was not her aunty, and when asked how she was doing she indicated that she was fine and had no problems from the creditor because they know each other. 

    [3] Folio 48-49, [file number]

35. When questioned by the present Tribunal about the circumstances of obtaining the loan, the repayments made to date and the amount of the outstanding debt, [Ms A] was vague and unable to provide any convincing details.  She did not exactly know the interest rate, she had no idea of how much she had paid back to date and no idea of the current amount outstanding on the loan.  She referred only to having made one repayment of [a particular amount] in 2009 and a [payment] to her father last year.  In her own application, she gave evidence that she had paid back [a much larger amount] and had [an amount] outstanding and that she had made 5-6 repayments since 2009, and referred to repayment amounts of [a particular amount].  The Tribunal finds the combination of the inconsistencies in her evidence about repayments made, and her inability to give specific detailed evidence to the Tribunal about repayments and the amount of outstanding debt also detracts from the credibility of her claims. The Tribunal also takes into consideration, and finds concerning, [Ms A]’s evidence that she has not told her husband about the debt. The Tribunal considers this is suspicious as it would expect her to have shared this matter with her husband and that they would be involved in a joint effort to try to repay the debt especially given her claims about her concerns for her son’s welfare upon return. 

36. It also observes and takes into account the delay in lodging her own application for protection. She lodged her application only after being detected and detained by Immigration.  This, in combination with the matters above, adds to the Tribunal’s concerns about her credibility.

37. For all of the above reasons, the Tribunal does not accept that [Ms A] has an outstanding debt to [Mr B] as claimed.  It does not accept therefore that associates of her claimed creditor have approached her parents and pressured them for repayments of the debt. 

38. Although the Tribunal accepts there is evidence of the growing phenomenon of non bank and unscrupulous ‘loan shark’ lending in China,[4] in the present case, given the above mentioned concerns about the credibility and veracity of the specifics of [Ms A]’s claims regarding her debt, it is not satisfied that she has an outstanding debt.

    Claims of [Ms A]’s rape in Australia

    [4] See for example, CXC90406617230: "China ‘granny gang’ jailed in lending clampdown", Financial Times, The (FT.com) - United Kingdom, 11 August 2017, CXC90406617576: "Guandong police launch crackdown on campus loan sharks", China Daily, 16 June 2017, CXC90406612841: "Loan shark ring busted for lending at 465% rate in Hong Kong", Asia Times, 12 April 2017

39. [Ms A] claimed that she was raped in Australia. She claims she was contacted by a person associated with her creditor in China who ran a brothel.  He sought to persuade her to work in his brothel as a means to repay her debt. She described how he lured her to a [particular location] on a pretence of finding work for her, drugged and raped her.  She described the incident at the hearing in some detail, and was tearful and distressed as she recounted the experience. The Tribunal observes the account she presented was substantially (though not entirely) consistent with the account she gave to the RRT in her protection visa application. The Tribunal discussed with her the inconsistencies, and has considered her explanations. It also takes into account her failure to report the matter to police following the incident and her explanation for this.

40. While not entirely free from doubt, the Tribunal cannot be confident that [Ms A] did not experience a sexual assault particularly given the distress she demonstrated as she recounted the experience, however given its finding above rejecting the existence of an outstanding debt to a loan shark in China, it does not accept her claim as to who and why this incident occurred.   For the purposes of the present application, it accepts that she may have experienced a sexual assault while in Australia. 

    Risk to applicant of future harm

41. The applicant’s mother claims that the applicant will face harm in China from the loan sharks who will use him to pressure her to repay the debt she owes.  She also fears that rumours about her rape will follow her to China and the applicant will face psychological harm as a result of these rumours about his mother. The Tribunal will consider the applicant’s claims on the basis of the findings made above.

42. As Tribunal rejected the applicant’s mother’s claim that she has an outstanding loan to a loan shark it is not satisfied that the applicant faces a real chance of serious harm upon return to China in the reasonably foreseeable future on this basis.  It is not satisfied that he will face serious harm from the loan shark or any of his associates. 

43. In relation to the claim that rumours of his mother’s rape in Australia following him to China and causing the applicant psychological harm, the Tribunal has rejected that the loan sharks or their associates arranged for her to be raped as claimed. While it has accepted the possibility that she suffered a sexual assault in Australia, there is no other basis on which the Tribunal can be satisfied this will become known were she and the applicant to return to China. On her own evidence, she made no report to police about the incident, and has not even told her own partner. In these circumstances the Tribunal is not satisfied there is a real chance the rape would become known in China and cause detriment to the applicant in future. In any event, the Tribunal considers that psychological harm in the form of bullying, teasing and depression caused to the applicant if this information about his mother was revealed is purely speculative and would not come within the kind of serious harm as contemplated by s91R(2) of the Act, acknowledging that this is not an exhaustive list.

44. 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).

45. 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). For the same reasons given above, the Tribunal does not accept the applicant’s mother has an outstanding loan in China, and on this basis it finds there are no substantial grounds for believing the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment as a result of retaliatory action against him by loan sharks, or for any other reason arising on the material. Above it accepted that the applicant’s mother may have been sexually assaulted in Australia, however it does not accept this gives rise to substantial grounds for believing there a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

46. 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

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

    Meena Sripathy
    Member

    
    

    ATTACHMENT

    RELEVANT LAW

48. 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

49. 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).

50. 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.

51. 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.

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

53. 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.

54. 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.

55. 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.

56. 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.

57. 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.

58. 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

59. 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’).

60. ‘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.

61. 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

62. 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.