1514594 (Refugee)

[2018] AATA 5166

1514594 (Refugee) [2018] AATA 5166 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514594

COUNTRY OF REFERENCE:                  India

MEMBER:Christine Cody

DATE:14 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 August 2018 at 2:48pm

CATCHWORDS

REFUGEE – protection visa ­– India – honour killings – applicant married Australian woman against parents’ wishes – divorce – credibility issues – inconsistent evidence – mental health issues – no real chance of serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 5, 36, 65
Migration Regulations 1994 (Cth) Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIMA [2007] HCA 40

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.

2. The applicant, who claims to be a citizen of India, applied for the visa on 27 November 2014 and the delegate refused to grant the visa on 6 October 2015.

3. According to his application form:

   ·     The applicant was born in [a village], Punjab, on [date][1] and is now aged [number] years. He has [number] years of education but did not provide details of any of his education. His ethnicity is Sikh, as is his religion.

   [1] There is a reference in his application form to having been born in [year]; the Tribunal accepts that this is an error.

   ·     He indicated he was not currently employed and provided no details of his past employment.

   ·     He speaks, reads and writes in English, Punjabi and Hindi and indicated that he would not need an interpreter for an interview. He has always resided in India prior to coming to Australia. He provided the same address from 2004 until May 2008.

   ·     He arrived in Australia [in] May 2008 (aged [number] years old). He came to Australia because he wanted to study and have a bright future here. He belongs to an orthodox and conservative Sikh family in India. They live in a village and there is a tradition that as soon as you become an adult, you must get married. His family wanted to marry him with a girl that he has never met or seen but he had different plans. He wanted to come to Australia and study and have a bright future. He was enjoying living his life to the fullest when he arrived in Australia.

   ·     He has not already experienced harm. However he is concerned that if he returns he may be killed or a false case will be fabricated against him. He fell in love with an Australian girl and they decided to get married. He told his parents about it and that is when he discovered that they had fixed up his marriage with one of the girls (described by the applicant as “the Indian girl”) from their friend circle. They got very upset and asked him to leave the girl immediately. By that stage the applicant thought it was too late and he had committed to his Australian girl and they were all ready to get married. He told his parents and they started threatening him over the phone. However he was deeply in love with her and could not leave her.

   ·     He fears that the Indian girl’s family will either kill him or get him behind bars. They hold him responsible for ruining their daughter’s life. He married the Australian girl against his parents’ wishes and they started living together. When the Indian girl’s family knew about it, they humiliated his family in society and considered his family were responsible for ruining their daughter’s life.

   ·     He tried his best to convince his family and the girl’s family over the telephone but he always failed.

   ·     He then became very depressed and his wife left him. He indicated that he was separated in [Australia] but did not provide a date of separation.

   ·     He was depressed and stressed all the time.

   ·     His family has denounced him as they hold him responsible for their miseries and humiliation in society. They threatened him a couple of times that they will kill him when he comes back because in the culture respect is the biggest thing in life and if this is lost then everything is lost. Even the girl’s parents have warned his parents that if he comes back they will kill him for ruining their daughter’s life.

   ·     His family has broken all ties with him and they do not talk to him anymore. He is considered to be dead to them.

   ·     He felt depressed and stressed and felt like committing suicide. He considers that if he goes back the family will kill him or fabricated accounts against him and they will do their best to destroy his life.

   ·     Even the authorities would be able to help him because the girl’s parents are very powerful and influential people have contact with local politicians and will try their best to destroy his life.

4. He provided a copy of the identification page of his passport issued [in] 2007.

5. The applicant had been invited to attend an interview with the Department however he did not attend. The Department refused the application considering that there was an insufficiency of evidence to support the claims.

6. There is no certificate of non-disclosure on the Departmental file.

   The Tribunal

7. The applicant provided the Tribunal with his application for review form and a copy of the Department’s notification of refusal letter (recording that he lodged his protection visa application on 27 November 2014 and that it was refused on 6 October 2015).

8. The Tribunal scheduled a hearing which was postponed at the applicant’s request on the grounds that he had recently engaged representation. Prior to the new hearing date, the Tribunal received submissions from the agent:

   ·     It was noted that he had been unable to attend the protection visa application interview on 6 October 2015.

   ·     Traditional matchmaking arrangements are widely practised in South Asia where the parents decide who their children should marry, and, in the majority of cases, the children have no say whatsoever. The marriage did not last long. They were divorced. His family was hostile to the marriage and the stigma of his marriage brought shame on the family’s honour as well as on the honour of the girl who was chosen to marry him and her family. People go to extreme lengths to protect their honour.

   ·     Country information was attached providing references to honour killings in the Punjab.

   ·     The applicant’s fear of persecution applies to India as a whole. He is afraid of two families, and in India, honour killing is rampant. Relocation is not a viable option for the applicant.

   ·     His Honour Mr Justice Kirby was quoted from SZATV v MIMA [2007] HCA 40 at 81 noting that in some circumstances, having regard to the age of the applicant, the absence of family networks or local support, the hypothesis of internal relocation may prove unreasonable. The viability of support mechanisms must be considered.

   ·     It was also submitted that he would not be able to obtain protection from the authorities in India regardless of where he relocated. He has a well-founded fear of persecution as well as a fear of being arbitrarily deprived of life.

   ·     The applicant would be walking in danger all the time. The risk is not just personal, but also stems from close family members. It was submitted that “even if his family assures him at this stage they have moved on it may not be true”. 

   ·     It was submitted that the applicant suffered depression post-divorce and family threats. He has been on medication since 2016 for the treatment of depression. He lost the love of his life which he thought worth taking on the opposition of his whole family, but she left him and now he has a broken family relationship with family members who are hostile to his life.

9. Also provided was:

   ·     A letter from the applicant’s GP dated [in] August 2018 stating that he is suffering from depression and is on medication from February 2018. He also suffered from the same illness in 2016.

   ·     The marriage certificate between the applicant ([Occupation 1]), and [Ms A], [dated] February 2013.

   ·     A copy of the divorce order dated [in] September 2015, showing that it was the applicant who applied for a divorce.

10. The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. He did not seek the assistance of an interpreter, and the Tribunal reminded him on a number of occasions that if he sought such assistance or didn’t understand something, he should let the Tribunal know. The Tribunal is satisfied that the applicant was able to understand the proceedings, and present evidence and arguments.  

11. The applicant was represented in relation to the review by his registered migration agent, who also attended the hearing. He did not make any submissions at the end of the hearing, instead relying upon his written submissions, noting that he had not previously acted for the applicant, and noting that there was a mistake in the applicant’s evidence about the day and month, but not year, of the wife’s date of birth.  

12. The applicant’s evidence included the following:

    ·     He said that he received assistance in completing his application form. Everything is true and correct; there are no errors or omission or changes.

    ·     The Tribunal noted that his passport had expired and asked if he had applied for a new one. He said that he has not yet done so, but will do so next week.

    ·     The applicant said that while he has been in Australia no one has been supporting him financially. He has worked the whole time ([in several occupations]) ever since he arrived in 2008, and the only breaks he has had from working were for a month at a time when he was in between jobs.

    ·     In India he finished school in [year] aged [number] years. While at school, and after he finished, he worked as a [Occupation 2] with his family. He wanted to come to Australia to study and did so. This cost nearly [an amount]; paid for by his father.  He and his father paid more student fees in Australia; they last paid student fees in 2012.

    ·     The only course he successfully completed in Australia was [specified subject]. When details of his studies were requested, he said he actually did not finish the Diploma course, he finished two components of it ([specified]) over a two year period. [Details deleted]. He last studied in 2010.

    ·     His last student visa expired in 21 October 2012. Prior to that, he had put in an application for another student visa, which had been rejected because he was not attending classes. He confirmed that the Department considered that he was not a genuine student. From 22 October 2012 he thus was unlawfully present until he lodged his protection visa application in November 2014.

    ·     When the Tribunal put to the applicant that he could have returned to India and lived in a different city, he responded that he did not do so because he was trying to get in contact with his Australian wife.

    ·     His last communication with his father was in October 2017 when he called and threatened the applicant that if he comes back having disrespected the family they will kill him and lodge a case against him. When asked what kind of case they would lodge against him, he said it could be anything, for example drugs or robbery.

    ·     The threats have been happening continuously, throughout the years, and continuing to date.

    ·     Sometimes he talks to his mother and she says don’t come back, they will do something if you go back, they will kill him (namely his father, [sibling], anyone from his family).

    ·     The applicant said that [a number of] months after the marriage, his wife left him; the date of separation was in September 2013.

    ·     The Tribunal asked the applicant what he feared if he returned and he said he fears that his family and the Indian girl’s family want to kill him. He has no other worries or concerns about returning to India.

13. The Tribunal put to the applicant that it had not made up its mind, but that it had concerns about the credibility of his claims.  This included that the Tribunal put to the applicant that there was a long time that he was in Australia when he feared serious and significant harm, but he remained unlawfully present and delayed in lodging a protection visa application. Having regard to his history of having arrived on a student visa, but only undertaking minimal study, and not completing his intended qualification, the Tribunal may consider that he just wants to stay in Australia. In response, the applicant said that honour killings happen all the time in India. Further relevant discussions and evidence are set out below.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

14. The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

15. The applicant produced to the Tribunal his passport issued by the Indian authorities. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of India, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is India.

    Credibility

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

17. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

18. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169–70).

19. The Tribunal had a number of concerns about inconsistencies in relation to the applicant’s claims, as well as his changing evidence, as set out below.

20. Firstly, the applicant changed his evidence as to when the threats from his family started. He initially told the Tribunal that ever since he got married in February 2013 his father had been calling and threatening him.  Before the marriage they had been chatting once or twice a week.

21. Later however he said that the threats started when he told his family, three months before the marriage, that he was planning to marry his girl. In that call, his father said that he had to marry an Indian girl, he refused, so his father said that if he comes back to India they would kill him. When the Tribunal noted the change in evidence the applicant did not offer a reasonable explanation; he just referred to the threats made before the marriage. The Tribunal considers that if the applicant’s father had actually threatened to murder his son, and the applicant believed that he would do this (as he says), then the applicant would not give inconsistent evidence as to whether this occurred before or after his marriage.

22. Secondly, the Tribunal was concerned with the applicant becoming unlawfully present and his delay in lodging a protection visa application. He told the Tribunal that he feared he would be killed if he returned to India since December 2012, by his father and his side of the family, as well as the Indian girl’s family.  However, he also told the Tribunal that he had not studied since 2010, and his student visa had expired in 2012. He then remained, without a visa, unlawfully present in Australia until November 2014, at which time he lodged his protection visa application. In the circumstances, the Tribunal put to him that it was difficult to understand his delay in lodging until November 2014.  In response, the applicant said that he was thinking that in 1-2 years they will calm down and he will go back. The Tribunal put to the applicant that this was difficult to accept, as it is his evidence that the threats were continuous and ongoing, they were still upset with him; he had affronted their dignity. In the circumstances it was difficult to understand how he could think that they would calm down. In response, the applicant said that he was going through a lot at the time, his marriage had broken down and his family and the girl’s family were threatening him. The Tribunal noted that this was its point, namely that, if he was still receiving threats, it is difficult to accept his claim that he thought that they would calm down. The Tribunal does not find the applicant’s explanations to be persuasive and considers that his delay in lodging a protection visa application, as well as his evidence and explanations, undermine his credibility.

23. Thirdly, the Tribunal was concerned that the applicant’s claims were inconsistent relating to the nature of his family and applicable traditions. As put to the applicant, in his application form he claimed that “my family lives in a village and there is a tradition that as soon as you become a major you must get married. My family wanted me to marry a girl I have never met or seen. But I had different plans. I wanted to come to Australia and study and have a bright future.” The Tribunal put to the applicant that it was difficult to understand how, having regard to the strict conservative Sikh family tradition of marrying as soon as one turns 18, he managed to put his wishes first, and have his parents pay a significant sum of money to allow him to come to Australia, instead of remaining at home and getting married in accordance with tradition. In response, the applicant said that he wanted to study. The Tribunal put to the applicant that it appeared that his wishes were more important than the traditions and family requirements, and his family had a chance to have him married, but they did not do so. He said he did not know why. The Tribunal considers that the applicant’s claim that his parents allowed him to subvert tradition by going overseas to study (and paying for him to do so) contradicts his claim that his parents belong to a strict traditional family and that, as soon as he turned 18, he should have been married.

24. Fourthly, the Tribunal was also concerned because the applicant provided inconsistent evidence about the reason why his wife left him. As put to the applicant at hearing, in his application form, he said that his wife left him. He went into deep depression and was stressed all the time. He tried his best to contact her and know about her but he failed. He does not know what happened and why. Even to this day he does not know exactly what happened and the reason why she did all this.

1. At hearing, however, he told the Tribunal that she had received telephone calls from his father, and the Indian girl’s brother, threatening to kill the applicant if he returns to India, and so she was too scared. The Tribunal asked whether they said anything else to her and he said no. The Tribunal said it was not his intention to return to India, so it was difficult to understand why she was scared to the extent of leaving him, as she was not threatened, and he was only going to be at risk of harm if he returned to India. He did not explain other than to say that she was too scared and that was the reason why she left him.

2. The Tribunal then put to the applicant that his evidence at hearing was inconsistent with his application form. If he was aware that she had left him because she was scared, he would not have claimed in his application form that he did not, to this day, know the reason why she left him. In response, he said he did not know the main reason why she left him. The Tribunal put to him that he had given evidence of what must be the main reason because it was the only reason he gave; namely that she was scared. In his initial evidence he had not suggested that there was any other reason.

3. The Tribunal did not find his explanation to be persuasive and considers that his inconsistent evidence undermines his credibility.

4. The applicant gave further inconsistent evidence about Ms [A]. When the Tribunal asked whether he had ever had contact with her since she left, he said, no, he still loves her and he has wanted to get back with her if he could. The Tribunal noted however that this was inconsistent with the divorce document he provided, which showed that he was the one who had applied for divorce. The Tribunal asked why he would have applied for the divorce (which was granted in September 2015) if he still loved her and wanted to get back with her. He responded that he was thinking of moving on. While the Tribunal accepts that the applicant could have felt hurt and wanted to move on; it is concerned that this is inconsistent with his claim that even today he still loves her and wants to get back with her. Having regard to its other concerns, it is not prepared to accept his explanation, and considers that his application for divorce, while claiming that the same time that he has wanted to get back with his wife, further undermines his credibility.

5. For the reasons set out above, the Tribunal does not consider the applicant to be a credible witness.

   Other matters

6. As discussed at hearing, while the Tribunal accepts that there are honour killings in India, this does not mean that this applicant faces a real chance of serious harm or real risk of significant harm in this respect. The Tribunal does not accept that the country information indicates that this particular applicant’s claims are true.

7. While the Tribunal acknowledges that the applicant could have been nervous at the hearing, the Tribunal does not accept that this can explain the difficulties with his evidence. The Tribunal noted that in his application form (2014) he had referred to being depressed and stressed, but the GP’s letter said that it was in 2016 and 2018 that he has suffered depression, not any earlier. When this was put to the applicant, he said that he was feeling bad in 2013, in 2014 he was okay, in 2015 and 2016 he was really bad and then he was put on medication. The Tribunal said that it would accept that he would have been upset about the breakdown of the marriage, however having regard to his evidence that he was able to work continuously the whole time he has been in Australia, it did not appear that the delays in lodging a protection visa application or his period of unlawfulness could be attributed to depression. The Tribunal also noted that it may not consider that depression could explain the difficulties with his evidence. In the circumstances the Tribunal is not satisfied that the applicant’s depression, during which he has remained able to attend work and function, can explain the difficulties with his evidence.

   Credibility summary  

8. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.

   Findings on the applicant’s claims

9. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept the applicant’s claims that: he comes from a strict conservative Sikh family where he must obey the wishes of his family; his parents had arranged his marriage to a particular Indian girl; his parents or anyone else was upset that he married Ms [A] in Australia; he has been threatened by anyone; his family have been threatened by anyone or have been stigmatised; anyone in India has any adverse interest in him. The Tribunal finds that the applicant does not have a genuine fear of harm, for any reason, and on the evidence before it, the Tribunal does not accept that he faces a real chance of serious harm or a real risk of significant harm for any reason.

10. The Tribunal accepts that he was married and divorced in Australia; however it does not accept that his relationship or divorce has had an adverse effect on him or his family, nor does it accept that the applicant faces a real chance of serious harm for this reason.

11. The Tribunal finds that the applicant has been prepared to make applications to remain in Australia (a student visa which was refused because he was found not to be a genuine student, and protection visa application, where the Tribunal considers that he has made false claims) so that he can continue to stay, and work, in Australia. The Tribunal finds that the applicant is a resourceful person who was able to come to Australia and survive here, even while unlawfully present.

12. The Tribunal put to the applicant that, if it did not accept his claims, then it would appear that he could return to India, live with his family, and get a job, noting that he has worked, and accumulated work experience, in Australia. It noted that it was required to have regard to the DFAT report on country conditions, but if it did not accept his claims, it did not appear that he would face a real chance of serious harm or real risk of significant harm for any reason in India. In response, the applicant said he won’t be safe; that is his main concern. The applicant did not suggest that his depression would affect his ability to work in India; indeed it was his evidence to the Tribunal that, although he has had depression, he has continuously worked in Australia in a variety of jobs. The applicant did not claim that he could not access his medication in India. The Tribunal is not satisfied that there is any reason to consider that the applicant faces a real chance of serious harm or real risk of significant harm in India.

13. On the evidence before the Tribunal, it is not satisfied that the applicant has faced any past harm, nor that he faces a real chance of serious harm or a real risk of significant harm on the basis of honour, stigma, arranged marriage, depression or any other reason.

14. The Tribunal is not satisfied that there is any reason for considering that the applicant faces a real chance of serious harm. 

15. The Tribunal has considered the applicant’s claims individually and on a cumulative basis. Having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.

    Complementary protection

16. Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

17. The Tribunal has accepted that the applicant is a [age] male from India, who was educated and has worked in India, and then has worked in Australia for the last 10 years sufficiently to support himself. It accepts that he was married and divorced in Australia, however it does not accept that this has had an adverse effect on the applicant (other than his emotional state) or his family, nor does it accept that the applicant faces a real risk of significant harm for this reason. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in relation to the majority of his claims. The Tribunal does not accept that the applicant has experienced any of the past harm or threats claimed. The Tribunal considers that he is a resourceful person who has managed to survive in a foreign country. The Tribunal considers that he will return to live with his family, whom the Tribunal considers are supportive of the applicant, and he will work again in his home country, and that although he has depression he will continue to take his medication. The Tribunal does not accept that there is any reason that he will face a real risk of adverse attention or harm amounting to significant harm from anyone, including as a result of country conditions as set out in the DFAT Report.

18. On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely India, that there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    CONCLUSION

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.

    Christine Cody

    
    

    Member

    ANNEXURE A - RELEVANT LAW

23. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

24. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

25. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

26. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

28. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

29. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

30. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

31. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

32. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

33. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

34. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

35. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

36. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

37. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.