1517060 (Refugee)

[2018] AATA 288

1517060 (Refugee) [2018] AATA 288 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517060

COUNTRY OF REFERENCE:                  Germany

MEMBER:Frances Simmons

DATE:19 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2018 at 5:26pm

CATCHWORDS

Refugee – Protection visa – Germany – Migration history inconsistent with a fear of persecution – European Union citizen – Statutory effective protection in a third country – Involved in legal disputes in Germany – Targeted through court action for political reasons – Provided untranslated documents to the Tribunal – Tribunal unable to review these documents

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chen Shi Hai v MIMA (2000) 201 CLR 293

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Yang v Carroll (1994) 852 F Supp 460

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 [in] November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Germany. She was born in Berlin on [date]. According to the information she provided in her protection visa application, she has lived in Berlin for most of her life. She declares she reads, writes, and speaks English and German.

3. The applicant’s marriage ended in divorce in 2001.  She has one son but in 2009 he left home and they no longer have any contact.  Between 1996 and 2006 she [worked]. She retired [in] 2006 following two years on leave for health reasons.

4. The applicant first entered Australia [in] September 2012. She departed Australia [in] September 2012 and re-entered Australia [in] June 2014. [In] July 2014 she applied for a protection visa. This application was deemed invalid and she departed Australia and returned to Germany. [In] July 2015 the applicant entered Australia again. [In] August 2015 her [temporary] visa was cancelled.

5. [In] August 2015 she applied for a protection visa. The delegate found the applicant was in possession of a German passport in her name that was valid until [2020] and that the passport indicated that she was also citizen of European Union. The delegate found that the applicant had statutory effective protection in a third country as set out in s 36(3) of the Act.

6. The issue in this case is whether the applicant is a refugee, as that term is defined by Australian law, or whether she is entitled to complementary protection.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. 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, he or she 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.

8. 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 because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

11. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Summary of claims before the Department

13. The applicant’s claims in the protection visa application she lodged in August 2015[1] and discussed at the interview with the delegate can be summarised as follows

    ·The applicant is from the former East Berlin. Her father had applied for an exit visa from East Berlin in 1979 and she was included in his application. She was informed by former German Democratic Republic authorities of his death in 1984. Because of this application to leave East Germany (GDR) she was politically pursued.

    ·Since the applicant separated from her husband in 1999-2001 she has been denounced by state authorities and pursued by private persons. Her phone was monitored from 2000 onwards. She had to change the locks to her flat because documents were burgled/exchanged. She mentions that one of the burglaries occurred in 2009.

    ·The applicant claims that in 2004 she was unfairly treated in a car accident insurance claim. She claims she has been involved in civil disputes where forged documents have been issued against her. She claims that she has been wrongly accused of traffic violations. She claims that in 2010 she was wrongly accused of causing a traffic accident.  

    ·The applicant claims that she was accused of insulting a person and verbally abusing a police officer. [In] December 2014 two men in civilian clothes broke into her apartment and robbed her of 600 euros.  She described the men as ‘criminal police’.

    ·The applicant claims in 2008 she was knocked down by a person called [Mr A] and injured. She also claimed she was [robbed].

    ·In her protection visa application, when asked whether she thinks she will be harmed on mistreated if she returns to Germany, she responded yes ‘see a deliberate bodily injury by [Mr A], files on DVD 1’.

    ·The applicant claims she will be persecuted if she returns to Germany because she has been accused of various offences that she had not committed and she has been threatened with arrest and imprisonment by the public prosecutions office.

    [1] Departmental file, folios 21-24, 43-46.

14. In her protection visa application, the applicant refers to a district court order made against her in relation to a charge of insulting a person. She states that the documentation in relation to this order appears on ‘DVD 2’. The applicant states she was convicted of an offence of ‘insult’ on [date]/05/2015. She writes that she insulted no one.

15. The applicant’s protection visa application makes reference to two DVDs containing documentation relating to her claims for protection. The Tribunal notes that while these DVDs are referred to in correspondence between the applicant and the departmental officials and some German documents submitted by the applicant do appear on the Departmental file, the Departmental file does not hold copies of the DVDs.

    Interview with the delegate and the delegate’s decision

16. The applicant attended a protection visa interview on [date] October 2015. The Tribunal has listened to this interview.

17. At this interview she showed the delegate several documents on her laptop. The documents were in German and the interpreter provided an oral translation of certain documents. The delegate’s decision notes that:

    ·A document from [a] court states that the applicant was accused of insulting another person and that she had sworn at and verbally abused police.

    ·The applicant told the delegate that on [date] December 2014 the police had come to her house and threatened her because she had made several complaints against the police. She stated that the police were from the police but they were really criminal police.

    ·Another letter translated by the interpreter stated that there were complaints made by case workers against the applicant. Several legal bodies told her that they were not able to assist her as the issues she raised were outside their jurisdiction.

    ·A further letter claimed to have been received on [date] June 2015 indicated that the applicant owed monies to the German [government].

18. The applicant has submitted various documents with her protection visa application, including: identity documentation; untranslated pay slips of her retirement pension, documentation relating to financial assistance that she received from the German consulate in [Australia] and repaid by her on [date]/08/2015, and an untranslated letter dated [July] 2014 concerning debts owed to German agencies.  

19. After the interview with the delegate, the applicant submitted various German documents and was advised that these documents could not be assessed unless they had been translated into English. The applicant was asked, via email on [date] October 2015, if she could provide a document from the EU Court/EU legal body with an English translation. 

20. On [date] November 2015 the applicant wrote to the Department stating that ‘I do not have a document of the European court of justice, not stored on the DVD either’. The applicant refers to other documents on the DVDs which she states are with the Department.

    Application for review

21. The applicant submitted a copy of the delegate’s decision to the Tribunal. The applicant attended a hearing before the Tribunal.  There was an adjournment after the interpreter indicated that he was unable to continue. When the hearing resumed, the applicant gave evidence with the assistance of a telephone interpreter in the German and English languages. The applicant was provided with time to provide further information after the hearing and she submitted the two DVDs containing a large volume of documentation in the German language. Where relevant the applicant’s evidence is discussed further below in the Findings and Reasons.

    FINDINGS AND REASONS

    Nationality

22. The Tribunal finds that the applicant is a national of Germany. For the purpose of this assessment Germany is her receiving country.

    Whether the applicant’s claims are credible

23. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the 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 in establishing, the claim.

24. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal 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.[2]  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.[3]

    [2] MIMA v Rajalingam (1999) 93 FCR 220

    [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

25. The Tribunal has taken into account the fact that the applicant was unrepresented before the Tribunal and the Department. The applicant advised the Tribunal she did not have any medical conditions. The applicant was, at times, a difficult witness. Towards the close of the hearing the applicant repeatedly spoke at such length that parts of her responses could not be interpreted. She did not respond to requests to pause to enable the interpreter, who was providing interpretation services via telephone, to interpret. The applicant was provided with time after the hearing to provide additional information and documents to the Tribunal. 

26. After the hearing the applicant submitted two DVDs containing documents in the German language. Because these documents are not accompanied by English translations, the Tribunal cannot consider the information contained in these documents. The Tribunal accepts that the DVDs are the same DVDS that the applicant referred to in evidence before the Department. At the hearing the applicant gave evidence that the DVDs contain documents relating to over ten years of legal proceedings in Germany. At the interview with the delegate the applicant showed a number of these documents to the delegate on her laptop and the interpreter provided an oral translation of these documents (noted above).

27. The Tribunal is satisfied that the applicant has had a meaningful opportunity to put forward her claims to be a refugee or to be otherwise entitled to complementary protection. The Tribunal has considered the applicant’s evidence to the Department and the Tribunal about the legal proceedings that she claims have been brought against in her Germany. The Tribunal notes that the applicant was informed, in the letter inviting her to the hearing, at the hearing, and by the Department, that documents provided in a language other than English need to be accompanied by translations by a qualified translator. The Tribunal accepts that the applicant has been involved in legal disputes in Germany in the past. Having regard to all the evidence before it, the Tribunal is not satisfied that there is any utility in seeking English translations of the large volume of German documents contained on the two DVDs submitted after the hearing.

28. The Tribunal finds that the applicant is a citizen of Germany born in Berlin on [date] and that Berlin is her home area.[Sentence deleted]. The Tribunal accepts that her marriage ended in divorce in 2001 and that she has one son with whom she is no longer in contact. The Tribunal accepts that she has previously travelled to several European countries for [holidays]. The Tribunal accepts that she also travelled to Australia in 2012 and 2014 and, on both occasions, voluntarily returned to Germany.  

29. The Tribunal has considered the applicant’s claims that she will face political persecution if she returns to Germany but finds that these claims to be vague, highly speculative, lacking in any meaningful detail, and undermined by the applicant’s migration history. When asked what would happen if she returned to Germany, she claimed that she would be exposed to deliberately unjustified court orders. Asked who would expose her to unjustified court orders, she said: the chancellor, Angela Merkel, and the PDS Left Party in Germany. Asked why she would be targeted, the applicant did not provide any meaningful particulars but reiterated her claims that she would be targeted through court action for political reasons. She claimed that she had left Germany because she was given a bad name but she stated that she couldn’t prove it.

30. The evidence before the Tribunal indicates that the applicant first travelled to Australia in September 2012 and she returned to Germany the same month. She subsequently travelled to Australia in July 2014 applied for a protection visa and when this application was deemed invalid she again returned to Germany and remained there for almost a year. On [date] July 2015 she returned to Australia for a third time holding a [temporary] visa that was granted on [date] August 2014.[4] On [date] August 2015 she applied for a protection visa. At the hearing the Tribunal questioned the applicant about her experiences in Germany after July 2014. The Tribunal found parts of the applicant’s evidence about these matters confused and difficult to follow. Before the Department the applicant claimed that [in] December 2014 two men in civilian clothes broke into her apartment and robbed her of 600 euros. When the applicant was questioned about this incident at the hearing, she gave evidence that suggested to the Tribunal that the two men were not civilians but police attempting to enforce a court order that required her to pay a fine. She told the Tribunal that the police were the criminals. 

    [4] Tribunal file, folio 12.

31. The Tribunal accepts that the applicant has been a party to legal proceedings in Germany in the past, including disputes relating to the custody of her son, [and] a charge relating to insulting and verbally abusive behaviour allegedly engaged in by the applicant. The Tribunal accepts that between 2009 and 2011 the applicant was accused of various traffic violations and that she believes she was wrongly accused of having caused a traffic accident in 2010 and unfairly treated in a car accident insurance claim in 2004. The Tribunal accepts that since 2008 she has been involved in various civil disputes and that she believes that forged documents have been issued against her in these civil proceedings.  The Tribunal accepts that her mother died when she was a child and, while she was told this was the result of a [condition], she does not believe this to be true. 

32. The applicant has not credibly explained why she would be targeted or harmed by German authorities or political leaders or political parties because of her actual or imputed political opinion. The Federal Republic of Germany is a constitutional democracy made up of a federation of sixteen states.[5] Germany has a bicameral parliamentary system and elections are considered by observers to be free and fair and there are no reports of political prisoners or detainees.[6]  In any event, the applicant has not claimed to be politically active in Germany. Rather, the applicant has suggested that the reason that she has been targeted by the German authorities and exposed to unjustified court orders because she was included in her father’s application to obtain an exit visa from the former East Germany (GDR). The applicant claims, and the Tribunal accepts, that this exit visa application was made by her father in 1979, a decade before the fall of Berlin Wall, when he applied to emigrate from East Berlin. The Tribunal also accepts that the applicant’s father died in 1984 and that his death was never explained.  

    [5] “Germany - CIA World Factbook”, United States Central Intelligence Agency,

    [6] “Germany - Country Reports on Human Rights Practices February 2017”, US Department of State, 3 March 2017, type="1">

33. The Tribunal does not accept it is plausible that the applicant would be at risk of any harm – let alone serious harm or significant harm – because of events that occurred over three decades before she left Germany in 2015. The Tribunal finds that the applicant has lived and worked in Germany in the decades following the death of her mother and father. During this time she has travelled in and out of the Germany and worked [in a certain industry]. In this context, the Tribunal finds it lacks plausibility that she has been targeted by State authorities or by private individuals because of the activities and/or profile of any of her family members. As the Tribunal put to the applicant, her father died in 1984 and in the last two decades, she had travelled in and out of Germany to countries such as [deleted] and also, more recently, to Australia. When asked why she thought she would have problems if she went back to Germany now, given she had freely travelled in and out of Germany for the last two decades, the applicant maintained that residing in Germany was impossible for her because of the unjustified court orders.

34. As discussed with the applicant, it is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention,[7] for the reason that enforcement of such a law does not ordinarily constitute discrimination.[8] In this case the Tribunal is not satisfied that the applicant has ever been the target of politically motivated prosecutions or that she has been otherwise harmed or harassed by the German authorities for political reasons. At the hearing, the Tribunal asked the applicant whether she had ever been convicted of a criminal offence. The applicant did not answer the question directly and her evidence was rather difficult to follow: she referred to court orders for things she hadn’t done and also to custody orders. When asked if she had been jailed, she said she had been threatened. When asked whether a court had ever imposed a prison sentence on her, she told the Tribunal that, in this regard, she had never been before a court. She gave evidence that she had never been in jail in Germany. She claimed that she left Germany to avoid having to go to jail.

    [7] Applicant A v MIEA (1997) 190 CLR 225 per McHugh J at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467.

    [8] Chen Shi Hai v MIMA (2000) 201 CLR 293, at [20].

35. The Tribunal is not satisfied, based on the evidence before it, that the authorities in Germany have charged, or are investigating, the applicant in relation to the commission of any offences such that she may be extradited to Germany. The applicant left Germany travelling on a passport issued in her own name and she has not claimed to have had any difficulty doing so. [Sentence deleted]. The Tribunal found the applicant’s evidence that she would be targeted by the German authorities to be speculative, improbable and lacking in meaningful detail. The applicant told the Tribunal that she was 99 per cent sure there was a connection with her father. However, as noted above, the applicant’s evidence was that her father died in [date] and the applicant’s evidence indicates that she has lived in Germany since that time, worked in [a certain industry], and travelled in and out of Germany on multiple occasions. The applicant’s evidence to the Department and the Tribunal does not reveal any credible basis upon which the Tribunal could be satisfied that she will be persecuted for political reasons in Germany.

36. The Tribunal finds that the applicant’s migration history is inconsistent with her claims to fear political persecution in Germany. While the applicant traces her problems with the German authorities back to events that occurred before the fall of the Berlin Wall, in the decades that followed her evidence indicates that she lived and worked in Germany and travelled in and out of Germany to various European [countries]. Furthermore, as the Tribunal put to the applicant, the fact that she had voluntarily returned to Germany from Australia on two occasions might indicate to the Tribunal that she did not fear harm in Germany. The applicant told the Tribunal that she came to Australia in September 2012 to obtain permanent residency but because it was not easy to do so and she went back to Germany to see if something had changed in relation to her court proceedings. She travelled to Australia again in 2014 but she had difficulty with accommodation and her documentation for her protection visa application was not sufficient so she returned to Germany and scanned all her documentation onto the DVDs so she had evidence of the unjust and predetermined court orders.

37. The Tribunal finds that the fact that the applicant voluntarily returned to Germany from Australia in 2012 and in 2014 and then remained in Germany for almost a year before returning to Australia in July 2015 undermines her claims that she is at risk of persecutory harm if she returns to Germany. As noted above, the Tribunal accepts that the applicant has been involved in [legal] proceedings in Germany and that she had been charged and convicted in relation to insulting a person and verbally abusing a police officer. The Tribunal considers the applicant’s evidence indicates that she was convicted of this offence but it is not satisfied, on the evidence before it, that she received a custodial sentence or that she has ever been subject to a custodial sentence in Germany.  The Tribunal considers her evidence indicates that she was required to pay a fine for insulting a police officer and did in fact do so.  In any event, the Tribunal is not satisfied, based on the evidence before it, that this prosecution was politically motivated, malicious or discriminatory or the result of anything other than the application of a law of general application. 

38. On the evidence before it, the Tribunal is not satisfied that the applicant is currently the subject of any charges, or an investigation, by the authorities in Germany in relation to the commission of any criminal offences. The Tribunal is not satisfied that the applicant has ever been deprived of her liberty or subject to serious harm or significant harm as a result of any legal proceedings brought against her in Germany. Looking forward, the Tribunal is not satisfied that there is a real chance that she will be deprived of her liberty (either as a result of the application of a law of general application or for any other reason) or subjected serious harm or significant harm as a consequence of any of the legal proceedings that she was involved while she lived in Germany.

39. In her written claims the applicant complains about various criminal incidents and legal disputes in the decade before she left Germany and travelled to Australia in 2015. As noted above, the Tribunal accepts that the applicant may have been charged, convicted and fined in relation to insulting a person and verbally abusing police. The Tribunal also accepts that the applicant may have been ordered to repay monies she received as part of [welfare payments]. The Tribunal considers it is possible that the applicant’s flat was burgled in 2009. However, while her flat may have been burgled, on the evidence before it, the Tribunal does not accept that this was anything other than random criminal incident which did not, in any event, result in serious harm or significant harm to the applicant. With respect to her complaint that she was ‘knocked down’ by [Mr A]’ in 2008, the applicant has not presented any credible evidence that she is still at risk of any harm, let alone serious harm or significant harm, at the hands of this person. 

40. Having spoken to the applicant, the Tribunal considers it is possible that the applicant believes that the criminal incidents and legal disputes that she describes in her written claims are linked and that she is being systematically targeted by the authorities and/or private individuals. However, the Tribunal is not satisfied that there is any objective evidence that supports the conclusion that the applicant is being systematically mistreated and/or discriminated against by the authorities or by any other person or group in Germany. The Tribunal rejects any implication that the various criminal incidents in which the applicant was assaulted or her home was burgled between 2000 and 2010 and the various legal disputes that the applicant has been a party to in the decade before she left Germany are part of a conspiracy (either by the authorities or private individuals) to harm, harass or otherwise target the applicant for political reasons or for any other reason. The Tribunal is not satisfied that the applicant has been subject to politically motivated legal action in Germany the past. Nor, on the evidence before it, is the Tribunal satisfied that there is a real chance that she will be exposed to such action now or in the reasonably foreseeable future.

41. On the evidence before it, the Tribunal is not satisfied that the applicant has been charged with any offence that is still awaiting legal action.  The Tribunal does not accept that she will be persecuted if she returns to Germany because she has been wrongly accused of various offences. The applicant’s evidence does not satisfy the Tribunal that she is presently of any adverse interest to the German authorities for any reason or that there is a real chance that she will face serious harm or significant harm for any of the reasons claimed. The applicant’s evidence indicates that she has approached the Germany consulate in Australia and obtained a financial loan in July 2015 and repaid this loan in August 2015. [Sentence deleted]. 

42. The mere fact that the applicant is dissatisfied about the outcome of various legal proceedings in Germany, does not give rise to a credible claim to be owed protection, either as a refugee or under the complementary protection criteria. While it is possible that the applicant has debts in Germany related to legal disputes, the Tribunal is not satisfied that there is a real chance that she will face serious harm or significant harm for this reason;[details deleted]. Furthermore, while the applicant advised the German consulate she was seeking political asylum in Australia, the applicant has not claimed, and the Tribunal does not accept that she will be at risk of any harm (let alone serious harm or significant harm) in Germany as a failed asylum seeker.

43. The Tribunal finds that the applicant is in possession of a German passport in her name which is valid to [2020] and that this passport indicates that she is also a citizen of the European Union. When it was put the applicant that, as a citizen of Germany, she was also a citizen of European Union and that she had a right to enter and reside in any of the other 27 states that are members of the European Union, the applicant suggested that she would be prosecuted wherever she went in Europe. The applicant made essentially the same claim before the delegate but, when the delegate invited her to produce documentation supporting this claim, she indicated that she did not have such documentation and stated it was not stored on the DVD. On the evidence before it, the Tribunal does not accept that the applicant is of any adverse interest to the authorities in Germany or in the European Union. To the extent that the applicant has suggested that she would be prosecuted wherever she goes in Europe, the Tribunal is not satisfied that this is the case. 

44. The Tribunal is not satisfied that the applicant is now any adverse interest to the German authorities, including the police, financial administration or members or supporters of the PDS (the Left party), the land management office, former members of East German security, or to private individuals in Germany, for reasons relating to her political opinion or for any other reason. It follows that the Tribunal is not satisfied that the applicant’s phone was or is monitored by State authorities. Nor is the Tribunal satisfied that the applicant is of any interest to the German authorities or any other individuals or groups for reasons relating to her actual or perceived political opinion. The Tribunal is not satisfied that there is a real chance that the applicant will face persecution for reasons related to her actual or imputed political opinion.

45. Having considered all the evidence before it, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of her imputed or actual political opinion, race, nationality, membership of particular social group or her religion or indeed for any reason at all.[Sentence deleted]. The Tribunal finds that there is no real chance that any hardship she may experience if she returns to Germany would amount to serious harm for the purpose of the refugee criteria. On the evidence before it, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Germany now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a refugee.

46. As noted above, the Tribunal discussed with the applicant whether she could exercise his right to enter and reside in other EU Member States, in terms of s.36(3)-(5) of the Act. The applicant suggested that she would be prosecuted in EU member states (outside of Germany). For the reasons given above, the Tribunal does not accept that this claim is credible. However, having found that the applicant does not have a well-founded fear of persecution for a Convention reason in her home area of Berlin and surrounds, the Tribunal does not need to consider these other issues further.

    Complementary protection

47. The Tribunal has also considered whether the applicant is eligible for complementary protection under the Migration Act. Given the above findings of fact and the lack of any credible evidence that either the German authorities (including police, financial administration) or members of the PDS (Left Party) or former members of East German Security or any other person or group wish to harm the applicant, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal to Germany, there is a real risk that she will be subject to significant harm.

48. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment if she returns to Germany now or in the reasonably foreseeable future. Accordingly, 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 Germany, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

49. As the Tribunal has found that the applicant does not meet the requirements of s.36(2)(a) and s.36(2)(aa) of the Act, in relation to Germany, it is unnecessary for the Tribunal to assess whether Australia is taken not to have protection obligations in respect to the applicant, as a consequence of her legally enforceable rights to enter and reside other EU Member States, pursuant to s.36(3), as qualified by ss.36(4) and 36(5).

    CONCLUDING PARAGRAPHS

50. 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).

51. 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).

52. 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

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

    Frances Simmons
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …