1604465 (Refugee)

[2019] AATA 5495

1604465 (Refugee) [2019] AATA 5495 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604465

COUNTRY OF REFERENCE:                   India

MEMBER:James Silva

DATE:2 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2019 at 1:05pm

CATCHWORDS
REFUGEE – protection visa – India – borrowed money for student costs and father’s medical expenses – threats from lender – credibility – selective, exaggerated and misleading evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2

CASE

MZAFZ v MIBP [2016] FCA 1081

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. The applicant is a man in his [age] from India.

2. The applicant arrived in Australia in June 2007, as the holder of a student (subclass 572) visa. He applied for a protection (class XA) visa on 14 November 2014. On 8 March 2016, the delegate of the Minister for Immigration and Border Protection refused to grant the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 1 May 2018.

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

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

7. The applicant claims to have borrowed a large sum of money from an acquaintance and financier, to cover his student costs and his father’s medical expenses. He has been unable to repay the loan. The applicant claims that the financier has threatened to maim or kill him, and he fears he will carry out these threats. While the police would respond to a complaint, he fears that they will not be able to provide adequate security from the financier.

   Background

8. The applicant is an [age] year old man from a village in Patiala district, Punjab, India. He lived there, [prior] to his departure for Australia in June 2007. He is a speaker of Punjabi, Hindi and English.

9. The applicant attended school in Patiala, completing Year [number] in March 2005. He gives no details of past employment in India. At hearing, he said that he went on to complete [studies], and occasionally helped on the family’s farm, but had no paid employment.

10. The applicant’s parents and a brother live in India. His father previously worked as a [Occupation 1], and occasionally on the family’s farm, but he suffers poor health and has not worked since the applicant was about [age]. He stays at home. The applicant said that, at least some time in the past, his father used to beat him and his brother. Medical experts have not been able to diagnose his father’s health problem. He intimated that it might be linked to his father’s drug use as a [Occupation 1].  

11. The family derives income from the family farms. The applicant said that they have [number] farms (possibly ‘fields’), devoted to [crop] cultivation. Other people work the land, and the family derives income from crop sales. The applicant referred to his family as ‘middle income’. His mother does home duties.

12. He also mentioned that his grandfather, who died last year, was a well-respected figure locally. Local residents (including the family’s creditor, [Mr A]) are generally sympathetic to the father’s health problems and the impact on the family.

13. The applicant has one brother, who has qualifications in [subject]. The applicant said that his brother has been unable to find work in his field of expertise. He worked for a while as a [Occupation 2], but that was poorly paid. He is currently ‘doing nothing’.

14. The applicant holds an Indian passport issued in Chandigarh in [2004]; it expired in [2014]. He brought to the hearing a replacement passport issued in Melbourne in [2016].

15. The applicant arrived in Australia in mid-2007 and obtained successive students visas, the most recent of which expired in October 2009. As noted above, he lodged his protection visa application on 14 November 2016.

16. The applicant said at hearing that, after the expiry of his Australian student visa (in 2009), he lived in a share house, and paid only a small amount of rent. For about four years, he had no permission to work and just ‘did nothing’. He said that he used to socialise with friends, watch movies at home and go to fast food restaurants. Occasionally, he ‘helped’ his friends, by which the Tribunal understood that he did casual labour. The applicant said that he obtained permission to work after lodging his protection visa application (hence in late 2014 or early 2015). However, he said that he has not had much luck finding work, although he worked for short periods for major retailers. The applicant’s financial situation, in particular his capacity to pay off alleged large debts in India, is a central part of this case. The Tribunal considers it in detail below.

17. More recently, in June 2018, he married a [Country 1] citizen born in [Country 2], who now lives in Australia. His partner is a [Occupation 3] in a [Business]. The applicant said that the couple plan to have children and settle in Australia.

    Evidence

18. The material before the Tribunal includes the following:

    §  The applicant’s protection visa application form, lodged on 14 November 2014. His protection claims are entered on the form.

    § The applicant provided a partial photocopy (biodata page) of his Indian passport, issued in Chandigarh in [20014].

    §  The applicant provided a copy of a document entitled ‘Pronote’, dated [February] 2007, which appears to be a loan contract or promissory note for a loan of Indian rupees (INR) [amount].

    §  The applicant attended a protection visa interview (‘Department interview’) on 7 November 2016. The Tribunal has listened to the recording of the interview, which is on file.

    §  The protection visa decision record (‘delegate’s decision record’) of 8 March 2016.

    §  The application for review has attached to it a copy of the delegate’s decision record.

19. The Department file includes an application for a bridging visa, lodged on 16 December 2014, in which the applicant claims that he needs permission to work as he has no funds. It also includes a copy of the test report form for applicant’s International English Language Test System (IELTS) test, sat in May 2006. 

20. The applicant attended a Tribunal hearing on 1 May 2019, held via video link between the Tribunal’s offices in Sydney and Brisbane. The hearing was held in English, in which the applicant is fluent. A member of Tribunal staff observed the hearing, with the applicant’s consent.

21. The applicant is not represented in this matter, and did not present any witnesses.

22. The Department issued a certificate under s.438(1)(a) certifying that the disclosure of certain information would be contrary to the public interest ‘because [the folios] contain information relating to an internal working document and business affairs’. This concerns the following folios:

    68 – protection visa application validity checklist

    69 – identification test checklist

    89 – a previously completed disclosure decision checklist, in which the delegate had assessed there to be no folios on the file that fell within the scope of s.437 or s.438

23. In the Tribunal’s view, the certificate does not properly identify a basis for public interest immunity[1]. Also, the material in the folios is irrelevant to the conduct of the review as it concerns the validity of his application and his identity, issues that are not in dispute. The Tribunal alerted the applicant to the certificate, and explained its views on the validity of the certificate and the relevance of the information in the folios. He noted this without comment.

    [1] The Tribunal notes, for instance, the Federal Court’s view in MZAFZ v MIBP, [2016] FCA 1081 (Beach J, 7 September 2016), that similar wording, ‘internal working documents’ could not form by itself form the basis for a claim of public interest immunity.

    Country of reference / receiving country

24. The applicant claims to be a national of India. He holds an Indian passport, and demonstrated his familiarity with that country. There is nothing to suggest he has the nationality of any other country. On the available evidence, the Tribunal finds that he is a national of India. India is therefore the country of reference for the purpose of his assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    Assessment of claims: credibility

25. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

26. Overall, the Tribunal found the applicant’s claims and evidence to be selective, exaggerated and misleading. It is not satisfied that he gave a full, reliable account of the funding for his travel to Australia; his and his family’s relationship with a local financier/money lender; or his own activities and finances in Australia. In essence, he presented a basic claim that he owes a lot of money to a money lender who will now harm or kill him. However, he struggled to provide meaningful detail on issues such as the current status of the loan; his efforts to pay it back; and the creditor’s response to his default, over a period of more than a decade. In sum, the Tribunal formed the view that the applicant was not speaking from personal experiences at all. This casts doubt over the truthfulness of his claims and evidence, and indeed his need for protection. The Tribunal’s full assessment is below.

    Indebtedness

27. In his statement of claims, the applicant wrote that he borrowed the equivalent of $A[amount][2] from a financier [named] [Mr A], before travelling to Australia (early 2007).

    [2] At current rates, this is about Indian Rupees [amount](xe.com)

28. The applicant claimed that he was supposed to have repaid the loan, with interest, by 2009. However, writing in 2014, he claims that the debt now stands at $A[amount][3]. He has been unable to repay it, because: (a) he has not found steady paid work in Australia, and (b) his family’s financial situation in India is poor, exacerbated by his father’s health problems.

    [3] About INR [amount].

29. The loan: The applicant presented a copy of a document with the hearing ‘pronote’, with a separate section signed ‘receipt’. The ‘pronote’ (perhaps a variation of the words ‘promissory note’) stated that [Mr A] has given the applicant INR [amount], half of which is a loan that is subject to annual interest of 8 per cent. At hearing, the applicant said that he had submitted a copy of the loan contract, and there is no further documentation relating to the loan or any efforts to recover it.

30. The applicant told the Tribunal that [Mr A] operates in the village as a financier. Basically, he purchases the [crops] from local farmers, and acts as a kind of banker for them. He also acts as a money lender for local villagers, as a kind of side business. The applicant said that [Mr A] is not a registered money lender, but it is well-known that he can lend money to villagers for emergencies. This seems far removed from the applicant’s written claim that [Mr A] ‘is running a big finance company [and] has many political contacts through which he might kill [the applicant]’.  

31. According to his evidence at hearing, the applicant informed [Mr A] that he needed the funds in order to obtain an Australian visa. [Mr A] gave the applicant half the money for his immediate expenses. He deposited the other half in the applicant’s bank account. The applicant said that this was intended to be a kind of emergency fund. Meanwhile, however, the family has drawn on it to meet his father’s medical expenses and other costs.

32. The Tribunal wondered whether there was any security for the loan (such as over the family’s farm properties), given that it was a large sum transferred to the applicant for the purpose of overseas travel. The applicant said that there was no security. This was because his grandfather had been well-known and well-respected. He implied that [Mr A] expected the family to live up to their obligations as a matter of honour, and for the applicant to pay off the loan from Australia.

33. Management of the loan: 2007-2019: At both the Department interview and the Tribunal hearing, the applicant acknowledged that he had an obligation to repay the loan sum, and that he did not intend to avoid this.

34. At hearing, he estimated that he had repaid about INR [amount][4] (in other words, about 3 per cent of the original loan amount). He said that his brother had paid small sums when he had been working, but he no longer has a job. The applicant estimated that he had sent a total of some $A [amount] in remittances back to India, and thought that some of this might have been used towards the loan. The applicant said that he had no records or receipts of any loan repayments. He explained that he had been without work for a long period in Australia, and when he did have work, he had been very busy and did not focus on the outstanding debt.

    [4] About $A [amount].

35. In response to the Tribunal’s surprise at the small sum that he had repaid – particularly if, as claimed, he and his family were under pressure to repay a loan going back to 2007 – the applicant said that he has only had permission to work for the past three or four years. He found work with some major retailers, for limited periods, and this enabled him to send small sums back home. The Tribunal noted that the applicant, in the course of seeking to have his original hearing date rescheduled, had submitted documents showing that he had hired a car in [Region 1] for ten days and that he had [an] appointment in [City 1] during this period. The applicant explained that he and his wife had not had a honeymoon, and that he had found a discount coupon for [the appointment] in [City 1]. In other words, he suggested that he had been frugal, and that he had not used money that otherwise might have been available to pay off his debts in India.

36. Current status of the loan: The applicant told the Tribunal that he thought the current balance of the loan was about $A[amount]. He based this on what his mother and brother had told him recently. He said that he did not have any further insights into what is now owed. As noted above, the applicant said that he and his brother did not keep any records of the amounts that they had given to [Mr A].

    Assessment

37. Country information discussed at hearing indicates that many Punjab residents aspire to live abroad, and that they borrow money to do so. For instance, a 2015 study showed that more than half of Punjab emigrants borrowed money from friends and relatives to meet the expenses of moving abroad, and some 15 per cent turn to money lenders. In many cases, it is people from the poorest sections of the community who turn to money lenders, and they may be subject to loans at exorbitant rates.[5]

    [5] Man Aman Singh Chhina, Despite harsh terms, Punjab’s poorest sections rely on loan sharks for moving abroad, Indian Express, 4 December 2015:

38. The Tribunal accepts that the applicant and his family may have taken out a loan to fund his travel to Australia as a student, at least in part. However, it has significant concerns about other aspects of his claims.

    §  The Tribunal accepts that the loan may have been arranged through informal channels, but on the available material, it is not satisfied that the loan was illegal, or that the terms were exorbitant or unconscionable. In other words, it does not accept any suggestion that [Mr A] was a money lender who exploited the applicant and/or who acted illegally.

    §  The applicant provided a single document to demonstrate the loan, namely the ‘pronote’. This states that he received the sum of INR [amount], half of which is via a loan [in] February 2007. The legal status of the other half - presumably the amount that was put in the bank account for emergency use - is unclear. It is striking that the applicant did not know, and appears not to have enquired, as to what the contractual arrangements were for the other half.

    §  As the Tribunal flagged at hearing, it is also surprising that a loan for such a sum, made to a person who was departing India, was not subject to any kind of security. While the applicant suggested that this might not have been necessary, due to local bonds of trust, other aspects of the ‘pronote’ – such as the witnessing of the signatures and provision allowing for [Mr A] to transfer the debt – are decidedly business-like.

    §  By his own evidence, the applicant has not kept track of the loan repayments that he and his brother have made, and had only a casual interest in the current balance. This is surprising, given his claim that the family is struggling financially and that the unpaid debt puts him (and perhaps family members) in danger. The applicant’s vague and seemingly uninterested responses add to the Tribunal’s doubts that he has outstanding debts.

    §  The Tribunal does not accept that the applicant has given a full and honest account of his activities, work or financial situation in Australia. As a result, it does not accept that, over the past 12 years, he has sent only some $[amount] back to India; or that his family may have used only a portion of this sum towards repayment of the loan. The applicant’s account of his recent travel to [City 1] – even if, as claimed, it was in partial fulfilment of promises between him and his wife, or to receive discount[service]– adds to the Tribunal’s view that he has downplayed his financial resources, and hence his capacity to service any loan in India.

39. In light of the above concerns, the Tribunal accepts that the applicant may have borrowed some money, to fund his travel to and initial study costs in Australia. However, it does not accept that he currently has a large outstanding loan to a local money lender.   

    Pressure and threats from the financier

40. In his statement of claims, the applicant wrote that [Mr A] has been constantly threatening his family; the applicant has also received calls threatening to kill him. The applicant noted that [Mr A] has a big finance company and many political contacts. He therefore has the capacity to kill the applicant. The authorities will likely yield to pressure not to protect the applicant from such harm.

    [Mr A]’s efforts to recover the funds

41. The applicant told the Tribunal that he initially assured [Mr A] that he would find work in Australia and aim to repay the loan in full within two years, i.e. in 2009. Over time, [Mr A] has become increasingly upset and angry about the applicant’s failure to repay the loan.  

42. Some twelve years have passed since [Mr A] transferred the funds to the applicant, and ten years since the applicant was due to have discharged the loan. The Tribunal asked the applicant whether [Mr A] had taken any recovery measures, for instance, through legal action and (perhaps) an effort to seize some of the family’s land. The applicant said that had been no such action. He suggested that [Mr A] knew that the applicant was responsible for the loan, and he might also have taken into account the family’s difficult situation, given the death of the (applicant’s) grandparents last year (they were highly respected), his father’s poor health and his mother’s difficult position. In other words, the applicant implied that [Mr A] showed restraint towards his family out of consideration for their difficult situation, and because the loan was made to the applicant personally.    

    Threats from [Mr A]

1. The applicant told the Tribunal that [Mr A] has sworn at his brother, though this stopped short of any physical violence or threats. However, his real anger was towards the applicant, and [Mr A] vowed to kill him if he returns. At the Department interview, the applicant gave a slightly more expansive account of [Mr A] having come to his family home, threatening his parents; that he threatened to kill the applicant and ruin the family; and that he had also called the applicant a few times in Australia.

2. The Tribunal explored the context of these (alleged) threats, for instance, whether [Mr A] had made similar loans to other people going abroad, and whether he had displayed violent behaviour or threats in other situations. The applicant said that [Mr A] lent money to other local people, but he was not sure of the circumstances. As for whether there are any reports of [Mr A] acting violently, the applicant said that he is not aware of such instances. However, he added that in India, money leads to power. This means that, in practice, [Mr A] exerts control over others and can ‘do anything’. The Tribunal understood the applicant to mean that, as a person with money and influence, [Mr A] could easily carry out threats of violence (including, he implied, by engaging others to do these things) and act with impunity. However, it appears that the applicant does not know and has not turned his mind to whether [Mr A] in fact acts in this manner.

3. The Tribunal wondered why, if the applicant returned without having paid off the loan (or a fair portion of it), he thought that [Mr A] would maim or kill him. This would surely reduce his chances of ever recovering the funds; moreover, it would hurt the applicant’s family. The applicant did not respond directly to this point. He reiterated that [Mr A] had told his brother that he would definitely harm him if he returned.

   Assessment

4. In the Tribunal’s view, the applicant’s claims lack credibility. First, the evidence of [Mr A]’s efforts to recover the loan sum was sparse. There appears to have been no correspondence about the current balance, no letters of demand, and no legal action (or threat thereof) against either the applicant or his family. This is all the more striking given that the applicant produced a copy of the written contract covering the loan. Second, the applicant’s vague evidence about the loan repayments to date (from himself or his brother) and the current balance of the loan cause the Tribunal to doubt that he has any outstanding loans to [Mr A]. In particular, it casts doubt on the applicant’s claim that he is indebted to a wealthy, powerful man who is making credible threats to harm or kill him. Finally, the Tribunal considers the applicant’s portrayal of [Mr A] to be contrived. On the one hand, he suggests that [Mr A] is considerate towards village farmers and understanding towards his family situation, and remarkably patient towards the applicant’s non-payment so far. On the other hand, he claims that [Mr A] has signalled his willingness to harm or kill him, extra-judicially, if the applicant returns. It is difficult to believe that, if faced with such threats, the applicant has not made enquiries as to whether [Mr A] has acted in this way in the past.     

5. Taking all of these concerns together, the Tribunal does not accept that the applicant has a large outstanding debt to a money lender in his home area; that the applicant or family members have been subject to verbal demands or threats; or that the money lender has threatened to harm or kill the applicant if he returns to India.

   Findings

6. The Tribunal accepts that the applicant may have borrowed money for his travel to and study in Australia, and for other family expenses. However, it does not accept that this loan remains outstanding after more than ten years, with virtually none of it paid off; that the money lender has threatened the applicant and his family; and that the applicant genuinely fears that the money lender will harm him on his return to India.

   ASSESSMENT: REFUGEE CRITERION

7. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to India, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

8. The applicant claimed to fear that [Mr A], a money lender in his village, will kidnap, harm or kill him if he returns to India, due to the applicant’s failure to repay a sizeable loan.

9. Asked about his future conduct if he returns to India, the applicant said that he would most likely go to live in a city, rather than the village. This is unsurprising, given the applicant’s stay in Australia of more than twelve years, his excellent English and his work experience here, including employment with major retailers (although the duration and nature of this work remains unclear). The Tribunal does not accept that the applicant’s preference to live in a city is related to any outstanding debts in his village. The applicant also mentioned that he is now in a relationship with a [Country 2]-born [Country 1] citizen, and he gave the impression that, if this application does not succeed, he will explore other options to remain in Australia with this person.

10. The Tribunal has found that the applicant does not have a large outstanding debt to a village money lender; that the money lender (or his agents) has not made threats of physical violence to the applicant or his family; and that the applicant does not genuinely fear such violence. It finds that there is no real chance of [Mr A] or his agents inflicting serious harm on the applicant, for any reason.

11. In these circumstances, it is unnecessary for the Tribunal to consider whether the essential and significant reason(s) for the feared harm arises from one or more of the Convention grounds. It is also unnecessary for the Tribunal to consider whether State protection is available against [Mr A]’s (now-rejected) threats or potential violence.

12. The applicant has presented no other claims, and none is apparent on the materials before the Tribunal.   

13. For the reasons set out above, the Tribunal does not accept that if the applicant returns to India now or in the foreseeable future that there is a real chance he will face serious harm for any reason arising out of any past indebtedness to a local money lender. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention-related reason, now or in the reasonably foreseeable future, if he returns to India: s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

14. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.

15. The Tribunal takes into account the above findings of fact, the applicant’s circumstances as a whole (including his lengthy stay in Australia to date), and his future conduct. It concludes that there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India.    

16. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Overall conclusion

17. 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).

18. 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).

19. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    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

    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).

    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.

    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.

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

    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.

    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.

    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.

    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.

    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.

    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

    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’).

    ‘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.

    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

    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.