1606199 (Refugee)

[2019] AATA 3865

1606199 (Refugee) [2019] AATA 3865 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606199

COUNTRY OF REFERENCE:                  Stateless

MEMBER:Sean Baker

DATE:21 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 February 2019 at 9:15pm

CATCHWORDS

REFUGEE – protection visa – stateless – Burma/Myanmar – race – Rohingya – fraudulent hand-written Bangladeshi passport – work permit for Country 1 cancelled and no right to return – credible witness – evidence of cousins – decision under review remitted

LEGISLATION

Migration Act 1958, ss 36, 65, 45AA, 438(1)(a), 499
Migration Regulations 1994, Schedule 2 r 2.08F

CASES
Al-Anezi v MIMA (1999) 92 FCR 283
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. [The applicant] claims to be an approximately [age] year old man born in [Maung] Daw, in Arakan (Rakhine) state Burma (Myanmar), and to be a Rohingya Muslim and stateless. He claims that if he returns to his country of former habitual residence, Burma, he will be seriously harmed or killed by the Burmese authorities.

2. 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 applicant applied for the visa on 14 December 2012 and the delegate refused to grant the visa on 27 April 2016.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant gave evidence at the hearing as did his cousin, [Mr A]. The hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The applicant was represented in relation to the review by his registered migration agent and the oral and written submissions have assisted.

5. The issue in this case is whether the applicant is a stateless Rohingya from Burma as claimed, and if so whether he has a well-founded fear of returning to his country of former habitual residence, and if now, whether there is a real risk he will suffer significant harm as a consequence of him being removed from Australia to his receiving country. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

6. The Department file contains a purported certificate under s.438(1)(a). However, in this case, I find that the reasons cited in the certificate as contrary to the public interest are not a sufficient basis for public interest immunity because they do not identify the harm that could be done to the nation or the public service by their disclosure.[1] I find that the certificate is invalid and I discussed the information with the applicant.

   [1] MZAFZ v MIBP [2016] FCA 1081.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. To the Department the applicant provided a statutory declaration dated 4 December 2012. In that he claims to have been born in Arakan on [date], to be an ethnic Rohingya and a Sunni Muslim. He further states:

   ·He grew up in [his] Village, Arakan, his father worked as a fisher and farmer, his mother as a housewife and he was never able to find employment in Burma so he was unemployed when he was there.

   ·He only completed education to [a certain year]. He was attacked and harmed at school.

   ·The authorities would harass and extort him, once they said he had a mobile phone and extorted money from him.

   ·They used to get sick but had no access to doctors or medical services or hospitals.

   ·In around 1989/1990, his father’s fishing farm was confiscated. His father had to do forced labour for the authorities. After this the family had no way to earn a living. His father was forced to go to [Country 1] to find work in around 1991/1992.

   ·In 2007 the applicant and his family went to [Country 1] to join his father. They were able to obtain work permits but not to reside there indefinitely.

   ·He [worked] but when his boss stopped working his work permit was cancelled and he was deported back to Bangladesh as that is how he entered [Country 1].

   ·When he was in Bangladesh he knew he could not return to Burma so he arranged for a smuggler to take him to Australia.

   ·The smuggler arranged his documents. He left Bangladesh and flew to [another country] on a false passport. He went to [Country 2] and boarded a boat to Australia.

   ·He cannot return to Burma or he will be killed or otherwise seriously harmed.

   ·His family is in [Country 1] but he does not have the right to return there.

8. The applicant took part in a number of identity and other interviews with the Department.

9. He provided a number of documents to the Department and a response dated 20 April 2016 to a letter setting out concerns of the delegate. He provided:

   ·Burmese temporary identity cards ('white cards') for himself and his mother

   ·A Burmese drivers licence

   ·A Family photo taken for the family list

   ·A Burmese temporary identity card for his mother

   ·A [Country 1] residential permit for his father

   ·A [Country 1] Correction of Status letter for his father, mother and siblings

   ·A Copy of his father's Bangladeshi passport

   ·A Letter of support from [an organisation]

   ·The applicant also claims that he has held and travelled upon a fraudulently obtained Bangladeshi passport.

10. The applicant appeared at the hearing and I also received evidence from [Mr A], the applicant’s cousin.

11. After the hearing I have been provided with several submissions.

12. The central issue in this case is whether the applicant has established that he is a stateless Rohingya from Burma. For the following reasons I have reached a different view on this issue to the delegate.

    Credibility

13. In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 him 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 her or him. 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, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

14. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

15. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See 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).

16. I have before me further information that was not before the delegate. This information has allowed me to gain a better understanding of the applicant’s situation.

17. This information is the testimony of the applicant’s cousin as well as the provision of information from Post in Bangladesh recording that the authorities had no information on the applicant.

18. I have carefully considered the concerns raised by the delegate. I appreciate that some, but not all, of these concerns remain, but that when considered fairly, the weight of information before me indicates that the applicant is, in fact, a stateless Rohingya from Burma. Importantly, I also do not accept that the counterfactual, that he is a Bangladeshi citizen, can be supported on the information before me.

19. I note firstly that the applicant has given a reasonably consistent explanation of his life. He speaks Rohingya fluently and has been able to describe where he lived in Burma and the situation there in a way consistent with country information available.

20. I will discuss the inconsistencies in his claims which were of concern, but I consider that when looking at the totality of information before me, I consider these inconsistencies comparatively minor, and that some, but not all, can be explained on a fair reading of the applicant’s explanations.

    The applicant’s identity as a Stateless Rohingya

21. The delegate acknowledged that the applicant was able to display basic knowledge of life in Myanmar which is consistent with his claims to be a stateless Rohingya Muslim. I note that the applicant has not lived there since 2007 when he was a young adult. Before me he was able to discuss his life there in some detail. The applicant spoke Rohingya fluently at the hearing. These factors go some way towards indicating that the applicant is, as claimed, a Rohingya from Burma.

22. I have considered the Burmese documentation that the applicant has provided. I note that in relation to the white cards and Burmese motorcycle licence, the Document Examination Unit stated their investigation was inconclusive. I note that the delegate went on to make observations about the appearance of the cards – these observations appear more properly to be the domain of the document examination unit. I note also that the main concern of the delegate was that the cards had physical differences – but the country information does not appear to support a conclusion that white cards were uniform in physical presentation and I note that they were initially an ad hoc response to the removal of NRCs from Rohingya, which had previously been issued to Burmese more generally who had lost their NRCs, and that the cards were issued over a 20 year period before being taken invalidated in 2015,[2] which suggests to me that there may have been considerable variation in their appearance. Whilst these cards have some irregularities, it is entirely possible that this was because of their method of issue. The DEU did not find them fraudulent and whilst I cannot say that they are determinative of the applicant’s stateless Rohingya status, they do tend to support it. The applicant was able to explain the inconsistencies in the Burmese motor bike licence, again, this is not determinative of his identity but it does tend to support it. At the hearing the applicant provided untranslated copies of a family list, border trade card and matriculation certificate. He said that these were for him and his family and that his family had had them in [Country 1].

    [2] DFAT Country Information Report Myanmar, 10 January 2017, 5.44.

23. In relation to the differences in names on many of the documents provided, I consider that there is a clear and sensible explanation for this. As pointed out by the applicant, the Burmese documents are necessarily a translation from Rohingya to Burmese and then to English. Those in [Country 1] are presumably Rohingya to Arabic to English. Additionally, Rohingya will usually have a Rohingya version of their name and a ‘Burmese’ name. I consider that the naming differences can be explained by these factors.

24. I am not a facial recognition specialist so I can place little weight on the family list photo.

25. The applicant has also provided a correction of status letter for his family in [Country 1], and more recently, to me, copies of the residence permits of his brothers and mother in [Country 1], recording their nationality as Myanmar/Barmawi.

26. Whilst the correction of status letter has not been verified, the delegate referred to such letters being issued. Again, whilst not determinative, these documents tend to support the basis for the applicant being found to be a stateless Rohingya.

27. Of most significance is the evidence of the applicant’s cousin at hearing, [Mr A], as well as [Mr A]’s written statement and the two written statements of another of the applicant’s first cousin’s in Australia, [Mr B]. [Mr A] is an Australian citizen and has been in Australia for 9 years. He said he was Rohingya. He said that the applicant was his paternal first cousin and was definitely a Rohingya. He gave details consistent with the applicant’s claims - he was able to provide in significant detail confirmation of the composition of the applicant’s family, and the applicant’s history in Burma and in [Country 1]. In particular he was able to explain that the applicant’s mother [and siblings] had preceded the applicant to [Country 1]. He explained that he had come to Australia [on a temporary visa] and had then sought asylum. [Mr B] explained that he is a Rohingya and the applicant is his first cousins, he explained that he fled Myanmar in 2006 and crossed the border to Bangladesh and obtained a Bangladeshi passport and travelled to Australia on a [temporary] visa. He confirms details of the applicant’s family.

28. As above, I found the oral evidence of [Mr A], and the written statements of him and [Mr B] to be very helpful in confirming the applicant’s claims and his identity. I find their evidence convincing and compelling, noting that their claims have been accepted.

    The effective protection check

29. At the time of making the decision, the delegate did not have access to the response from the Bangladesh post and noted that this made the assessment problematic. I requested this from the Department early in the process but it was never provided to me. However, I was provided by a copy, obtained under FOI, by the applicant’s representative. I raised concerns with them about the applicant’s birthdate, which differs between some documents. The representative noted in a later submission that the effective protection check would have included the applicant’s name and also that of his father, and that the documents with disparate birth dates had been provided to the delegate and presumably would have been referred to in the effective protection check, and that as such it would have been sufficient to locate him. I cannot verify this because the Department did not provide me with the information I requested, but the points the representative makes are all logical and therefore I proceed on the basis that the effective protection check would have contained all the information about the applicant known to the delegate at that time including the applicant’s differing years of birth on different documents as well as the details of his father. This being the case, the response from Post in Bangladesh that the Bangladeshi authorities have no record of the applicant is, I find, significant.

    Bangladesh passports

30. The principal concern of the delegate was with the Bangladesh passport that the applicant said he had travelled on, and the copy of the applicant’s father’s Bangladesh passport, a copy of which the applicant provided to the Department. It has at all times been the applicant’s submission that these were fraudulent documents in the sense that they were not a reflection of the nationality of him and his father. On the face of it, this is a plausible explanation – the most recent DFAT report notes that while the government of Bangladesh introduced ‘machine-readable passports and established a passports database in 2010, DFAT understands that there is still a high prevalence of document fraud in relation to passports.’[3] Other reports concur and amplify this assessment, including a view from Dutch authorities in 2014 that ‘it seems to be very easy to get access to several types of [fraudulent] documents’ in Bangladesh.[4] DFAT also notes that many Rohingya work in Bangladesh having acquired fraudulent identity documents including national identity cards.[5]

    [3] DFAT Country Information Report – Bangladesh, 2 February 2018, 5.27

    [4] Canada: Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015, BGD105263.E, available at: 20 February 2019], also the reports referred to in the delegate’s decision.

    [5]  DFAT Country Information Report – Bangladesh, 2 February 2018, 3.15

31. I note that the applicant’s father held a hand-written passport issued in [2007], (a copy of which is on the file) which is valid for five years and was renewed in 2012, and prior to this, a passport issued in [1997] which appears to have been valid for ten years.

32. I note also that the applicant travelled to [Country 1] in 2007, that Bangladesh passports are typically valid for 10 years initially and then five years and that he was deported/returned to Bangladesh in 2012 within this time, and departed for Australia, again, in 2012. It is therefore plausible and more likely than not that he that he did so on the handwritten passport he obtained in 2007.

33. It is highly relevant that the Bangladesh government introduced machine-readable passports only in 2010. Both the applicant’s father, and the applicant, who travelled to [Country 1] in 2007, would have held hand-written passport. This means that the passports of the applicant’s father, and the applicant, were not machine-readable, would have been easier to produce fraudulently, and to obtain illegitimately. I also note that the applicant’s father’s hand-written passport was renewed in 2012, rather than him being re-issued or having to apply for a machine-readable passport. One of the central stated aims of the ICAO machine- readable passport regime is to provide credible evidence of identity.[6]

    [6]

34. This leads me to find that both the applicant and his father would only ever have travelled on hand-written Bangladesh passports issued prior to 2010, and not the machine-readable passports issued from 2010.

35. The delegate concedes that fraudulently obtained Bangladesh passports are available and used by stateless Rohingya, and indeed, the DFAT report indicates that fraudulent passports are still an issue. However, the delegate found in relation to the applicant’s father that his passport, renewed in [Country 1], would have been scrutinised by the Bangladeshi Embassy and that people have been caught at that Embassy trying to renew fraudulently obtained passports. I could not find information about this in the citations provided. But I note that this may refer to detection of fraudulent machine-readable passport, and may only be a minority of those renewing their passports.

1. The delegate goes on to consider that the applicant, deported to Bangladesh in May 2012, would have had his passport scrutinised and that the date is significant as it indicates he was accepted on the border as Bangladeshi two years after the introduction of machine-readable passports and register of issued passports. But, as discussed above, it seems clear that the applicant would have returned at this time as the holder of his hand-written passport issued in 2007. It would therefore not have been machine-readable, and there is some doubt whether it would have been in the register of issued passports, certainly it would not have been in any register of machine-readable passports. This also applies to my consideration of the delegate’s concern that the applicant passed through a number of countries on the way to Australia.

2. On the issue of his deportation being raised, the applicant responded that he had not been deported but was required to leave [Country 1] after his work permit ceased. This leads the delegate to have concerns with the truthfulness of the applicant’s response. I am not persuaded that an ordinary person understands the fine distinction between being required to leave a country and being deported and so I do not consider that his response is implausible or untruthful, particularly when considered with the below information which supports his claims.

3. I have reviewed the country information cited by the delegate but much of this country information strongly supports the claims of the applicant to have acquired and travelled on a fraudulently obtained Bangladesh passport as did his father and family.

   Findings

4. Having carefully considered the concerns of the delegate, the information before me including the information from the applicant, the evidence of his two cousins in Australia, the documents provided and the country information, I make the following findings.

5. The applicant is, as claimed, a stateless Rohingya from Rakhine state in Burma, as are his family. He has suffered harm and discrimination from the Burmese authorities as he has claimed.

6. The applicant’s father left Burma around 1991/1992 to work in [Country 1] and support the family, the balance of the family departed in 2001-2002 and the applicant and his [brother] departed in 2007.

7. The applicant had his work visa cancelled and departed [Country 1] in 2012, travelled to Bangladesh and shortly after this to [Country 2] from whence he travelled to Australia. 

8. Both the applicant and other members of his family travelled on non-genuine Bangladesh passports, as did his cousin [Mr B]. The applicant is not a Bangladeshi national.

9. I accept therefore that the applicant is stateless and was born and lived much of his life in Burma. This is not the end of the inquiry however. I have proceeded to assess his claims as a stateless person. The applicant was born and spent a large part of his life in Burma/Myanmar. However, he then travelled to [Country 1] and resided there for five years. For the reasons below, I find that the applicant has formerly resided in both Burma/Myanmar and [Country 1]. As noted, he was born and spent his childhood and most of his life in Burma/Myanmar, including schooling and work, and his family lived there until some years before he departed. The applicant has also demonstrated a connection to the Burmese Rohingya community in [Country 1] and in Australia. For all of these reasons I find for these reasons that Burma/Myanmar is a country of former habitual residence.

10. I have considered the applicant’s circumstances in [Country 1], both in considering whether this is his country of former habitual residence, and also, below, whether he has a right to enter and reside there under s.36(3). The applicant lived for a considerable period of his life in [Country 1], worked there and his family resides there.

11. For the purposes of assessing country of former habitual residence, it is generally accepted that a stateless person may have more than one country of former habitual residence.[7] I find that [Country 1] must also be considered a country of former habitual residence for the applicant. (For the reasons below, information before me does not support a conclusion that he has a right to enter and reside in [Country 1], which I will discuss below.)

    [7] Al-Anezi v MIMA (1999) 92 FCR 283 at [22].

12. The question then is whether the applicant would face persecution on return to either country of former habitual residence, Burma/Myanmar or [Country 1].

13. The situation for Rohingya in Burma/Myanmar has declined since the decision. The DFAT report of January 2017 noted that official and societal discrimination against Rohingya in Rakhine State is endemic, that they are undocumented and effectively stateless and face restrictions on freedom of movement, are extorted and harassed, with restrictions to their access to education and healthcare.[8]

    [8] DFAT Country Information Report – Myanmar, 10 January 2017

14. Since the DFAT report there have been clashes in August 2017 which led to hundreds of deaths and forced hundreds of thousands of Rohingya to cross the border into Bangladesh.[9] The ability of Rohingya to relocate from Rakhine State is severely restricted.[10] Australia and other countries have called on Burma/Myanmar not to repatriate Rohingya until there are independent investigations into human rights abuses against Muslims.[11]

    [9] UK Home Office Country Policy and Information Note – Burma: Rohingya, November 2017.

    [10] UK Home Office Country Policy and Information Note – Burma: Rohingya, November 2017.

    [11] Cochrane, L., “Rohingya Muslims should not be repatriated to Myanmar until credible investigation, Julie Bishop says”, ABC Online, 30 April 2018,

15. I find on the information before me that the situation remains extremely dangerous and difficult for Rohingya in Burma/Myanmar. I find that there is a real chance, that is one that is not remote, that were the applicant to be returned to Burma/Myanmar, he would face serious harm including a threat to his life, significant physical harassment or ill-treatment, as well as significant economic hardship or denial of access to basic services that would threaten his capacity to subsist. I find that he would face this harm either from the state or state agents directly, or from Burmese nationals who would have the explicit or implicit backing of the state. I find that that this would be for the essential and significant reasons of his ethnicity as a Rohingya, his imputed nationality, given that the government and Burmese nationals regard him as a Bangladeshi, his religion as a Muslim and his imputed political opinion as a Rohingya who many in Burma/Myanmar consider supportive of the Arakan Rohingya Salvation Army and other Rohingya armed forces. I find that this treatment would be systematic and discriminatory in the sense that it would be targeted and non-random against the applicant as a Rohingya from Rakhine state.

16. I find that one of the ways in which Rohingya are persecuted is through denial of freedom of travel within Burma/Myanmar and denial of documentation to establish nationality or former habitual residence, and that this means the applicant would effectively be unable to relocate within Burma/Myanmar. Given the agent of persecution in this case is the state, or non-state actors acting with the consent and encouragement of the state, I find that the state is unable to protect the applicant against the harm he fears.

17. On the basis of all of the evidence before me I find that the applicant will face a real chance of persecution if he returns to his country of former habitual residence, Burma/Myanmar.

18. It is Australian law that a claimant with more than one country of former habitual residence is not required to satisfy the Convention definition in relation to each such country.  In Al-Anezi v MIMA Lehane J held that

    … a stateless person may have more than one country of former habitual residence … but it does not follow that a stateless person who has had more than one country of former habitual residence is necessarily to be assessed, in relation to a claim for recognition as a refugee, by reference to each of those countries. … A person who has a nationality, who has left the country of nationality owing to persecution for a Convention reason and is, as a result of a fear of such persecution, unwilling to return or is unable to avail himself or herself of the protection of that country, remains a refugee no matter in how many intermediate countries he or she may have resided and however many of them may correctly be described as countries of former habitual residence. It would be surprising if a stateless person who, owing to a well-founded fear of persecution for a Convention reason, had left (was outside) a country of former habitual residence and was unable or, due to such a fear, unwilling to return to that country, ceased to be a refugee merely because of subsequent habitual residence in another country in which he or she had no fear of persecution. [12]

    [12] (1999) 92 FCR 283 at [22].

19. I have found that the applicant faces a real chance of persecution if he returns to one of his countries of former habitual residence. On the basis of the case law I find that I do not need to assess him against [Country 1]. However, I note that were I to do so, he would be unable to return to [Country 1] as a matter of fact, having no valid visa or other right or permission to enter [Country 1], discussed further below.

    Can the applicant return to and reside in [Country 1]?

20. I have assessed the applicant against [Country 1] for the purposes of s.36(3).  The applicant only entered [Country 1] on the basis of a non genuine Bangladeshi passport which he no longer holds. Whilst his family have been recognised as Rohingya/Barmawi by the [Country 1] authorities, the applicant was not included in this process. There is no evidence that the applicant has any currently existing right or permission to enter and reside in [Country 1]. I find therefore that the applicant does not have a right to enter and reside in [Country 1].

21. On the basis of the above findings, I find that applicant one has a real chance of being persecuted if he returns to his country of former habitual residence, Burma/Myanmar, now or in the reasonably foreseeable future.

22. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

23. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Sean Baker
    Member

    
    

    ATTACHMENT 1 – RELEVANT LAW

24. 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.

25. 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).

26. 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.

27. 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’).

28. 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.