1611134 (Refugee)

1611134 (Refugee) [2017] AATA 680 (24 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611134
COUNTRY OF REFERENCE:                  India
MEMBER:Louise Nicholls
DATE:24 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 April 2017 at 5:59pm

CATCHWORDS
Refugee – Protection visa – India – Federal Circuit Court remittal – Particular social group – Inter-caste marriage – Effective protection – Relocation

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 438, 499
Migration Regulations 1994, Schedule 2

CASES
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

The applicant claims to be a citizen of India and is [age] years old. He claims he was born in a small village in the Punjab State, India. [In] March 2014 he arrived in Australia travelling on an Indian passport with an Australian [temporary] visa.
The applicant applied for a protection visa [in] April 2014. He provided a number of documents with his application, including;
·Copy of the applicant’s Indian passport.
·Copy of First Information Report - Punjab Province (2013)
·Complaint made to Punjab Police- [City 1].(April 2013)
·Reports from [Country 1] police in relation to a series of complaints April to June 2013.
·Copy of a letter from [a legal firm in Country 1] and a copy of a note to [Ms A] from the service manager at a woman’s support service in [Country 1]. (2013)
·Letters from [Country 1 local] City Council to [Ms A] relating to support services for domestic violence. (2013)
·Statements made by [Ms A] and [Relative A].(2013)
·Draft divorce affidavit of [Relative A].
·Letter “To Whom It May Concern” from [a Punjabi agency].
·Punjabi language press reports (untranslated).
·Applicant’s [Bank] statement.
·Letter from [an insurance company] to the applicant.
·Penalty reminder notice from [a state agency].
The applicant attended an interview at the Department of Immigration [in] November 2014.
The delegate of the Minister for Immigration refused the protection visa because the delegate was not satisfied that the applicant met the requirements for a protection visa.
This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2014 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant provided a further copy of the First Information Report and his Indian passport to the Tribunal.
The Tribunal, differently constituted, affirmed the delegate’s decision on 1 April 2016. The applicant is now before the Tribunal because [in] July 2016, the Federal Circuit Court, by consent, quashed the decision of the Tribunal and remitted the matter for reconsideration according to law.
The Court noted that the matter was remitted because the Tribunal failed to consider a claim, that is, that the applicant would be at risk of harm as a member of his [Relative A’s] family because he helped his [Relative A and Ms A] get married.
The applicant appeared before the current Tribunal on 14 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal explained the reasons for the remittal and reconsideration and indicated that evidence given to the previous Tribunal could be taken into account in the review. The Tribunal took further evidence from the applicant on his background, his claims and his current circumstances.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The relevant law is set out in Attachment A.
The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection.
A preliminary issue which arises in this review is whether a certificate purporting to restrict disclosure of some Departmental documents is valid.
Non-disclosure certificate; s 438 of the Act.
The Tribunal has received a Departmental [file] which contains the protection visa application and associated documents. The delegate has placed a non-disclosure certificate on the Department’s file pursuant to s.438(1)[1].
[1] DIBD File [number] f.123
The Tribunal has considered the material identified in the certificate and considers that the certificate is not a valid certificate. The certificate states that the disclosure of the information would be contrary to public interest on the grounds it contains information relating to an “internal working document and business affairs”.
·The document at folio 64 is a Protection Visa Application Validity Checklist which set outs the applicant’s name and whether he has provided photographs, a valid address, a signature and that he has made claims for protection. The form also notes he has provided personal identifiers.
·The document at folio 95 is a note relating to a telephone conversation with the applicant where his new address was confirmed and interview time and date details confirmed.
·The document at folio 109 is an earlier Disclosure Decision Checklist form ([dated in] December 2014) noting that there are no non-disclosure certificates or restricted material on the file.
·The subject documents in folios 117 to 122 are; a letter from the Tribunal to the Department advising the Department that a decision has been made, a copy of subsequent Consent Orders made by the Federal Circuit Court [in] July 2016, a summary of the details of the decision and the court order and a memo to the Tribunal advising that reconsideration had been ordered. These documents are known to the applicant as he initiated the application for judicial review and he is aware that the decision was remitted.
In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue.
In MZAFZ v MIBP,[2] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[3]
[2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
The Tribunal considers that the certificate on file [number] is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios “contain information relating to an internal working document and business affairs” does not properly identify a basis for public interest immunity. There is no suggestion that the documents would harm the nation or public service by disclosure of the material.
There is no material in any of these documents which is relevant to the review and there is no information which is adverse to the applicant or that supports his application.
Accordingly the Tribunal has not disclosed the existence of the certificate as it finds the certificate is not valid and the identified documents are not relevant to the review.
What is the country of reference?
The applicant claims he was born in Punjab State, India and is a citizen of India. He provided a copy of his Indian passport which was issued [in] 2005. He has consistently claimed that he is of Indian nationality and at the hearing spoke Punjabi fluently and was familiar with the geography and culture of Punjab State.
Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of India and that India is the receiving country for the purposes of s.36(2)(aa).
What are the applicants’ claims?
The applicant’s claims are set out in his protection visa, further discussed and expanded upon in the delegate’s interview [in] November 2014 and in claims made in his oral evidence at the Tribunal hearings.
Essentially, the applicant claims that he faces serious harm in India because he assisted his [Relative A], [named] to marry his current wife [Ms A] against the wishes of her family. After the parties married her family made threats against them and they moved to [Country 1] where they now reside permanently.
The applicant claims that he fears that if he returns to India, [Ms A’s] family will try to harm him and other family members by implicating them in false cases. He claimed they have contacts in the Indian government and police and will misuse their contacts to harm the applicant.
Background
At the Tribunal hearing the applicant stated he is [age] years of age and was born in a small village in [Punjab] State. The city to which the village is nearest is [name].
His father has passed away and his mother is living in the family home in [his home village]. She is a retired [occupation]. The applicant has [a Relative A] who is married and living in [Country 1]. The applicant and [a relative] send money to their [family for] financial support.
The applicant attended school in the local area and went on to become [two specified occupations]. He did freelance work in Punjabi [businesses]. He speaks Punjabi, Hindi and English.
He married [in] 2012 and he and his wife have [an age] year old [child]. He claims the parties divorced by mutual consent and his wife and [child] are living in [Country 2] although he has never seen or had contact with his [child].
The applicant left India in 2008/2009 and visited [Country 2] for about [time period] before returning to India. He appears to have travelled frequently from 2009 to 2014. He arrived in Australia in March 2014.
He and his wife travelled to [Country 2] in 2012 on [temporary] visas. He worked in [Country 2] in his own [company] for over a year. He explained that he sold [products]. He claimed that the business was operating in a reasonable manner “not too bad, not too good”. He handed his business over to a friend and came to Australia on a [temporary] visa in March 2014. After he had arrived in Australia he called his friend and told him he was not returning and he understood that his friend closed the business after 3 months.
At the time he came to Australia he and his wife had a dispute and she returned to India for a few months however he later found out she had returned to [Country 2]. He was not aware of her migration status in [Country 2] as he has had no contact with her for the last 2 years. He claimed his mother organised the mutually agreed divorce using a power of attorney, however he did not provide any documents to confirm this evidence.
The applicant agreed, and entries in his passport showed, that he had travelled extensively in Asia including making numerous trips to [various countries] from 2008 to 2014.
Assessment of claims
In his protection visa application the applicant stated that he [has specified relatives]. His [Relative A] is married but [Ms A’s] family is against the marriage due to a religious (intercaste) difference. The applicant stated he helped both of them in their marriage but after their marriage [Ms A’s] family became very angry and tried to harm them. In the meantime the applicant’s [Relative A] and his wife went to [Country 1].
He claimed that [Ms A] is from a very high profile family and they have good contacts in the police department and the government bodies and they can misuse their power to harm the applicant and his family.
They are upset with the applicant because he helped their daughter marry the applicant’s [Relative A] because it was an inter caste marriage and they do not accept that marriage. Even though his [Relative A] and wife now have a child the family do not want to settle everything. Because their daughter is out of reach the applicant is the only person for them to harm.
After his [Relative A’s] marriage he married but [Ms A’s] family tried to harm his marriage and started creating problems for him and his family. They cannot harm his [Relative A] and his wife because they are both in [Country 1].
If he returns to India he fears [Ms A’s] family will harm him and his family by implicating the family false police cases or something like that. He claimed they are trying to trace him and if he goes back they will do something very dangerous. They have strong contacts in the Indian government and their background is political and they also have contacts in the police and are trying to make a false case against him and his family.
At the interview with the delegate he claimed that [Ms A’s] family are from a higher caste than his [Relative A] and were unhappy with the inter caste marriage. His [Relative A] and [Ms A] have gone to live in [Country 1] and he thinks they have been granted refugee status. He claims that [Ms A’s] family are looking to harm the applicant’s family in India have implicated friends of the applicant and his [Relative A] with false charges.
The applicant was running a business in [Country 2] but claimed he left because [Ms A’s] family were powerful and capable of finding and harming him there. He and his wife are now separated and she is now living with her parents in India.
At the first Tribunal hearing (differently constituted) the applicant claimed that [Ms A’s] father was a distant relative of [an important official], however, he did not repeat this claim at the second Tribunal hearing. Otherwise the claims made generally consistent to those made at the second hearing held by the Tribunal.
At the second Tribunal hearing the applicant stated he arrived in Australia [in] March 2014 and applied for protection [in] April 2014. He stated that he completed the application in his own words and typed the application himself.
He came to Australia and applied for protection because he feared serious harm because of his [Relative A’s] marriage. He stated that his [Relative A] and [Ms A] met on [online] but could not remember when they met [online] or when they met face-to-face. He thinks they met around June 2011 but he was not present at the time but his [Relative A] told him about the meeting.
Prior to the marriage [Ms A] was living in [Country 1] to complete her [qualifications] and following their online contact, his [Relative A] and [Ms A] decided to get married. He claimed [Ms A] returned to India without the knowledge of her family members to get married.
The Tribunal asked him why [Ms A’s] family had a strong objection to the marriage and he stated that his [Relative A] was from a higher caste than [Ms A] and the family objected to the inter caste marriage. The Tribunal put it to him that the country information indicated that there is no caste in Sikhism and that whilst there may some cultural belief in caste that the caste system is not as strong in Punjab State as in traditional Hindu states[4]. He stated that despite there not being any castes in the Sikh religion, in reality the caste system affected Sikhs.
[4] DFAT Report on Punjab State 7 December 2016 p.3.40
The applicant claimed that when [Ms A] returned from [Country 1] she travelled to New Delhi and then caught a bus to [his home village] which was the [Relative A’s] family home. Her parents lived in [City 1] and she had a [sibling] living in [Country 1].
He claimed that they went through a Sikh marriage ceremony in [his home village] and had a small wedding party at a nearby [venue]. The applicant’s [Relative A’s] family and friends attended the wedding but there were no relative from [Ms A’s] family in attendance. [Ms A] returned to [Country 1] and his [Relative A] joined her there. She later became pregnant and friends of her family who saw the couple in [Country 1] told her parents who then found out she was married.
They obtained the marriage registration documents and were very unhappy with the marriage. [Ms A’s] [sibling] and father went to [Country 1] to force her to return to India with them but they could not do anything to the couple. His [Relative A] and [Ms A] are living and working in [Country 1]. They also have a child aged [age] years.
[Ms A’s] family members were upset because they claimed that their daughter had been brainwashed into the marriage and they had not arranged the marriage. However, after 2-3 months in [Country 1] they returned to India.
The applicant married his own wife in 2012 in India but claimed they did so secretly and without much notice.
The applicant claimed that he assisted his [Relative A] in the marriage and her family are upset with him. He claimed that police have visited his family home and [Ms A’s] family members have threatened to kill him because he was involved in the marriage.
He claimed that [Ms A’s] father was an [official position] but could not give an explanation of the role of [that position]. He claimed it was part of the government of Punjab. He claimed that he could have him killed and no one would ask any questions.
The Tribunal put it to the applicant that it could understand why [Ms A’s] family might want to harm his [Relative A] but there was no plausible reason why they would seek to harm the applicant given he has been outside India since 2012 and was not involved in the relationship. The evidence appears to indicate that [Ms A’s] father went to [Country 1] to try to pressure his daughter to return to India in 2013. She sought the assistance of police and support organisations to resist her father and he returned to India after a few months.
There did not appear to be any plausible reason why [Ms A’s] family would try to harm the applicant. Further the applicant returned to India in 2013 and nothing happened to him. He stated he went to see his mother whom he had not seen for 4 to 5 years and did not stay in India for a long period of time during the visit.
He stated his Indian passport has now expired and he was informed that he could not apply for a new passport if he had applied for protection in Australia. He stated that this was one of the questions on the application form. The Tribunal put it to him that there were no restrictions on obtaining a travel document to return to India and there was no country information suggesting that the Indian government sought information about whether people had applied for asylum overseas.
The Tribunal put it to the applicant that if he returned to India he did not have to return to live in Punjab Province. There were many Sikh communities throughout India and in particular a large Sikh community in New Delhi. He claimed that [Ms A’s] father had links with Sikh communities. He claimed that there were many honour killings and criminal activity in New Delhi. The Tribunal put it to him that honour killings involving couples were uncommon. [5]
[5] DFAT Report on Punjab State 7 December 2016 p.4.6
The Tribunal noted that the applicant was young, well-educated, with good language skills. He could obtain employment in New Delhi or other large cities where there was greater social freedoms. He claimed that [Ms A’s] family would find him if he lived on his own without his family. Further there was a high crime rate in New Delhi and he could face harm.
The Tribunal put it to him that he was living in [Australia] and working as [an occupation] and shared a home with two other persons. The Tribunal put it to him that he had adapted to living in Australia without a family network. He claimed he had a circle of friends. He claimed if he returned to India and contacted family and friends he will be discovered. However, he also stated he had deleted his [social media] account about 10 years ago.

The Tribunal accepts that the applicant is from a Sikh family in the Punjab Province. It accepts from 2008 he worked as [an occupation] in India but has since 2008/2009 travelled frequently in Asia. From 2012 he lived outside India but returned to visit Punjab Province, including a visit in 2012 to get married and in 2013 to visit his mother.
The applicant married in June 2012 and claims that he is now separated and divorced. The applicant did not provide any documents to verify that he is divorced. However, whilst the Tribunal has some doubts about his evidence as to his marital status, it accepts for the purpose of this decision, that he is divorced.
The Tribunal accepts the applicant obtained a [temporary] visa for [Country 2] in 2012 and he and his wife went to live [there]. He later left [Country 2] for Australia in March 2014. The applicant’s wife returned to India but is now living in [Country 2] with the applicant’s [child]. The applicant could not explain the nature of her current visa status in [Country 2].
The Tribunal accepts that the applicant’s [Relative A] married a girl from another Sikh family in June 2011 without the permission of her parents and that her parents were upset with the marriage. Despite their objections to the marriage the applicant’s [Relative A] and [Ms A] continued in their marriage and now live in [Country 1] with their [child].
The applicant has provided a number of documents which confirms this evidence.
[Ms A’s] mother lodged a First Information Report dated [in] June 2013 which named the applicant’s [Relative A], [Ms A] and three unrelated friends who were alleged to have been involved in the marriage ceremony in India. The complaint was that the applicant’s [Relative A] had conspired to gain entry to [Country 1] by forming [an online] relationship with his wife and the parties had arranged a fake marriage, that the applicant’s [Relative A] obtained entry to [Country 1] on the basis of this document and that he had gained a financial advantage due to the marriage.
The Tribunal accepts that [Ms A’s] family lodged this complaint; however, the applicant was not mentioned in the document as being involved in the marriage.
There are also a series of complaint records made by the applicant’s [Relative A, named] and his wife [Ms A] from February 2013 to June 2013 complaining to the [Country 1] Police about pressure placed on [Ms A] to leave her husband, [and] her child and return to her family. [Ms A’s] [Sibling] lives in [city in Country 1] and is also said to be applying pressure on the couple.
There are complaint records made by [Relative A] and [Ms A] relayed to the Police commissioner in [City 1], India in April 2013 asking the police to take action against [Ms A’s] parents in India. These complaints outlined the actions taken by [Ms A’s] parents to force the couple to separate and to [abandon] their child.
There are also various letters from solicitors and social organisations which outlines advice given to the couple to assist them in their difficulties with the applicant [Relative A]’s in laws. These difficulties appear to take place in the early half of 2013.
There is also a draft divorce document which was not completed and a letter confirming the couple’s marriage in India in June 2011.
These documents indicate, and the Tribunal accepts, that in 2013 the applicant’s [Relative A] and [Ms A] were subjected to pressure from her family to separate and divorce. It accepts that [Ms A’s] [sibling] and father tried to force her to separate but that she and the applicant’s [Relative A] used the resources of the [Country 1] police and legal system to resist these pressures.
Some of the documents refer to some pressure being place on the applicant’s mother and the applicant [Relative A’s] friends; however, there is no evidence that after 2013 further attempts were made to place pressure on the couple or the applicant’s mother.
The Tribunal does not accept that the applicant had any involvement in his [Relative A’s] relationship or wedding. His [Relative A] and [Ms A] met [online] and continued their relationship online; his [Relative A] was in India and [Ms A] in [Country 1] at the time of commencement of their relationship. The applicant could not give any detailed information about when the parties first had contact and he did not have any familiarity with the circumstances of the inception of the relationship. His [Relative A] and [Ms A] married in 2011 and moved to [Country 1] where they now live with their [child].
The FIR lodged by [Ms A’s] parents indicates that they believe that the wedding was arranged and facilitated by the couple and friends of the applicant’s [Relative A]. The applicant is not named in the FIR. The Tribunal does not accept he has been threatened by [Ms A’s] family or that they perceive he had any involvement. He has not lived in India since 2012 although he has visited despite his claims to fear harm in India for reasons of his [Relative A’s] marriage.
The applicant claimed that [Ms A’s] family had contacts in government and police, however, when questioned he stated that [Ms A’s] father was an [official position] but had no knowledge of the nature of this occupation or his role. There is no other evidence suggesting that her family had high level connections to government or police and the Tribunal does not accept this claim. The documents indicate that the couple made vigorous complaints to the police in [City 1] in 2013 and the Tribunal consider this conduct is not consistent with the claim of that the applicant’s [Relative A] feared the “high level” contacts of [Ms A’s] family.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above, the Tribunal does not accept there is a real chance that the applicant will face harm for reasons membership of a particular social group or religion if he returns to India now or in the foreseeable future.
For reasons set out above the Tribunal does not accept that the applicant was involved in arranging or facilitating the marriage of his [Relative A] and [Ms A] in June 2011 and does not accept [Ms A’s] family have a perception that he was involved in the marriage.
The Tribunal does not accept that he has been threatened by [Ms A’s] family. The applicant did not provide any satisfactory oral evidence or documentary evidence indicating that he has been threatened or is at risk of serious harm from [Ms A’s] family members if he returns to India in the foreseeable future.
The Tribunal does not accept there is any plausible reason why [Ms A’s] family would seek to harm him in the future and the Tribunal notes that whilst his family and [Ms A’s] family both live in Punjab State their homes are not in the same locality. The applicant’s mother lives in [his home village] and [Ms A’s] family live in [City 1].
Accordingly the Tribunal does not accept the applicant faces a real chance of serious harm if he returns to India now or in the foreseeable future for reasons of his membership of his [Relative A’s] family. It also does not accept he faces harm for reasons of his claimed involvement in his [Relative A’s] inter caste marriage.
At the hearing the Tribunal discussed evidence relating to possible relocation elsewhere in India if the applicant did not wish to return to Punjab Province, however, it is not necessary to make any finding on the issue of the reasonableness of relocation as the Tribunal has found that there is no real chance that the applicant will face serious harm if he returns to India.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, that 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.
For reasons set out above the Tribunal does not accept that the applicant faces a risk of serious harm if he returns to India. The applicant left India legally and had a [temporary] visa for Australia and there is no evidence he is alleged to have committed any criminal offences in India. He claims that friends have been subjected to a false complaint in 2013, however, it appears that the complaint arose from [Ms A’s] family’s concerns about the circumstances of the marriage. There is no evidence that the applicant has been implicated in any complaints about the nature of the marriage and the Tribunal does not accept he faces any risk of false prosecution.
Having considered the applicant's claims, the Tribunal finds that the applicant does not meet the criteria for complementary protection criteria. Taking into account the Tribunal’s findings of fact it is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to India now or in the reasonably foreseeable future.
Conclusion
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).
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).
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.
Louise Nicholls
Senior Member 24 April 2017

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.

100. 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
101. 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’).
102. ‘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.
103. 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
104. 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.

[2017] AATA 680

24 April 2017

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