1621213 (Refugee)

1621213 (Refugee) [2017] AATA 360 (17 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621213
COUNTRY OF REFERENCE:                  New Zealand
MEMBER:Giles Short
DATE:17 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 February 2017 at 2:34pm

CATCHWORDS
Refugee – Protection visa – New Zealand – No Convention reason – Criminal gang members – Forced recruitment – Victim of serious assault – Gang violence – Kidnapping – Police informant – Access to state protection – Health services

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

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
INTRODUCTION

[The applicant] is a citizen of New Zealand. He is aged in his [age range]. He became involved with gangs from an early age in New Zealand and he has a lengthy criminal record, having been in and out of gaol between [specified year] and [year]. He was the victim of a serious assault [in] November 2005 and he came to Australia in March 2006. His mother and all his [siblings] live in Australia and he has [number of children] here as well as [number] grandchildren. He has worked in Australia as [two occupations] in [industry 1] but in 2015 he was sentenced to a term of imprisonment in Australia. According to the decision under review (a copy of which he provided along with his application for review) his [temporary] visa ( a visa granted to [a category of applicants]) was cancelled [in] June 2016. He applied for revocation of the cancellation but [in] September 2016 a delegate of the Minister for Immigration decided not to revoke the cancellation. [In] October 2016 [the applicant] applied to the General Division of the Tribunal for review of that decision and [in] November 2016 he applied for a protection visa.
[The applicant’s] application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to the Migration & Refugee Division of the Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. In accordance with Ministerial Direction No. 56, made under section 499 of the Migration Act 1958, I have taken the policy guidelines prepared by the Department of Immigration into account to the extent that they are relevant. I note that the Department of Foreign Affairs and Trade has not prepared any country information assessment expressly for protection status determination purposes in relation to New Zealand. The issues in this review are whether [the applicant] is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is [the applicant] a refugee?
[The applicant’s] claims
It is apparent that [the applicant] filled out his application for a protection visa himself and his answers to various questions on the form are incomplete. He said in answer to question 86 on Part C of the application form that he had been found guilty or convicted of a crime and that he also had criminal charges pending against him but he provided no details. He said that he had come to Australia in 2006 after getting out of hospital because he had had no one in New Zealand and all his family members were in Australia. He said that if he returned to New Zealand he would be killed by members of motorcycle gangs or he would end up killing them and he would be imprisoned for life. He mentioned the [Gang 1] motorcycle gang in particular. He said that he had been kidnapped by members of a motorcycle gang and tortured for [number] nights and that he had been shot at a couple of times.
In a letter to [a government agency] dated [in] September 2016 which he produced along with his application [the applicant] said that in 2005 he had had a shootout in New Zealand with a motorcycle gang. He said that after a couple of weeks they had kidnapped him for [number] days. He said that they had used weapons including a softball bat and a hammer. He said that he had walked home. He said that because he had retaliated and had smashed up their club house they had stabbed him with a machete. He said that he had suffered an injury to his head, he had been stabbed in his side and they had hit him with a hammer, breaking his [body part]. He said that he had been in hospital for a week and his family from Australia had come to New Zealand to stay with him for a month. He said that his mother had asked him to move to Australia. He said that he had been on parole for doing [crime 1].
[The applicant] also produced a report prepared by the [police agency 1] in relation to a serious assault on him [in] November 2005. According to the report he was at his home in [Suburb 1] in Auckland together with his then girlfriend, [Ms A], and his father, when two to three cars carrying three to four persons arrived at the address. [The applicant] spoke to these persons in [Language 1] in a fashion which indicated to [Ms A] that he knew them. The men suddenly set upon him, striking him on the head twice with a weapon described as a mallet or sledgehammer and stabbing him at least once in the abdomen with a machete. [The applicant] suffered a [fracture and cuts]. He refused to identify his assailants and told the police that he did not wish to make a complaint in relation to the assault.
[The applicant] produced to the Tribunal a copy of the decision of the delegate not to revoke the cancellation of his [temporary] visa. That decision indicated that [the applicant] had a lengthy criminal history in New Zealand, having appeared in court some [number] times between [specified year] and [year] and having received [number] convictions, including for [various convictions]. His most recent convictions were for [conviction] in [specified year] and [year] for which he was sentenced to [term] imprisonment. The delegate noted that [the applicant] had said that he had been a gang member when he had been a young man in New Zealand and that he had himself been shot at and had received various knife and machete injuries.
The delegate noted that [the applicant] had first appeared in court in Australia in July 2009 for [one charge] and for a [different charge] in November 2009 and that on neither occasion had a conviction been recorded. In 2014 he was fined for [two further charges] but once again no conviction was recorded. In 2015 he was convicted of [two charges] and sentenced to a total of [term] imprisonment. He was in prison at the time his visa was cancelled [in] June 2016. The delegate noted that in sentencing [the applicant] the magistrate had referred to [the applicant] standing over people, threatening them and threatening the police when they had come to arrest him at his home. The delegate recorded that [the applicant] had said that he had left New Zealand in 2006 because of pressure from local gangs to continue criminal activities, that he was afraid to return in case they were still out to get him and that he believed that his life would be in danger if he returned to New Zealand.
In a letter dated 16 December 2016 [the applicant] said that he was applying for a protection visa because of past gang violence and he referred again to the fact that he had been seriously assaulted in 2005. He said that the New Zealand police did not have nearly enough resources to help him and that the gang members who had assaulted him outnumbered the police. He said that he would be attacked again and possibly killed if he returned to New Zealand and he said that his ex-girlfriend who had been at the house when he had been assaulted had remained in Australia because she had feared the imminent threat of violence in New Zealand. [The applicant] also produced a full copy of the report prepared by the [police agency 1] in relation to the assault on him [in] November 2005, a photograph of him in hospital and an ‘Event Chronology’ in relation to the incident.
[The applicant] also produced a brief ‘Summary of Psychological Treatment’ dated [in] December 2016 prepared by a counsellor who had seen him between [November] and [December] 2016 while he had been at [his present location]. She said that his reported symptoms were consistent with [condition 1] arising from the assault in New Zealand in 2005 and being stabbed and beaten up in prisons in Australia. She said that he reported persistent [conditions relating to] being forcibly returned to New Zealand and that he would benefit from receiving ongoing counselling support. [The applicant] also produced letters of support from family members, friends, someone who had once employed him as [a different occupation] and one of his former supervisors at work. His mother said in one of her letters, dated [in] August 2016, that if he were deported to New Zealand he would have no family support and it would lead to him being homeless and having depression. [The applicant] also produced documents indicating that he had [suffered a serious injury] when playing [a sport] [in his local area] [in] November 2016.
On 23 January 2017 [the applicant] produced to the Tribunal an email message of that date from his [Relative A, named], who said that while she had been living in New Zealand her family had heard from [the applicant’s] father and his ex-girlfriend that [the applicant] had been badly beaten up and stabbed by gangs who had tried to kidnap him. She said that an attempt had been made to get him into the boot of a car but because of his quick thinking he had been able to escape. She said that she and her family had visited him in hospital. She said that the gangs had also visited her family asking questions about [the applicant] and that they had later found out through neighbours that ‘they were the ones involved and wanted to finish what they started’. She said that she and her family did not want [the applicant] to return to New Zealand because they had a feeling that the gangs might still be looking for him and they were really concerned that he would be homeless if he returned.
[The applicant] also produced to the Tribunal a letter from [Ms A] who said that she had moved to Australia because her family had been concerned for her safety following the incident [in] November 2005 which she had witnessed. She said that within the three months after [the applicant] had got out of hospital he had been attacked three times in public and that after hearing this she had urged him to move to Australia to start a new life and to get away from the danger of being affiliated with gangs. She said that even when she had visited New Zealand in the last few years she had been approached by random men whom she did not know asking about [the applicant] and that she believed that these were gang members who were still after him. She said that she feared that he would be killed if he were to return to New Zealand.
Discussion of the issue
At the hearing before me I referred to [the applicant’s] evidence that he had been a gang member when he had been a young man in New Zealand. He said that when he had been young it had all started with a street gang, [Gang B]. He said that this had been when he had been in intermediate school and then when he had been in high school they had formed the [Gang B] there as well. He said that after his mother had left New Zealand to come to Australia he had started putting his life into the streets. He confirmed that he had been a member of the [Gang B]. He said that from a young age pretty much everyone had known him as a hit man, [and for other habits]. He confirmed that he had first gone to prison in [year] and he said that he had then been in and out of prison until [year]. He said that in prison he had met higher ranking members of motorcycle gangs and he had also been a hit man in gaol as well. He said that by ‘hit man’ he meant that he had been a standover man, not someone who killed people. He said when he had been in gaol a lot of the gangs - the [Gang 1], [and other gang names] - had wanted to recruit him but he had known how these gangs were run and he had preferred to work on his own. He confirmed that he had worked for these gangs but he had not joined any of them as a ‘patched’ member. He said that he had been known as a standover man or a hit man both in gaol and outside, in the community.
[The applicant] confirmed that his last [few] prison terms in New Zealand had been for [crime 1] and that this had been something which he had done as part of a gang, the [Gang 1]. He said that when he had been released in [specified year] after doing his time for these [crimes] the [Gang 1] had wanted the money which had been agreed but he had had no money. He said that the money had been spent on lawyers and all that. He said that the first incident which had happened had been the kidnapping when members of the [Gang 1] had taken him in a car to [a named suburb] and had held him in a garage for [number] days. He said that they had been trying to intimidate him. He said that they had tied him up and for [specified time] they had punched him and battered him, demanding to know where the money was. He said that they had not been able to get anything out of him so on the last night they had dumped him in [a location] and he had walked home that night.
[The applicant] said that the second incident had been the shootout to which he had referred. He said that he had been going for a run in [a local street near] where he had lived at the time, when [number] gang members had driven past him. He said that he had recognised the car - a [colour and car brand] - and he had kept running. He said that the car had pulled up across the road from him and shots had been fired at him. He said that he had run through the park and in this way had run back home. He said that the third incident had been a month later, when they had come to his house. He said that this had all been about the same thing, money and control. He said that he had done [a particular job] in the past for them and he had done kidnapping in the past with them. He said that his understanding was that they had been disappointed that he had wanted nothing to do with them.
[The applicant] said that they had come to his house because he had had a ‘[name] shop’, meaning that he had had a [drug type] shop, and he had had a ‘[different name] shop’ meaning that he had had a [different drug type] shop. He said that this had been at his house in [street name]. He said that they had wanted him to join them but he had had no intention of joining them because he had known how these gangs were run. He said that two [Ethnicity 1] fellows had come and had knocked at his door. He said that he had known them because he had been selling them both [these two dug types]. He said that he had thought this had just been a friendly conversation and he had not had a weapon on him. He said that they had come to the back door and he had talked to them in [Language 1].
[The applicant] said that they had told him to come outside. He said that he had had a bench with weights and a gym set in his garage and a lot of the guys from the community had come to do weights and to hang out with him. He said that when he had walked out he had seen a [different colour and car brand] and the boot had been open. He said that the two [Ethnicity 1] guys had said that he needed to go with them. He said that the man who had sent these fellows had been in [a named prison] with him in [year]. He said that this man had been a patched member of the [Gang 1] and his understanding was that he still was. He said that this man had approached the [Ethnicity 2] [Gang B] in the prison in an attempt to recruit them to the [Gang 1] but the [Ethnicity 2] [Gang B] had refused. He said that this man had not liked him from this time and they had had a few run-ins. He said that after this man had been released from prison he had started coming to see him.
[The applicant] said that every person in each area of Auckland and indeed all of New Zealand had to pay ‘rent’ to the bikies. He said that this man had come to see him and had told him that they wanted him to pay ‘rent’ to them but he had refused. He said that this man had come to his house on another occasion and had taken drugs and cash from someone who had worked for him. [The applicant] said that after this he had gone to see this man a couple of times at this man’s home in [Suburb 2] but he had not been at home. He said that eventually he had met up with this man and had sat down with him but it had not gone well. He said that he had told this man that if this man did this again he would kick his head in. He said that a month later this man had sent these [number] gang members including the two [Ethnicity 1] fellows whom he had already mentioned to his house. He said that after they had told him to get in the car he had attacked them and they had attacked him using machetes, sledgehammers and hammers. He said that he had not known when he had attacked them that the three other gang members had been there as well. He said that he did not know if their intention had been to kill him there or to take him somewhere and kill him but luckily for him he had attacked them.
[The applicant] referred to the hospital records of his injuries listed in a document which he had previously given to the Tribunal (at folio 272 of the Tribunal’s file 1621213): [description of specific injuries and cuts]. He also referred to the photograph he had produced showing him in hospital (folio 95 of the Tribunal’s file) and to the police report and in particular to the description of his attackers which had been provided by his ex-girlfriend, [Ms A] (see folio 97 of the Tribunal’s file). He referred to the letter which she had written (folio 247 of the Tribunal’s file) and he also referred to the letter from his [Relative A] (folio 243 of the Tribunal’s file). He said that she had lived in [a location] near where these gang members lived in [Suburb 2].
[The applicant] said that he was still dealing with what had happened in this attack even now and it was pretty stressful for him being in [his present location] waiting for an answer in relation to his application for a protection visa with his past back in New Zealand. He said that since he had been in [his present location] he had not been getting much sleep facing his own demons and not knowing what would be the outcome if he went back to New Zealand. He said that these gangs operated throughout New Zealand and he said that he had been involved with them in [City], for example. He said that when he had first come here in 2006 his friends in New Zealand had labelled him as a police informant or a snitch. He said that this was the rumour back in New Zealand. He said that they had been asking how he had got to Australia with his criminal record. He said that he had stopped talking to these people after he had come here in 2006 and he could not imagine himself going back to New Zealand because he knew what the outcome would be.

[The applicant] said that his father had been a drunk and had been abusive towards his mother. He said that sometimes his father had hit the children for no reason. He said that his mother had left for Australia with his [siblings] to get away from his father. He said that only he had remained behind with his father and when his father had started hitting him he had run away to the streets. He said that when he had been aged [age] he had started hanging out with the young kids around [Suburb 1]. He said that they had become involved in crime to survive: he had started ‘door-stepping’, ‘clotheslining’, breaking into garages and robbing shops. He said that it had got worse and worse until he had first gone to gaol in [year]. He said that he had already had his older [child] by that time and then he had had [another child]. He said that during those times he had been in and out of gaol.
[The applicant] said that he had been well-known in gaol as ‘[name]’. He had done smash and grabs, burglaries and pretty much everything for the gangs. He said that to this day there was a threat to him from these gangs. He referred to the fact that his ex-girlfriend, [Ms A], had also left New Zealand following the attack on him which she had witnessed and he said that they had lived together with his sister in Melbourne until they had broken up. He referred to her evidence in her letter that when she had subsequently visited New Zealand men had approached her asking where he was. He said that she had told them that he was in Australia and they had told her that they would be waiting for him when he came back to New Zealand. He said that his [Relative A] who had come to Australian in 2012 had been approached as well because people had known that they were [related].
[The applicant] said that he knew that he had done a lot of bad things in the past but he was not the same person any more. He said that he had been in Australia since 2006, he had been a responsible man and he had been working here. He said that he had never worked in New Zealand: all he had done had been crime and work for the gangs. He said that he had not only worked for the [Gang 1]: he had also worked for [a named person] from [one gang], [a different named person] from [another gang], both of whom he said were dead, and [a further person] (from [another gang]). He said that these were people who were dangerous and capable of hurting him. He said that he did not have the strength to look after himself when he went back to New Zealand. He referred to the fact that all his family members were in Australia. He said that he feared for his life if he returned to New Zealand.
[The applicant] said that when he had come to Australia he had been on parole in New Zealand and he had breached his parole. He said that he had done a year and he had still had another year to run so if he went back to New Zealand he would be going straight to prison because he had breached his parole. He said that his mother had visited him in hospital after the attack and had told him that he needed to come to Australia. He said that God had given him a second chance when he had come to Australia and he wanted to stay here for his children. He said that he had no family back in New Zealand. He said that if he went back to New Zealand he might end up killing someone or someone might kill him. He said that he faced either death or gaol. He said that relocation was not possible as these gangs ran New Zealand-wide.
[The applicant] referred to the fact that he was [Ethnicity 1] and he said that the [Gang 1] were a [Ethnicity 2] gang so there had been a culture clash. He said that the [people of Ethnicity 1] and the [people of Ethnicity 2] used to fight each other and he had been involved in these gangs as well. He said that the gang member who had set the hit on him did not like [people of Ethnicity 1]: he was an old school [Ethnicity 2] who had done to a lot of [people of Ethnicity 1] what he had done to him. He said that he had not mentioned this in his application for a protection visa but he had also had a dispute with a member of [a further gang] named [Mr A]. He said that they had met in gaol and had had a few disputes. He said that he had taken this man’s car and two nights later this man had come to his garage and had put a gun to his head, demanding his car back. He said that the gun had jammed and he had attacked this man who had run off. He said that some time later this man had gone on a robbery spree and had used the same gun to kill someone. He said that this man was now serving life in prison but he was due out in 2019 so he would have to deal with this man as well as the [Gang 1] and imprisonment for breach of his parole.
[The applicant] referred to the support letters which he had produced from members of his family and to the ‘Summary of Psychological Treatment’ prepared by the counsellor [in his present location]. He said that gangs ran New Zealand and if you were not in a gang you were weak. He said that everything he had put forward in his application for a protection visa was the truth and nothing but the truth. He said that he was lucky that he was still alive. He said that he had signed the document saying that he had no criminal record when he had come to Australia because he had had no way out and he had been in fear for his life. He asked why these people would not just leave him alone.
[The applicant] confirmed that the first incident which he had mentioned - the kidnapping - had occurred because he had [committed crime 1s] for the [Gang 1] and they had thought that he had some money which he owed to them. He said that the second incident - the shooting when he had been out for his run - had also been to do with this money. He said that the third incident - the attack - had been because the patched member of the [Gang 1] whom he had met in prison had been trying to get him to work together with him. He said that this man had belonged to the [Town 1] [Gang 1] but he had lived in [Suburb 2]. He repeated that this man had come to his house and had taken drugs and money from a man who had worked for him. He said that this man had wanted to shut his ‘shop’ down and this was the reason why he had sent these people to attack him.
[The applicant] said that he had not been paying ‘rent’ to any of the gangs although they had known he had been doing good business and making good money. He said that the [Gang 1] had approached him and had asked him to pay ‘rent’ but he had refused. He repeated that he was lucky to be still alive. He said that he had been getting the drugs he had been selling from [a different gang] but they had not expected him to pay ‘rent’ to them. He said that it had only been the [Gang 1] who had wanted him to pay ‘rent’.
I referred to the fact that [Ms A] had said in her letter that during the period after [the applicant] had got out of hospital and before he had come to Australia he had been attacked another three times. [The applicant] said that he had stayed in the same area, [Suburb 1], and the people who had attacked him had lived in [Suburb 2]. He said that the first of these attacks had happened when he had been driving to see family who lived in [Suburb 2]. He said that he had met one of the gang members outside a shop in [Suburb 2] and he said that when they had seen each other they had attacked each other. He said that the second incident had been at [a local store] in [a local street]. He said that he had been with a friend and he had been walking into the [store] when a gang member who had been involved in the attack on him had been coming out. He said that once again they had both attacked each other. He said that the friend whom he had been with had had [a weapon] and female members of the gang member’s family had intervened to try to stop the fight. He said that the shopkeeper must have called the police because he had heard police sirens so he had left the scene.
[The applicant] said that the third incident had been when he had gone to the [Court 1] because a member of his family had been in court that day. He said that he had seen the [Relative B] of the gang member who had set the hit on him outside the [court]. He said that this man had been one of the gang members involved in the attack on him at his home. He said that he had parked his car and had grabbed [an improvised weapon] from the boot which he had then used to assault the [Relative B] of the gang member. He said that he had seriously assaulted this man who had run off into the court after which he himself had left.
[The applicant] confirmed that, as indicated in the police report in relation to the attack on him which he had produced, he had refused to identify the people who had attacked him and that he had told the police that he did not want to make a complaint in relation to the assault. He said that what went on in the streets stayed on the streets. He said that if he had told the police who had done this he would have jeopardised his life. He said that he was already jeopardised because, as he had mentioned, when he had come to Australia he had been rumoured to be a police witness or a snitch. He said that he could not snitch on people. I put to him that he had said that the authorities in New Zealand could not protect him but from what he had said he had never actually reported any of these incidents to the police. [The applicant] confirmed that this was correct. He said that they had attacked him so he had gone out for revenge to attack them. He said that he could not tell the police who had done this to him: he had had to take responsibility for dealing with this himself. He said that the police had not been there when he had been kidnapped and shot at or when [Mr A] had put a gun to his head. I put to him that the police could not help him if he did not give them the chance to help him. [The applicant] said that because of his name and what he had done in the past in the gangs he would be classed as a snitch. He said that when you were classed as a snitch anyone could take anything off you. He said that he had dealt with snitches himself in prison: he had attacked snitches. He said that a snitch was a nobody. He said that you could not be a snitch: this was the number one rule.
I noted that [the applicant] had referred to what [Ms A] had said about the people who had been asking for him after he had left New Zealand. I asked him if he had heard anything else from people who had been back to New Zealand about people asking for him. [The applicant] said that he had cut ties with everyone back in New Zealand. He said that members of his family went back to New Zealand to visit and they still got approached by friends asking where he was. I referred to the fact that he had been in Australia for over ten years and I put to him that it was difficult to accept that the gang members would still be pursuing him as a result of the dispute which had led them to attack him in 2005. [The applicant] repeated that there was a rumour that he had been able to come to Australia because he was a snitch or a police informant. He said that because of what he had done in New Zealand in the past and what he used to be in New Zealand there was still a threat to him in New Zealand even to this day. He said that people knew him and he was recognisable because of his [body features].
I put to [the applicant] that he had said that the two reasons why he had had problems when he had been released from gaol the last time in New Zealand had been that the [Gang 1] had thought that he had some money which they had wanted from him and a particular man whom he had met in prison had wanted him to work for this man. I put to him again that it was a little difficult to accept that they would still be pursuing him after ten years for either of these reasons. [The applicant] said that he was still a threat to these gangs. He said that it would not matter if he had been here for 20 years. He said that he was a former member of the [Gang B] and no one had achieved what he had achieved in [Suburb 1], standing up to those fellows and dealing with those fellows.
[The applicant] referred to his evidence that he would go back to prison and he said that there was still a threat to him knowing that these gang members were still in prison right now. He said that these fellows would never change: they would be patched members till the day they died. He said that the younger generation would take their place and would proceed with the threats against him. He said that new up-and-coming gang members were a threat to him as well because he had grown up with these fellows since juvenile detention and he knew that they were still going in and out of gaol to this day. He said that since he had been in [his present location] his [child] had been getting messages on [social media] from people in New Zealand asking where he was. He said that people who had been in [his present location] here with him had gone back to New Zealand and had said that he was in there.
[The applicant] confirmed that he had been in gaol in Australia as well but he said that he was not sure if news of this had gone back to New Zealand. I put to him that if these people had wanted to do him harm they could presumably have come to Australia to do him harm. [The applicant] said that the people who wanted to do him harm could not travel to Australia. He agreed that the gangs in New Zealand had connections with the gangs in Australia but he said that they were harmless towards him. He said that he knew for a fact that there would be harm towards him if he went back to New Zealand.
I took evidence from [the applicant’s] mother. She said that his ex-girlfriend had telephoned her when he had been in the hospital after the attack in November 2005 and had told her that she had to come and see her son because the doctors were not sure if he would live. She referred to what she had been told of what had happened. She said that after he had been discharged from the hospital she had remained in New Zealand for a further three weeks to a month. She said that a nurse had still been coming to check on how his injuries were healing. She said that she had been scared for her son to stay there. She referred to the fact that she had left New Zealand to come to Australia in [year] because her husband was an alcoholic and he had been beating her up. She said that he had also sexually abused her [children] and had hit [their other children]. She said that she had not reported what had happened to the police because she had been scared of her husband and ashamed.
[The applicant’s] mother said that she knew that he had been involved with gangs and drugs in New Zealand but she had been happy when he had had the chance to come here and to make a new life. She said that she and her husband were not divorced because she could not afford to pay for a divorce. She said that she had no connection with her husband. She said that she blamed her husband for the fact that her son had become involved in crime. She said that she felt that her son would be at risk if he went back to New Zealand because there was no life there, especially for the gang people. She said that she was scared that they would kill him if he went back to New Zealand. She said that she needed her family to be together in Australia. She said that all her family were here and her son had no family in New Zealand apart from her husband.
[The applicant’s] sister [named] who had accompanied her mother to the hearing said that she supported her brother’s application. She said that although he had a criminal past he had been willing to change his life and they were praying for him. She said that he had been working hard since he had come to Australia and she did not think that it would be a good idea for him to go back to New Zealand because there was a threat to his life there from the gang members over there. She said that they were capable of doing anything to him. She said that she did not want her brother to be killed and it would be a big risk to him to go back. She referred to the fact that he had children here and that he was a grandfather. She said that his family loved him and that they wanted what was best for him because they cared for his welfare. I also attempted to take evidence by telephone from [Ms A] and [his Relative A] but neither number answered: both went to voicemail.
I put to [the applicant] that, as I had mentioned at the beginning of the hearing, in order to come within the definition of a refugee he had to fear persecution for one of five specific reasons: race, religion, nationality, membership of a particular social group or political opinion. I put to him that it did not appear from what he had said that the reason why these other gang members wanted to harm him was for any one of those reasons: it was more for particular personal reasons. One thing was that they had thought he had some money which he had owed them and another thing was that they had wanted him to work for them. I put to him that these were things which were individual to him and not for one of these five reasons.
[The applicant] said that it came to the group as well, as a different group. He referred again to the fact that he was a [Ethnicity 1] and that the [Gang 1] were known as a [Ethnicity 2] gang. He said that in the past there had been war between the [people of Ethnicity 1] and [Ethnicity 2] in New Zealand. He said that there were clashes in the clubs, in prison and in the community between the [people of Ethnicity 1] and [Ethnicity 2]. I referred to [the applicant’s] evidence that two of the [number] gang members who had attacked him in 2005 had been [Ethnicity 1]. [The applicant] confirmed that this was correct but he said that they were under the [Ethnicity 2] gang. He said that this was why he had not joined the [Gang 1] because he knew that it was a [Ethnicity 2] gang although there were [Ethnicity 1] members. He said that the majority of the [Gang 1] were [of Ethnicity 2].
[The applicant] said that culture and nationality came into it. He said that they used the [Ethnicity 1] people to do the lesser jobs while the [people of Ethnicity 2] did not do any of these crimes which needed to be done. He said that as a [person of Ethnicity 1] he was a threat towards the [Ethnicity 2] gang. He said that this group was a gang that was run New Zealand-wide. He said that in the 1980’s a [Ethnicity 2] had [killed][an Ethnicity 1 person] in a market and a [person of Ethnicity 1] had [retaliated against an Ethnicity 2 person] in [Town 1]. He said that [various improvised weapons] were known to be used by [people from his background] as weapons in gang warfare in New Zealand. He said that to this day there was still this war between [these two ethnic communities][Ethnicity 2]. He said that the person who had set the hit on him was [Ethnicity 2] and that this man had hated [people of Ethnicity 1]. He said that [Mr A] who had put a gun to his head was also a [person of Ethnicity 2]. He said that the people who had fired shots at him had been [Ethnicity 2]. He said that [gangs] had separate [Ethnicity 2] and [Ethnicity 1] chapters.
I indicated to [the applicant] that one of the things which I had to look at was whether the New Zealand Government was willing and able to offer him protection. I noted that [the applicant] had said that he could not go to them to seek protection because he would be branded as a police informant but I put to him that he was saying that his life would in jeopardy anyway if he went back to New Zealand. [The applicant] repeated that he had been told by friends in New Zealand after he had come here that a lot of the gangs in New Zealand had labelled him as a police witness but he said that he had not been. He said that they had been asking how he had been able to go to Australia in light of his criminal record. I put to him that I thought that they would know very well that he had got to Australia by lying about his criminal record because it was notorious that this was what other gang members from New Zealand had done. I put to him that I thought that they would also know that he had not given evidence against the people who had attacked him because if he had given evidence the police would have charged these people with the assault on him. [The applicant] said that there was still a threat to him going back to New Zealand because he had attacked the [Relative B] of the patched gang member who had set the hit on him.

I indicated to [the applicant] that the sorts of things which I had to look at in relation to whether protection was available were whether there was an effective justice system in New Zealand and whether it operated in a discriminatory way. I put to him that on the basis of the information available to me the criminal justice system in New Zealand met or surpassed international standards and the judiciary was independent.[1] I put to him that the New Zealand Government had taken a lot of measures to try to deal with gang violence[2] and they continued to take measures to crack down on gang activity in New Zealand.[3] I put to him that I might consider on the basis of this information that he could obtain protection from the New Zealand authorities.
[1] Freedom House, Freedom in the World 2016 in relation to New Zealand, 12 August 2016.
[2] Judith Collins, ‘New Gang Intelligence Centre will reduce gang harm’, 1 March 2016, downloaded from accessed 11 February 2017.
[3] See, for example, ‘Head Hunters gang targeted in police operation’, Newshub, 28 July 2015, downloaded from accessed 11 February 2017; [Source deleted.].
[The applicant] said that by doing that he would not be having a normal life. He repeated that relocation was not possible. He asked what he was supposed to do to protect himself if a gang member saw him or if by word of mouth they came to know he was back in New Zealand and they came to see him. He said that he could not take these people on because he knew how these people worked. He repeated that there was still a threat to his life back in New Zealand: there was a threat that he would be tortured, harmed or killed. He said that they had task forces in New Zealand which could protect him but he was unsure about this because they had not been there when he had been attacked by bikie members, when he had been kidnapped for [number] days, when shots had been fired at him, when [Mr A] had put a gun to his head or when he had been assaulted and seriously injured [in] November 2005. I put to him that as I understood it the police had not been there because he had not called them. [The applicant] said that they had been called after the attack. He referred to the fact that his ex-girlfriend had called the police. I put to him that, as we had discussed, he had then said that he did not want to make a complaint and he had refused to identify the people responsible. [The applicant] said that he could not do this because there was a risk towards him if he was set upon as a snitch or a nark.
I referred to the fact that [the applicant’s] mother and his [Relative A] had said that he would be homeless if he returned to New Zealand. [The applicant] said that he had no family in New Zealand. He said that he did not know the whereabouts of his father. I noted that he had said at the hearing that if he went back to New Zealand he would have to go back to gaol because he had come here while he had still been on parole. I put to him that once he was released he clearly had skills which had enabled him to obtain employment in Australia in [industry 1]: as his mother and sister had said at the hearing he had had a good work record here and this would suggest that he would be able to obtain similar employment in New Zealand. [The applicant] agreed but he said that he would not have a normal life because he would be watching his back. He repeated that there was a threat that he would be tortured, harmed or killed if he went back to New Zealand. He said that he had these skills which he had learned in Australia but he said that he would not be able to work if he went back to New Zealand. He said that he would not be able to go out and do normal stuff. He repeated that he could not relocate to the South Island as he had worked with the gang members there. He said that there was a threat to him in the community and that he would be identified because of his [body features]. He said that he would be recognised by people with whom he had worked in the past and by family or friends whom he knew.
I noted that [the applicant] had also produced evidence that he had been getting some counselling while he had been in [his present location]. I put to him that there was nothing in the information available to me to suggest that he would not be able to obtain similar services in New Zealand. I put to him that as a New Zealand citizen he was able to access publicly funded health and disability services.[4] [The applicant] agreed but he repeated that he would be watching his back all the time. He said that to this day he was dealing with nightmares and flashbacks and not sleeping well as a result of what had happened to him in 2005.
[4] See Ministry of Health NZ, ‘Guide to eligibility for publicly funded health and disability services - NZ citizens (including Cook Islands, Niue or Tokelau)’, downloaded from accessed 12 February 2017.
I indicated to [the applicant] that I would take into account everything he had said about what he feared and the problems which he had had in the past. [The applicant] stated that everything he had said at the hearing was the truth and nothing but the truth. He said that going back to New Zealand was just another level of imprisonment and that there would be sufficient harm to him if he went back to New Zealand. He said that he had nearly died as a result of the injuries which he had suffered in the assault in 2005. He said that he had the full support of his family in Australia and he did not have anything back in New Zealand.
Conclusions
I accept [the applicant’s] evidence about his criminal past in New Zealand. I accept that, as he said, he became involved in criminal activity from an early age and that he was involved with gangs in New Zealand although he was never a patched member. I accept that he was the victim of a serious assault [in] November 2005 and that after this his family members here encouraged him to come to Australia which he did in March 2006. I do not accept that, as he said at the hearing before me, there were rumours circulating in New Zealand that he had become a police witness or a police informant because people were asking how he had been able to come to Australia given his criminal record. As I put to him, it is notorious that gang members from New Zealand have been able to enter Australia by lying about their criminal records as he did. I consider, moreover, that the gang members would have known that he had not given evidence against the people who attacked him in November 2005 because if he had given evidence the police would have charged these people with the assault on him.
As I emphasised to [the applicant] at the hearing before me, I am only considering his application for a protection visa. As referred to above, he has a separate application for review in the General Division of the Tribunal in relation to the cancellation of his [temporary] visa and that review involves different questions. In particular I am not concerned for the purposes of this review with whether it would be better for [the applicant] and for his family members in Australia if he were to be allowed to remain here rather than being removed to New Zealand. As I explained to him, the first question which I have to look at is whether he is a refugee as defined in the Migration Act. That definition requires that there is a real chance that he will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to New Zealand now or in the reasonably foreseeable future. As I put to him, it does not appear to me that one or more of those reasons is the essential and significant reason for the persecution which he fears as required by paragraph 5J(4)(a) of the Migration Act.
[The applicant] referred at the hearing before me to the fact that he is of [Ethnicity 1] background and that there is a longstanding conflict between the [Ethnicity 1] and [Ethnicity 2] communities in New Zealand. I accept that, as he said, the [Gang 1] are known as a [Ethnicity 2] gang and I accept that the patched member of the [Gang 1] who sent the gang members to attack him in November 2005 was [of Ethnicity 2]. However, as I put to [the applicant], it does not appear to me from his evidence that this was the reason for the attack on him. [The applicant] has said that he had done work for the [Gang 1] in the past, that two of the [number] gang members who attacked him were [of Ethnicity 1] and that the [people of Ethnicity 2] used the [people of Ethnicity 1] to do crimes for them. While it may be true, as [the applicant] said, that the man who set the hit on him hated [people of Ethnicity 1], the motive for the attack according to him was that this man had wanted him to work with him or for him and that [the applicant] had refused. Likewise, while it may be true that the man who held a gun to [the applicant’s] head, [Mr A], was also [Ethnicity 2], the reason for this according to [the applicant’s] own evidence was that [the applicant] had taken this man’s car.
[The applicant] explained at the hearing before me that the two other incidents which he had mentioned in his application for a protection visa - the kidnapping and the shooting - were related to the fact that he had been [committing crime 1s] for the [Gang 1] and that they had believed that he owed them money. As I put to him, the reasons for these attacks on him all appear to me to be individual to him and not related to his race or nationality as a [Ethnicity 1] or to his membership of any particular social group as defined in the Migration Act. As referred to above, [the applicant] said at the hearing before me that he had not joined any of the gangs as a patched member because he preferred to work on his own although he had done work for all these gangs. I accept that, as he said, these gangs wanted to recruit him as a member but he refused but I consider once again that this is a matter individual to him: I do not accept on the evidence before me that he was being attacked or threatened for reasons of his membership of any particular social group such as one of these gangs.
I have taken into account the letters and the oral evidence of the witnesses suggesting that there is still a threat to [the applicant’s] life if he returns to New Zealand. He said himself that there was still a threat to his life or a threat that he would be tortured, harmed or killed if he went back to New Zealand because he was still a threat to these gangs. He said that he was a former member of the [Gang B] and that no one had achieved what he had achieved in [Suburb 1], standing up to those fellows and dealing with those fellows. I accept that, as he said, he will be recognised if he goes back to New Zealand because of his [body features] and because there are many people there with whom he has worked in the past. He said that if he went back to New Zealand he would have to be constantly watching his back but, as I put to him, I do not accept that the [Gang 1] will still be pursuing him after ten years for the money they claimed he owed them following his release from prison in [specified year] nor that the patched member of the [Gang 1] who wanted him to work with him or for him will still be interested in pursuing him for this reason if he returns to New Zealand now.
I consider it relevant in this context that [the applicant] said at the hearing before me that after the attack in November 2005 he continued living in [Suburb 1] until he left New Zealand to come to Australia in March 2006. He described two further incidents in which he had encounters with gang members in [Suburb 2] and in [a local street] in [Suburb 1] and a third incident in which he had attacked the [Relative B] of the gang member who had set the hit on him outside the [Court 1], assaulting him with [an improvised weapon]. He said that there was still a threat to him going back to New Zealand because of this attack but once again, as I put to him, I consider it relevant that ten years have gone by since then. He has referred to the evidence of his ex-girlfriend, [Ms A], and his [Relative A] that people in New Zealand have been asking about him since he left and at the hearing before me he said that since he had been in [his present location] his [child] had been getting messages on [social media] from people in New Zealand asking where he was. He said that people who had been in [his present location] here with him had gone back to New Zealand and had said that he was in there.
I consider that it is clear from his evidence that his former criminal associates and any gang members who may have wished him harm have been aware that he has been in Australia since he came here in March 2006 and I consider it relevant that he does not suggest that there has been any attempt to harm him during the time he has been in Australia. [The applicant] said that the people who wanted to do him harm could not travel to Australia but they could presumably have lied about their criminal records in order to come to Australia just as he did. Moreover, as he conceded, the gangs in New Zealand have connections with the gangs in Australia. [The applicant] said that they were harmless towards him but I do not accept on the evidence before me that there is a real chance that he will be tortured, harmed or killed or otherwise persecuted because of anything he may have done in his criminal past or any disputes he may have had in the past with other criminals if he returns to New Zealand now or in the reasonably foreseeable future. Furthermore, for the reasons given above, I do not accept that one or more of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act is the essential and significant reason for the persecution which he fears on this basis as required by paragraph 5J(4)(a) of the Act.
I accept that, as [the applicant] said, he may be imprisoned on his return to New Zealand because he was still on parole at the time he came to Australia. I consider that this is a consequence of the enforcement of a law which applies generally in New Zealand and I do not accept on the evidence before me that there is a real chance that he will be singled out or treated differently, for one or more of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act, from anyone else who may have breached their parole if he returns to New Zealand. For the reasons given above I do not accept that he has been labelled as a police witness or a police informant as a result of his having come to Australia and I do not accept, therefore, that there is a real chance that he will be persecuted for this reason if he returns to New Zealand now or in the reasonably foreseeable future.
As I noted in the course of the hearing before me, [the applicant’s] mother and his [Relative A] said that he would be homeless if he returned to New Zealand but, as I put to him, on the evidence before me he has skills which have enabled him to obtain employment in Australia in [industry 1] and this suggests that he would be able to obtain similar employment in New Zealand. [The applicant] agreed that he had these skills which he had learned in Australia but he said that he would not be able to work if he went back to New Zealand and that he would not be able to lead a normal life because he would be watching his back as a result of the threat he claims to face from the gang members. For the reasons given above I consider that the chance that he will face harm from gang members or criminals is remote and I consider that he will therefore be able to lead a normal life and to earn a living in New Zealand as he was doing in Australia prior to his most recent term of imprisonment. Given the length of time for which he has been in Australia I do not accept that there is a real chance that the gang members or criminals will once again want to recruit him if he returns to New Zealand: I consider that they will leave him alone as they have apparently done while he has been living in Australia. I do not accept on the evidence before me that there is a real chance that he will be homeless or that, for example, he will suffer significant economic hardship that will threaten his capacity to subsist for one or more of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act if he returns to New Zealand now or in the reasonably foreseeable future.
As I noted, [the applicant] also produced evidence that he had been getting some counselling while he had been in [his present location] and I put to him that there was nothing in the information available to me to suggest that he would not be able to obtain similar services in New Zealand. As I put to him, as a New Zealand citizen he will be able to access publicly funded health and disability services[5]. [The applicant] agreed but he repeated that he would be watching his back all the time. He said that to this day he was dealing with nightmares and flashbacks and not sleeping well as a result of what had happened to him in 2005. I do not accept on the evidence before me that there is a real chance that he will be discriminated against or refused access to health services for one or more of the five reasons mentioned in paragraph 5J(1)(a) of the Migration Act if he returns to New Zealand. For the reasons given above I do not accept that he will be continually watching his back in New Zealand and I consider that he will be able to lead a normal life in New Zealand as he has been doing in Australia.
[5] See footnote 4 above.
I do not accept for the reasons given above that [the applicant] has a well-founded fear of persecution as defined in subsection 5J(1) of the Migration Act and I do not accept, therefore, that he is outside his country of nationality owing to a well-founded fear of persecution as required by the definition of a refugee in section 5H. Accordingly I am not satisfied that he is a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Migration Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm?
Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm because of anything he may have done in his criminal past or any disputes he may have had in the past with other criminals. Having regard to my findings of fact above, I likewise do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm from gang members or criminals. I consider that the risk that he will face harm from gang members or criminals is remote. Given the length of time for which he has been in Australia I do not accept that there is a real risk that the gang members or criminals will once again want to recruit him if he returns to New Zealand. Moreover, as I put to him, I consider it relevant in this context that on the basis of the information available to me the criminal justice system in New Zealand meets or surpasses international standards and that the judiciary is independent.[6] As I put to him, the New Zealand Government has taken a lot of measures to try to deal with gang violence[7] and it continues to take measures to crack down on gang activity in New Zealand.[8] While I accept that, as [the applicant] said at the hearing before me, he does not wish to seek protection from the authorities and he prefers to take responsibility for dealing with such matters himself, I consider on the basis of this information that he could obtain protection from the New Zealand authorities such that there would not be a real risk that he would suffer significant harm as referred to in paragraph 36(2B)(b) of the Migration Act and that there is therefore taken not to be a real risk that he will suffer significant harm in New Zealand.
[6] Freedom House, Freedom in the World 2016 in relation to New Zealand, 12 August 2016.
[7] Judith Collins, ‘New Gang Intelligence Centre will reduce gang harm’, 1 March 2016, downloaded from accessed 11 February 2017.
[8] See, for example, ‘Head Hunters gang targeted in police operation’, Newshub, 28 July 2015, downloaded from accessed 11 February 2017; [Deleted.]

I accept that, as [the applicant] said, he may be imprisoned on his return to New Zealand because he was still on parole at the time he came to Australia but I consider that this is a consequence of the enforcement of a law which applies to the population of New Zealand generally and I do not accept on the evidence before me that the law will be applied differently to [the applicant] for any reason personal to him. I consider that the consequences of the breach of his parole therefore come within the exception in paragraph 36(2B)(c) of the Migration Act in that the risk is one faced by the population of New Zealand generally and not by [the applicant] personally.[9] Having regard to my findings of fact above, I do not accept that [the applicant] has been labelled as a police witness or a police informant as a result of his having come to Australia and I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm for this reason.
[9] See SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10]-[18] per Rares J.
As I noted in the course of the hearing before me, [the applicant’s] mother and his [Relative A] said that he would be homeless if he returned to New Zealand but, as I put to him, on the evidence before me he has skills which have enabled him to obtain employment in Australia in [industry 1] and this suggests that he would be able to obtain similar employment in New Zealand. [The applicant] agreed that he had these skills which he had learned in Australia but he said that he would not be able to work if he went back to New Zealand and that he would not be able to lead a normal life because he would be watching his back as a result of the threat he claims to face from the gang members. Having regard to my findings of fact above I consider that the risk that he will face harm from gang members or criminals is remote and I consider that he will therefore be able to lead a normal life and to earn a living in New Zealand as he was doing in Australia prior to his most recent term of imprisonment. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm because he will end up being homeless or destitute.
[The applicant] also produced evidence that he had been getting some counselling while he had been in [his present location] but, as I put to him, there is nothing in the information available to me to suggest that he will not be able to obtain similar services in New Zealand. As I put to him, as a New Zealand citizen he will be able to access publicly funded health and disability services[10]. [The applicant] agreed but he repeated that he would be watching his back all the time. He said that to this day he was dealing with nightmares and flashbacks and not sleeping well as a result of what had happened to him in 2005. There is nothing in the evidence before me to indicate that the New Zealand Government will arbitrarily refuse [the applicant] medical treatment or that it has arbitrarily limited treatment for people with the sort of problems he has such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will be arbitrarily deprived of his life.
[10] See footnote 4 above.
The definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. I do not accept on the evidence before me that there is the requisite intention to inflict pain or suffering or to cause extreme humiliation to people suffering from the sort of problems which [the applicant] has. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm as defined as a result of these problems.
I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to New Zealand, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations. Subsection 36(2) of the Act provides that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Refugee criterion
Section 5H of the Migration Act defines a person as a refugee if, in a case where the person has a nationality, the person is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country or, in a case where the person does not have a nationality, the person is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. Subsection 5J(1) states that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of a receiving country.
The definition of a refugee contains four key elements. First, the applicant must be outside his or her country of nationality or country of former habitual residence. Secondly, the applicant must fear ‘persecution’. Subsection 5J(4) of the Migration Act states that the persecution must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 5J(5) states that the following are instances of ‘serious harm’:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ paragraph 5J(4)(c) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429. Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:
‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’
‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Refugees Convention, the threat of harm to a person:
‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)
Thirdly, the applicant must fear being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Paragraph 5J(4)(a) states that one or more of the reasons mentioned in paragraph 5J(1)(a) must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Fourthly, the applicant must have a ‘well-founded fear of persecution’ as defined in subsection 5J(1). That subsection contains a subjective requirement, that the person fears being persecuted, and an objective requirement, that there is a real chance that the person will be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility: see Chan per Toohey J at 407 and McHugh J at 429. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation: see Guo, referred to above, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572.
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Migration Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa), set out above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed. ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A): see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’, to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2017] AATA 360

17 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction