1701464 (Refugee)

[2021] AATA 4609

1701464 (Refugee) [2021] AATA 4609 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701464

COUNTRY OF REFERENCE:                   Zimbabwe

MEMBER:Paul Noonan

DATE:09 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2021 at 04:57pm

CATCHWORDS

REFUGEE – protection visa – South Africa – imputed political opinion – brother’s presence at MDC rally – brother not a member of MDC – persecution of brother and family members by ruling party ZANU-PF – late claim of brother’s homosexuality – fears of persecution as family member of homosexual – failed asylum seeker from the west – separation from family in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Zimbabwe, applied for the visa on 16 January 2015. The delegate refused to grant the visa on the basis that the applicant’s brother is not and never has been a Movement for Democratic Change (MDC) supporter or activist and therefore the applicant does not have an adverse profile in Zimbabwe and as such does not have a well-founded fear or persecution.

3. The applicant was born on [date] in Harare, Zimbabwe. He travelled to Australia [in] July 2010 on a Class TU Subclass 572 visa. On 5 September 2012 the applicant applied for a Skilled Graduate 485 visa which was refused on 20 June 2013. On 30 August 2013 the applicant applied for a Partner visa. On 18 September 2013 the applicant married [a named person] who is not a party to this application. On 31 January 2014 the applicant’s partner visa was refused. On 24 December 2014 an appeal of this decision was affirmed by the Migration Review Tribunal.

4. The applicant appeared before the Tribunal on 13 August 2021 by conference telephone to present evidence and arguments in support of his claims. The applicant provided the Tribunal with a copy of the delegate’s decision prior to the hearing.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

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

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country of reference

11. The Tribunal accepts, on the basis of his passport retained on the Tribunal record and the delegate’s assessment as such, that the applicant is a citizen of Zimbabwe and has assessed his claims against that country.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Decision summary

12. The issue in this case is whether the applicant engages Australia’s protection obligations because he has a well-founded fear of persecution in Zimbabwe for the essential or significant reason of his imputed political opinion as a supporter of the MDC political movement. In the alternative, whether the applicant satisfies the requirements for a protection visa in Australia on complementary grounds.

    The applicant’s claims for protection

13. In his written claim for protection the applicant wrote as follows:

    ·Q89 I am seeking protection in Australia so that I do not have to return to Zimbabwe.

    ·Q90 Why did you leave that country? I left Zimbabwe to pursue Education in Australia.

    ·Q91 What do you think will happen to you if you return to that country? I will be a victim of attacks because the Zimbabwean authorities are looking for my brother [Brother A]. He spoke publicly against the ruling party ZANU-PF which is fronted by president Robert Mugabe, He was brutally assaulted by the authorities, him and other bystanders who were listening. After that, members of our family, including [Brother A] were assaulted or received death threats. My brother had to relocate to South Africa. I fear if I return to Zimbabwe I will definitely suffer the same fate.

    ·Q92 Did you experience harm in that country? No.

    ·Q94 Did you move or try to move to another part of that country to seek safety? At the time of the incident, I was in Australia.

    ·Q95 Do you think you will be harmed or mistreated if you return to that country? Yes The authorities have assaulted and threatened my family members and I would suffer the same fate if I were to return to Zimbabwe. I fear I will be beaten to death, assaulted by the authorities or members of the ruling party or even have my life threatened constantly.

    ·Q96 Do you think the authorities of that country can and will protect you if you go back? No The authorities are the perpetrators that assaulted by brother along with other members of ZANU-PF (the ruling party). They did nothing when members of ZANU-PF threatened my brother and other family members. They will not me at all.

    ·Q97 Do you think you would be able to relocate within that country? No My brother tried to relocate in Zimbabwe but he was threatened until he fled to South Africa. It is not secure in Zimbabwe after going against the ruling party. I may suffer the same fate.

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

    The Tribunal hearing and the Tribunal’s considerations

15. The Tribunal set out the following evidence and documents at the commencement of the hearing which the applicant confirmed represented all relevant evidence that he wished to be considered by the Tribunal:

16.      Documents lodged by applicant	Dated	Folio
Claimed photograph of applicant’s brother [Brother A] (claimed that photograph came from Facebook)	n/a	101
Scans of multiple bank cards in applicant’s name Scan of Western Australia Proof of Age Card	n/a	100
Letter to Department from [name] (mother of applicant)	12 September 2015	99
Handwritten medical records (in English) from [a] Clinic in Harare, Zimbabwe outlining injuries sMDustained by [Brother A]	Various	98-92
Letter from [Brother A] (applicant’s brother) in support of applicant’s claim.	11 September 2015	91-90
Certified Copy of an Entry of Birth Registered in Zimbabwe of the applicant	8 June 2015	89-88
Australian Federal Police DIBP Request for Criminal History Information	-	86
Certified Copy of Zimbabwean Passport	-	83-59
Application for Protection Visa	12 January 2015	49-25
Form 866B Persons Included	12 January 2015	24-15
Six images of applicant’s brother [Brother A] with sustained head injuries.	Undated	14
Article titled ‘ZANU PF at it again’	2013	13
Five images of individuals protesting in Zimbabwe	Undated	12
Article and four images regarding assaults conducted by ZANU PF	2013	11
Article titled Zanu PF supporters bash MDC followers’	13 January 2015	10-9
Western Australia Marriage Certificate	[date] September 2913	8
Application for Zimbabwe Passport	-	7
Biopage of applicant’s Zimbabwean Passport	Issued [2003]	5
Dept documents	Dated	Folio
Non-disclosure checklist	13 February 2008	128
Refusal Notification	12 January 2017	127-124
Primary Decision of Department	12 January 2017	121-103

Administrative Appeals Tribunal – Review Application
Documents lodged by applicant	Dated	Doc ID
No substantive documents submitted to Tribunal as at 26 July 2021
Department Refusal Decision + Notification	January 2017	[deleted]

1. At the start of the hearing the Tribunal set out with the applicant his written claims for protection as noted earlier in these Reasons. The applicant confirmed his written claims are a true and accurate representation of his claims for protection.

2. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  

   [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

3. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

4. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

5. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

6. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

7. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

8. The applicant informed the Tribunal that his brother [Brother A] is now a long-term resident of South Africa. He first stated that he is not aware of [Brother A]’s movements or whether he has ever returned to Zimbabwe, as far as he knows, he has never gone back to Zimbabwe. He does talk to [Brother A] occasionally but it has been a while since he last spoke to him.

9. The applicant stated that [Brother A], while not an active MDC member was at or around an MDC rally and was imputed with support for MDC. He does not know if [Brother A] was at the rally as an observer or in some other capacity. He does not know who attacked [Brother A] at this rally. He did discuss the attack with [Brother A] at that time but he does not know, perhaps from his description it might have been the authorities in disguise. Soon after he started getting threats at home. He stated that he thinks [Brother A] went to the hospital. This is where he got the injury images from that attack that he sent to the Department.

10. The Tribunal put to the applicant that he had given evidence that his brother [Brother A] was an active member and supporter of the MDC political party in Zimbabwe. Further that he was attacked. That he submitted letters from [Brother A] and his mother to the Department that deny he was ever involved in politics or MDC. That he also submitted purported photos and medical reports of his brother’s claimed assault injuries which predate the date he claimed that he was attacked. Further that his brother claimed he had suffered multiple assaults however he only specified one assault in October 2012 in his claim. The Tribunal put to the applicant that this information is relevant because it may cause the Tribunal to doubt the truthfulness of his evidence and to consider that his claims lack credibility with respect to the claim that his brother was targeted for persecution for reason of his political opinion.

11. The applicant noted that [Brother A] stated that he was attacked in his letter. He thinks he was really attacked because of his imputed sexuality (which was the other reason [Brother A] set out that he was attacked in his letter), although he is not really sure why he was targeted. In retrospect he understands how the delegate came to his conclusion because [Brother A] is not very political and was just a supporter and not an active member.

12. The applicant agreed he had not raised the issue of [Brother A]’s imputed homosexuality as a reason that he himself feared harm before this hearing with the Tribunal. The Tribunal asked the applicant if he is now making a claim to fear harm due to his brother’s imputed sexuality. He stated that he is now worried that he will be targeted as the brother of an imputed homosexual.

13. The Tribunal put to the applicant that, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the legislation states that the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

14. The applicant stated that he did not make this claim before as it hurts him that his brother is thought of in this way as he is not actually homosexual. The Tribunal put to the applicant that, if he genuinely feared harm for this reason, it may not accept as a reasonable explanation that he did not set out this fear of harm in this regard just because he felt hurt about the claim. The applicant simply stated that it is not something he would advertise at all. He is just talking about it now because his brother and mother brought it up. The Tribunal notes that this claim of past harm, due to [Brother A]’s imputed sexuality, was set out in letters before the Delegate by [Brother A] and the applicant’s mother but that the applicant did not make any claim to fear harm for this reason for himself at that time.

15. The Tribunal is not satisfied that the applicant gave a reasonable explanation as to why the claim to fear harm, due to [Brother A]’s imputed sexuality, was not made prior to the Tribunal hearing. The Tribunal does not consider the applicant’s explanation that this imputed sexuality claim hurt him too much to state the claim prior as reasonably plausible. If his brother was targeted for harm for this reason, then the reason given that he was hurt by the actions of the perpetrators is a highly implausible reason not to previously disclose this if he actually feared harm for this reason. It is far more plausible that the applicant has made this claim to fear harm up on the spur of the moment when the Tribunal pointed out the inconsistent and contradictory evidence problems with respect to his claim to fear harm due to his brother’s political opinion. The Tribunal draws an adverse inference, pursuant to s.423A, with respect to this claim and rejects the applicant’s claim that he fears harm because of [Brother A]’s imputed sexuality. The Tribunal therefore rejects the applicant’s claim that he will be subject to harm due to his brother’s imputed sexuality as not credible should he return to Zimbabwe. 

16. With respect to the photo date evidence discrepancy put to him the applicant submitted a lot of time had passed and he does not have any comment. The Tribunal accepts that much time has passed since the claimed date of the assault further that these photos may actually depict an earlier assault upon [Brother A]. However, the Tribunal considers it highly implausible that a past assault on [Brother A] was for the reason of his imputed homosexuality for the simple fact that [Brother A] has clearly stated that he is not homosexual. It is far more plausible that these past photos have simply been submitted in an attempt to strengthen the applicant’s political opinion claims.

1. The applicant stated that no other relatives have been harmed for reason of [Brother A]’s imputed political opinion. The Tribunal noted that the applicant had given evidence to the delegate that he had stated that relatives had been assaulted and received death threats with respect to [Brother A]. The applicant stated that yes that was the case but that was a long time ago. He denied they had been physically assaulted but had been provoked and coerced which was why he had stated no other relatives had been harmed.

2. The Tribunal put to the applicant that many years have now passed since [Brother A] left Zimbabwe and he has given evidence that [Brother A] was at most a low level supporter of MDC, that he is not actually homosexual, and he himself has no MDC profile. Further, that since the time of the claimed incident, there have been at least two changes in the political leadership.[2] The Tribunal put to the applicant that these factors may suggest that neither [Brother A] nor he would have any adverse profile for reason of his or [Brother A]’s imputed political opinion or [Brother A]’s imputed sexuality whatsoever should he return to Zimbabwe. The applicant stated that he does not feel right about returning, maybe it would be okay but right now it still scares him. He is not really sure himself and he agreed that a lot of time has passed and a lot has changed since he made his claims.

   [2] Department of Foreign Affairs and Trade, Country Information Report – Zimbabwe, 19 December 2019 p.8–9

3. The Tribunal put to the applicant that DFAT assesses that a large number of Zimbabweans have left for South Africa in recent years for economic reasons.[3] The applicant stated that yes this could be a mitigating issue for his brother but he did initially leave for reason of his fear of harm.

   [3] Department of Foreign Affairs and Trade, Country Information Report – Zimbabwe, 19 December 2019 p.55

4. The applicant submitted that what happens on the ground is different to the DFAT information. The Tribunal noted that it is required to have regard to DFAT country information and that DFAT gathers their information from a wide variety of sources.[4]

   [4] Department of Foreign Affairs and Trade, Country Information Report – Zimbabwe, 19 December 2019 p.7

5. The applicant confirmed that his mother returned to Zimbabwe in 2013 to sell her home and did so unimpeded and returned to her home in the United Kingdom where she is a citizen. However, he claimed that she had told him she had felt unsafe while she was there. When asked for details he stated that he had this conversation a long time ago with her. From what he can remember she just mentioned some strange people hanging around the house. The Tribunal accepts that the applicant’s mother may have felt unsafe at this time. The Tribunal would expect that if the family was being directly targeted for harm for reason of their political opinion then this would have been explicitly clear to the mother. The fact that she was able to sell her home unimpeded and exit the country unharmed strongly suggests that neither she nor any member of her family was of adverse interest to the authorities or their supporters.

6. The applicant also informed the Tribunal that he has now been in Australia for over ten years and has made a life for himself here. His wife is pregnant at the moment. He feels very uneasy about having to go back to Zimbabwe and starting all over again. He works in Australia in computer repairs. The Tribunal finds that the applicant’s concerns of harm in this regard are understandably to do with potential separation from his family should they not move to Zimbabwe with him however the harm feared does not constitute persecution for a refugee reason.

7. The Tribunal put to the applicant that DFAT assesses generally that only high-profile opponents of the authorities may be at risk of detention upon re-entry in Zimbabwe.[5] The Tribunal put to the applicant that it may consider that his evidence does not reflect that he would have any such adverse high profile with the authorities and as such there is no real chance or real risk that he would be detained by the authorities should he return to Zimbabwe. Further, that DFAT is unaware of any cases to date in which returnees, including failed asylum seekers, have faced persecution or mistreatment on return.[6] The Tribunal has considered the applicant’s statement that he has lived in Australia for many years and the imputed claim that he may suffer harm as being a long term resident of the West. However, there is nothing before the Tribunal to indicate that this factor alone would result in a real chance of serious harm to the applicant and the country information reflects that failed asylum seekers are not subject to persecution for that reason.

   [5] Department of Foreign Affairs and Trade, Country Information Report – Zimbabwe, 19 December 2019 p.56

   [6] Department of Foreign Affairs and Trade, Country Information Report – Zimbabwe, 19 December 2019 p.56

8. The Tribunal accepts that the country information submitted by the applicant, as set out earlier in these Reasons, reflects that there has been politically motivated violence perpetrated against members and supporters of MDC in Zimbabwe by the authorities and their supporters. This is in accordance with DFAT assessments with respect to the situation for MDC in Zimbabwe. The Tribunal has considered, and put to the applicant, concerns that it has with other evidence that he has submitted including the dates of purported photographs of [Brother A]’s claimed injuries and with respect to submissions made by [Brother A] and his mother.

9. The Tribunal considers that the applicant has provided extremely vague and unconvincing evidence with respect to claimed past harm suffered by [Brother A] for reason of his political opinion or imputed political opinion. The applicant’s brother has in fact stated that he was not involved in politics or the MDC and when concerns about inconsistent and contradictory evidence from [Brother A] and his mother were put to him about [Brother A]’s political opinion, the applicant introduced a new claim to fear harm based upon his brother’s imputed sexuality rather than directly addressing the Tribunal’s concerns with respect to the evidence about [Brother A]’s political opinion.

10. Overall, the Tribunal is satisfied that [Brother A] was not a member or supporter of MDC and has not suffered persecution for reason of his political opinion (imputed or otherwise). The Tribunal also has made an adverse inference with respect to the applicant’s introduction of a new claim to fear harm based upon [Brother A]’s imputed sexuality and has rejected the applicant’s claim that he will be subject to harm due to [Brother A]’s imputed sexuality as not credible should he return to Zimbabwe. 

11. In summary the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm for reason of [Brother A]’s political opinion (imputed or otherwise) or imputed sexuality or for reason of the applicant being a failed asylum seeker returnee from a western country should he return to Zimbabwe now or in the reasonably foreseeable future.

12. The Tribunal has also considered the cumulative claims of the applicant and is not satisfied he has a well-founded fear of persecution for any reason. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection considerations

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has also considered the alternative criterion in s.36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Zimbabwe, there is a real risk the applicant will face significant harm.

14. The Tribunal has considered the applicant’s claim to fear harm due to the potential separation from his family should he be required to return to Zimbabwe, and they don’t accompany him there. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s.36(2A).[7] The Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.  

    [7] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201)

15. In MIAC v SZQRB, the Full Federal Court 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 refugee definition.[8] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on the basis of his own political opinion, or his brother’s political opinion or sexuality (imputed or otherwise) or for reason of him returning from a western country as a failed asylum seeker.   

    [8] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]

    Conclusion

16. 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).

17. 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

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

    Paul Noonan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – 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

    (b)     in a case where the person does not have a nationality – 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.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

    (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.

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

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

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

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

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

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

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

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

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

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

    …