1701767 (Refugee)

[2019] AATA 4207

1701767 (Refugee) [2019] AATA 4207 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701767

COUNTRY OF REFERENCE:                  El Salvador

MEMBER:C. Packer

DATE:27 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 27 March 2019 at 11:25am

CATCHWORDS
REFUGEE – protection visa – El Salvador – threats by criminal gang – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a man aged [deleted], born in El Salvador and a citizen of El Salvador. He arrived in Australia [in] May 2015, as a holder of a [temporary] visa, and had travelled on an El Salvador passport issued [in] 2013 and valid to [2018].

3. On 16 June 2015 the applicant applied for a Protection (Class XA) visa.

4. His spouse and child also applied for Protection (Class XA) visas in the same application. However, they departed Australia in April 2017. In a Form 1022 the applicant advised the Department that he and the spouse are separated and she and their child had returned to El Salvador. At hearing the applicant stated they are no longer in a married relationship and the former spouse has custody of their child. However, there is no evidence the secondary applicants have withdrawn themselves from the application and so they remain secondary applicants in this application.

5. On 27 February 2019 the Tribunal sent a s.424A letter to their last known address for correspondence that invited the secondary applicants to comment on respond to information that they had not been in Australia since [April] 2017 and that a Protection visa can only be granted if an applicant is in Australia. The secondary applicants did not respond. The first-named applicant responded on 12 March 2019 and advised the secondary applicants are “out of the country it is impossible for them to respond”.

6. On 23 February 2016 the applicant attended an interview with a delegate.

7. On 12 January 2017 the delegate refused the application.

8. On 1 February 2017 the applicants applied for review of the delegate’s decision.

9. On 7 December 2018 the applicant attended a Tribunal hearing.

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

11. The applicant’s narrative is centred on his fear of harm from some gang members who demanded money and threatened to kill him and his family. However, my great concerns with significant elements of the applicant’s narrative and evidence lead me to disbelieve the story. My assessment follows.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

12. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application, the applicant stated that he was born and raised in San Salvador ([Suburb]) in El Salvador. He is a Christian and Hispanic and he completed Year [number]. He had work from June 2012 to May 2015 as an [occupation]. He had married [in] October 2013 and their child was born on [date]. He had parents and [siblings] in El Salvador, and [relatives] in Australia. At the hearing the applicant said he and the former spouse are no longer in a married relationship and she and their child have returned to El Salvador. He works in Australia as a [occupation].

13. The applicant’s protection visa application showed travel for holidays to [Country 1] (2002 and 2009) and [Country 2] (2013), and travel in transit in 2015 to [Country 2], [Country 3] and [Country 4].

14. Country information[1] about El Salvador shows the country with a population of 6.4 million is considered to be ‘free’. However, violence linked to criminal gangs remains a grave problem, and concerns remain about the influence such groups have in politics. Authorities have pursued a harsh, militarized response to the country’s gangs. Elections in El Salvador are generally credible and free. The country has a lively press and civil society sector, though journalists risk harassment and violence in connection with work related to gang activity or corruption. In 2017 the annual homicide rate declined with 3,947 homicides reported during the year compared to roughly 5,300 in 2016.

    [1] Freedom in the World 2018 El Salvador, [ of claims

15. The applicant claims to fear harm in El Salvador from some gang members. His key claims as summarised are:

    ·In April 2015 a gang demanded he pay money to them or join the gang.

    ·On Saturday [date] April 2015 as he drove from his house’s driveway he was stopped by two men who stood in front of his vehicle with drawn guns. They took $US500 from him and demanded $US5,000 within 24 hours.

    ·The applicant, his wife and child drove to the mother-in-law’s house to stay overnight. He nonetheless went to work on Sunday for four hours, finished work around 10am, returned to the mother-in-law’s house, and they then reported the matter to the police.

    ·On Monday [date] April 2015 when he returned to the mother-in-law’s house from work an unidentified man stopped him and demanded he leave the area but leave the wife and child behind because the wife was from that suburb and in the past had been the man’s intended wife.  The wife denied knowing any such man.

    ·They then returned to their house where they lived with his mother and [siblings]. They decided to buy airline tickets, and fled the next day.

    Evidence

16. The evidence before the Tribunal includes the following material (not all is listed) :

    ·the Department’s file

    ·the applicant’s Protection visa application form lodged on 16 June 2015, which includes handwritten reasons for seeking protection in Australia

    ·passport pages, identity documents, references

    ·police report ([Suburb] Police Station) of [date] April 2015

    ·bank account statements

    ·the Protection visa decision record (‘delegate’s decision’) dated 12 January 2017, which is the subject of this review, and at hearing a copy was provided to the Tribunal by the applicant

    ·Form 1022 Notification of changes in circumstances, received 2 May 2017

    ·the application for review

    ·Department of Health and Human Services letter dated [date] April 2017

    ·money transfer document of [date] April 2015

    ·statement of [Ms A] dated 7 December 2018

    ·a [Organisation] report of 4 April 2017

    ·job reference dated 26 November 2018

17. The applicant appeared before the Tribunal to give evidence and present arguments, on 7 December 2018. The hearing was conducted with the assistance of an accredited interpreter in the Spanish and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.

18. At hearing two witnesses gave evidence: a [relative Mr B]; a work manager Mr [C]. Mr [C] gave a character reference for the applicant, and other character references have been provided to the Tribunal and Department. I have given appropriate weight to the character references in my consideration of the applicant’s narrative and evidence.

19. At the start of the hearing I asked the applicant whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. Mr [C]’s evidence was that the applicant was a good and reliable worker. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.  

    Assessment of claims: credibility

20. The applicant claims to be a national of El Salvador. He provided a copy of his El Salvador passport to the Department. The passport is expired but at hearing he stated he was in the process of getting a new passport. All the available evidence, including the applicant’s oral evidence and familiarity with El Salvador, supports his claim to be an El Salvador national. El Salvador is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity.

    The occurrence on Saturday [date] April 2015

21. The applicant’s narrative is centred on his fear of harm from some gang members who demanded money and threatened to kill him and his family. However, his account of the gang members’ demands and his interactions with them raise credibility concerns.

22. First, he has given changeable evidence about the initial demands made by the gang members. At hearing he stated that a gang member phoned him two to four days before [date] April 2015 and demanded money, and then during a confrontation on Saturday [date] April 2015 with two members they said he had been given sufficient time to get the money earlier demanded. I queried whether the gang member who phoned had demanded a certain sum, and the applicant responded that the member had been very specific during the phone call and asked for $US5,000. However, as discussed with him at hearing, in the delegate’s interview[2] he had said that he had been awaiting a second phone call- that never came- to find out exactly how much the gang member was demanding and in the phone call he had not been given a specific sum. The applicant merely responded he disagreed with the delegate and they had told him the amount they wanted. I acknowledge that a person’s evidence can change in some details over time and on different occasions. Nonetheless, the demands of gang members in April 2015 are at the centre of the applicant’s narrative and his changeable evidence about the demand first made in a phone call concerns a significant element of his story. His changeable evidence raises credibility concerns with his evidence and narrative.

    [2] See delegate’s decision (folio 205, 203), provided to the Tribunal by the applicant

23. Second, I find the police report ([Suburb] Police Station) of [date] April 2015 he provided to support his narrative to be unreliable, and his evidence about it raises concerns. He stated the day after the assault he went to the [Suburb] police station to self-report. At hearing he stated the assault by two members on Saturday had been ‘very quick’: he had been dragged from his car and thrown to the ground where he lay throughout, money in his wallet stolen, demands for $US5,000 made, and then the members quickly left. However, as discussed at hearing, in light of his account of the occurrence, the highly detailed information in the report is extraordinary. I pointed out details such as: Weapons used: one pistol, colour black, [number] mm; one gat hand gun, colour [deleted], [number]mm; General information of the offenders: Subject of [Gang]; [Nickname]; [gang name]; Height [deleted]; weight [deleted] approx.; eyes [colour]; [tattoos] on the face and arms; [clothes] [Brand name]. The applicant responded that: when he was pulled from the car, a member said his nickname was [Nickname] or maybe [Nickname]; there was a [tattoo] on the member’s face and so he guessed they were from [Gang]; everyone in El Salvador has black hair and dark skin. He then added that the police had basically asked for ‘yes/no’ answers and put in their own details such as: approximations for height and weight; and that [Gang] members always wear specific [clothes] such as [Brand name]; and the police put in [gang name] as they considered [Gang] is named [gang name] in that sector; and he remembered the colour of the guns and so the police put in the other gun details. In sum, at hearing the applicant explained many of the unlikely details in the report by claiming the police inserted those details, and this raises credibility concerns with the report.

24. I have additional concerns with the police report and the applicant’s evidence about it. The police report shows the reporting place was [Suburb] Police Station at eight hours ten minutes on [date] April 2015. However, as I pointed out at hearing, his evidence is that he attended the police station much later: he said he worked at [workplace] for four hours to 10am; it took an hour to drive back to his mother-in-law’s home; and the mother-in-law then argued with him to get him to go to the police; and after this argument they went to the police station. The applicant responded that: he had attended the police station at midday but the police put the wrong time in the report and would not change it; we all make errors and maybe the police had been under pressure and did not see the time. However, as I pointed out it is unlikely the police mistakenly put 8:10am as the time of the official report when in fact the report was prepared a significant time later- indeed after midday.

25. As well, the delegate’s decision[3] shows that at the delegate’s interview on 23 February 2016 when he was asked what time he went to the police station he stated he had attended the police station at 8am, and then when the delegate pointed out this was inconsistent with his earlier evidence about working to 10am he then spoke of the wrong time in the report and how he had in fact been there about midday. At hearing, when I discussed his changeable evidence given to the delegate he responded he had been confused with the pressure of the delegate’s interview but then remembered the exact time he had attended at the station. However, his trip to the police station is a significant event in his story and it is difficult to accept that at the delegate’s interview he became so confused that he gave the time of the trip as the same time shown on the report when instead it was much later.

    [3] See delegate’s decision (folio 202), provided to the Tribunal by the applicant

26. In sum, the applicant’s explanation that he self-reported to the police the next day and he did not give exact details to the police, but rather, the police were responsible for some assumptions and great detail in the report, leads me to consider the report is unreliable. Other concerns are that the time on the report of 8:10am is inconsistent with the applicant’s evidence about his movements that morning; and the applicant’s tailoring of his evidence at the delegate’s interview when the inconsistent evidence was pointed out. In light of these credibility concerns I place no weight on the report as corroboration of the applicant’s story.

27. Third, the applicant’s story of being threatened by an unidentified man on Monday [date] April 2015 is not credible. In his narrative he worked on Monday, and when he returned to the mother-in-law’s area and parked his vehicle, he was approached by an unidentified man who stopped him and demanded he leave the area but leave the wife and child behind because the wife was from that suburb and in the past had been the man’s intended wife; when he later discussed this with the wife she denied knowing any such man. As he stated in the application, “We went to live at my mother-in-law’s house, but we were also unsafe as a gang member wanted my wife as his woman, and in El Salvador when a gang member wants a woman he will kill anyone that stands in their way.” In his narrative, the occurrence on Monday was unrelated to the earlier gang occurrence, and indeed, there would have been no need for the gang to make up such an odd story in order to stage a threatening confrontation. When I discussed this claim with the applicant at hearing he responded that he cannot control the situation and such situations happen at random. But as I put to the applicant at hearing, it is difficult to accept that just at the time he and the family fled his home and stayed at the distant mother-in-law’s home for safety, for the first time and unexpectedly a stranger made a threat concerning his wife and this led him to decide that the mother-in-law’s home and suburb/town were unsafe. In sum, I find unconvincing his story and evidence about the confrontation.

28. Fourth, in the applicant’s narrative, the gang members had threatened to “kill each and every member of my family” if he did not pay the money demanded and if he went to the police. This serious threat caused him to flee and take his wife and child to the distant mother-in-law’s home. But as discussed at hearing, in light of the serious threat to his whole family and his action in fleeing from home, it is difficult to accept that he left his mother and [siblings] at home where they were easily locatable and could be readily threatened and harmed.

29. As well, as discussed at hearing, despite all of these gang member threats, in his narrative no family member was ever harmed. Indeed, he had fled home on Saturday [date] April 2015 and then hid at the mother-in-law’s home until Monday [date] April; he had not sought to contact the gang members about their demands and did not answer their phone calls; he had gone to the police (and he claimed this would come to the gang’s attention); the gang members had continued to threaten the mother and [siblings] in his absence; and he and his immediate family departed the country on Tuesday [date] April in secret and without addressing the gang members’ demands. Yet despite all of these actions, and despite his absence from the country, the applicant’s mother and [siblings] remained living at home and were never harmed. The applicant responded at hearing with conjecture that maybe the gang wanted him to join the gang and they knew he did not have $5,000 and used the demand for money as a ruse. He conjectured they may have done this as he was a [occupation] at [workplace] and could assist them to transport drugs. However, his conjecture does not convincingly explain either why, in his narrative, the gang members did not just make this their sole demand in their claimed interactions with him, or why they never sought to harm in any way the mother and [siblings], even in an attempt to pressure him or subsequently as retribution.  

30. At hearing, the applicant stated he wanted his [relative Mr B] to give evidence about what the applicant had told the [relative] about the occurrences before he departed. The [relative] stated he had been very worried when the applicant’s application had been refused, and so he travelled to El Salvador where he approached [Organisation]. Key points of the [Organisation] report dated 4 April 2017 show that the [relative] stated:

    ·On [date] April 2015 the applicant “due to the fact of being subject to blackmail and stalking by gang members operating in the area, had no option but to leave his house…and to emigrate to Australia with the help of family members”.

    ·Owing to lack of security the applicant could not file a report to the National Public Prosecutors office, or return.

    ·The informant reported this “with the purpose that this document may support the migration process being carried out in Australia”.

31. However, as discussed at hearing, the [relative] was resident in Australia in 2015 and did not witness the claimed occurrences, and at best his evidence is hearsay that merely repeats what he has been told by the applicant. The report briefly and in a broad way sets out what the [relative] said to the [Organisation] and acknowledges this had been done to support the applicant’s ‘migration process’. In sum, the [relative]’s evidence to the [Organisation] and then to the Tribunal is at best hearsay as told to him by the applicant and has the character of evidence given to assist the applicant with this application, and is unconvincing, and this leads me to give the [relative]’s evidence and the [Organisation] report no weight.  

1. As discussed at hearing, other circumstances reinforce my credibility concerns with the applicant and his narrative.

2. The delegate’s decision[4] shows that at the delegate’s interview on 23 February 2016 the applicant claimed that as a result of the occurrences from [date] to [date] April 2015, in the evening of Monday [date] April he decided to purchase airline tickets (using his debit card and [discount]) for a departure the next day on Tuesday [date] April 2015. However, his Australian visa had been granted on 24 March 2015, and bank statements he later provided to the Department show he in fact made payments for the family’s travel on [date] April 2015. At the delegate’s interview he did not claim that he made the travel arrangements because of the first phone threat. In response at hearing he stated he had been nervous and confused at the interview and he had meant to say that on [date] April he booked the travel and on [date] April he decided he would not return to El Salvador. I have considered but do not accept his explanation as the delegate’s decision shows his evidence had been that he purchased the airline tickets to speedily depart the next day. The applicant was making arrangements to travel to Australia some weeks before the claimed gang threats (when he applied for and was granted an Australian visa) and he had organised his actual travel two days before the claimed occurrence on [date] April 2015. As I put to him at hearing, it is difficult to accept that just before his planned departure for Australia he has problems with gang members that cause him to fear to return. As well, the changeable evidence he has given about when he made his travel arrangements causes me concerns with his credibility as a witness.

   [4] See delegate’s decision (folio 200), provided to the Tribunal by the applicant

3. The delegate’s decision[5] shows that at the delegate’s interview on 23 February 2016 the applicant stated that in May 2015 his mother and a [sibling] travelled to [Country 1] for a holiday. I pointed out their holiday trip and return does not support his narrative of the family being threatened with harm. He responded that he does not know exactly why they returned but they did not want to unlawfully stay in [Country 1] and the mother cares for the grandmother. Nonetheless, I find the relatives’ trip and return within a few weeks of the claimed occurrences does not support his narrative and his claims of the family being threatened with harm.

   [5] See delegate’s decision (folio 197), provided to the Tribunal by the applicant

4. The delegate’s decision[6] shows that at the delegate’s interview on 23 February 2016 the delegate and applicant discussed the mother’s travel to Australia in August 2015. The mother and [siblings] had all been granted Australian [temporary] visas but only the mother travelled to Australia for a stay from August to November 2015. When I discussed this at hearing he responded that the [siblings] could not afford to travel, and then added a [sibling] had later gone to [Country 1] out of fear; and the mother cared for the grandmother and on departing Australia [s/he] had to pick up the grandmother from [Country 1] where the grandmother had been holidaying and they both returned to El Salvador. However, the applicant’s explanations are not convincing as his evidence shows that several close family members had been able to afford travel to and from El Salvador soon after the claimed occurrences, and the [siblings] applied for Australian visas ostensibly in the knowledge of their financial circumstances, and the applicant also provided evidence of the family in Australia sending remittances to the family in El Salvador to assist with travel. In sum, the mother’s trip to Australia just a few months after the claimed occurrences and then return to El Salvador via [Country 1] to pick up the grandmother does not support his narrative and claims of the family being threatened with harm.

   [6] See delegate’s decision (folio 197), provided to the Tribunal by the applicant

5. Also discussed at hearing, in his application he stated he had never had a visa application refused. The delegate’s decision[7] shows that at the delegate’s interview on 23 February 2016 the applicant again said no, before adding he had been told by the [Country 1] Consul in Perth in about October 2015 that they were not granting [temporary] visas. The delegate then pointed out he had a [Country 1] [temporary] visa application refused in January 2015. At hearing the applicant responded he had not listed that visa refusal because he did not want it to impact on his application for a Protection visa. However, as I pointed out to him at hearing, he was aware he was required to tell the truth in his application and at interview and his deliberate omission causes me concerns with his credibility as a witness.  

   [7] See delegate’s decision (folio 207), provided to the Tribunal by the applicant

6. In sum, my strong credibility concerns with the applicant’s narrative and evidence lead me to reject his narrative. I find that he has concocted all of his claims about being threatened by gang members before he departed for Australia. I find he is not a witness of truth. After considering his claims and evidence including his evidence at my hearing and the documentary evidence he provided, I do not accept that:

   ·In April 2015 a gang demanded he pay money to them or join the gang.

   ·The gang’s demand for $US5,000 was a ruse because they wanted him to work for them at [workplace] assisting them to transport drugs.

   ·On Saturday [date] April 2015 as he drove from his house’s driveway he was stopped by two men who stood in front of his vehicle with drawn guns. They took $US500 from him and demanded $US5,000 within 24 hours.

   ·The applicant, his wife and child drove to the mother-in-law’s house to stay overnight. He nonetheless went to work on Sunday for four hours, finished work around 10am, returned to the mother-in-law’s house, and they then genuinely reported the matter to the police.

   ·On Monday [date] April 2015 when he returned to the mother-in-law’s house from work an unidentified man stopped him and demanded he leave the area but leave the wife and child behind because the wife was from that suburb and in the past had been the man’s intended wife.  The wife denied knowing any such man.

   ·All of this led them to flee the country.

   ·The gang members continue to ask about his whereabouts.

   ·A [sibling] went to [Country 1] out of fear.

   Conclusion

7. Having considered the claims and evidence I find that the applicant is an El Salvador national. He is a mature, single male who has been working in Australia. At my hearing he stated he was in the process of getting a fresh El Salvador passport to replace the expired passport. He will be able to travel to and enter El Salvador without difficulties, and live in San Salvador where he has close family.

8. I do not accept either that the applicant departed El Salvador so as to escape feared harm (such as threats, intimidation, physical or other harm) from gang members there, or that he now fears to return to El Salvador for the reasons he has given. I acknowledge that country information shows there is crime including gang violence in El Salvador, but as I discussed at hearing, conditions in El Salvador are faced by the whole population, and I do not accept there is a real chance or a real risk he will face real harm or significant harm now and in the foreseeable future in El Salvador.

   Refugee criterion

9. In light of the above assessment, the Tribunal finds that in El Salvador the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in El Salvador the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

   Complementary protection

10. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to El Salvador, there is a real risk that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to El Salvador, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to El Salvador.

    Overall Conclusion

11. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

12. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. 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).

    Secondary applicants

14. The Tribunal is satisfied from the circumstances set out above that the secondary applicants are not in Australia. Therefore, the secondary applicants do not satisfy the requirements of s.36(2) and cannot be granted Protection visas.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Protection visas.

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

Refugee

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. 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 themself 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).

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.  

Complementary protection

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.