1707469 (Refugee)

[2018] AATA 583

1707469 (Refugee) [2018] AATA 583 (16 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707469

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:16 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2018 at 10:31am

CATCHWORDS
Refugee – Protection visa – Malaysia – Gangs – Gambling – Illegal Gambling

LEGISLATION
Migration Act 1958, s.36, s.5J, s.65
Migration Regulations 1994, Schedule 2

CASES
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his late [age] from Johor Bahru, Malaysia.

2. The applicant arrived in Australia [in] August 2016, as the holder of [a temporary visa]. He applied for a Protection (Class XA) visa on [in] November 2016. [In] March 2017, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on17January 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

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

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims that he was involved in gang activity in Malaysia, and came to Australia in order to make a fresh start. He has variously claimed that his assaulted and threatened him when they learned that he plan to leave; and that a different gang targeted him as a suspected police informant. He fears that the rival gang will target him if he returns to Malaysia and, more generally, that he will be drawn back into gang activities. 

   Background

8. The applicant is a [age] old man from Johor Bahru, Malaysia. He is a Malay Muslim, and a speaker of Malay only.

9. The applicant indicated on his protection visa application form that he lived in the family home in Johor Bahru until December 2015. At hearing, he said that he then lived in Selangor, for about six months before coming to Australia.

10. The applicant attended primary and secondary school in Johor Bahru, up to the end of [year]. He gave no details of past employment. At hearing, he said that he worked with some friends in their business. Initially, he worked for three years as [an occupation in a business]. From that time until late 2015, he worked during the day as [a different occupation] in a kind of [workplace] named ‘[name]’, where [details deleted]. He also worked in the evening, in an illegal gambling den at the back of the [business], doing similar work. He also told the Tribunal that from time to time, he engaged in illegal activities.  

11. The applicant is the [one of several children], and is in contact with his parents and siblings in Malaysia. One [brother] is working in [another country]. The others work in [other] sectors, and some [have] home duties.

12. The applicant holds a Malaysian passport issued [in] 2016, a full copy of which is on the Department file.

    Evidence

13. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged [in] November 2016.

    §  Identity documents: - the applicant provided to the Department a full photocopy of his Malaysian passport, issued [in] 2016.

    §  The applicant’s protection claims are set out in handwritten comments on the application form.

    §  There was no protection visa interview (‘Department interview’) in this matter.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [date] March 2017.

    §  Review application form.

14. The applicant appeared before the Tribunal on 17 January 2018, to give evidence and present arguments. The hearing was conducted via video link between the Tribunal’s Sydney office and [location], with the assistance of an interpreter in the Malay and English languages. The applicant is not represented in this matter, and did not present any witnesses.

    Receiving country

15. The applicant claims that he is a national of Malaysia. He speaks Malay, has provided a copy of his Malaysian passport, and showed his familiarity with the country. The Tribunal is satisfied that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

16. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

17. In his written protection visa application, the applicant stated that he needed protection because he had been involved in a gang, and they threatened to harm him when he tried to leave. He confirmed to the Tribunal that a friend had helped him complete the form, and he had taken care to ensure its accuracy. In his oral evidence, the applicant gave brief responses to the Tribunal’s questions, and on occasions, appeared candid in giving details of his past criminal activities. The picture that emerged during the course of the hearing differed in significant respects from his brief, written statements – for instance, about the identity of his alleged persecutors; what triggered their adverse interest in him; the incidents that occurred in Malaysia; and the nature of the specific threats that caused him to leave.

18. Overall, the Tribunal formed the impression that the applicant was drawing to some extent on his past experiences, but that the details of his claims and alleged fears were not entirely reliable. The Tribunal’s full assessment follows below.

    Involvement with gangs/criminals

19. In his protection visa application, the applicant wrote that he joined [Gang A] many years earlier. As he grew older, he decided to leave the gang and start a new life for himself, perhaps starting a family. His troubles started when he told the gang leader that he wanted to quit.

20. At hearing, the applicant said that when he was about [age] years old (hence, in around 2011), he started working in a Chinese-owned business named [name]. He described this as his ‘friend’s place’, but when pressed for details, gave a Malaysian name and suggested that his friend was a fellow worker, rather than the owner or operator of the business. The applicant could not recall the address or telephone number of the business, only its general [location]. He was not sure whether it is still operating.  

21. The applicant said that, during the day, he worked [in another occupation] in the [business], where [details deleted]. At the back of the premises was an unregistered gambling business, which he described as a ‘secret room’. The applicant said he often worked in the gambling den at night, in a similar role to his daytime job, namely as [an occupation]. He continued this work until around August 2015.

22. The applicant claimed that, while he was working at [the business], he met some people involved in [Gang B], and fell under their bad influence. From this time, he occasionally participated in their criminal activities, like selling drugs or stealing cars. Usually, he just did this to earn some extra cash, although sometimes he was using recreational drugs.

    §   The applicant said that when he was [age] (hence, around 2012), the police arrested him in connection with the theft of a motorcycle. He was held on remand for about three weeks. A friend posted bail, and ultimately the applicant was found not guilty, for lack of evidence. (He did not make entirely clear whether the charges were dropped, or whether the case proceeded to trial.)

    §   The applicant said that, after this experience, he continued working at [the business], and did not have any more trouble with the police. He continued socialising with his friends, and was still involved in some of their activities (including illegal ones). However, he appeared to say that he also tried to keep some distance from them, in avoid police trouble. His friends in [Gang B] seemed upset, but they still remained friends.

23. In response to the Tribunal’s questions, the applicant confirmed that he did not have any consequent problems with his friends from the [Gang B], and they remained on good terms.

24. Assessment: The Tribunal has found numerous country references indicating that there are almost 50 recognised gangs in Malaysia, with reportedly more than 40,000 members. These groups include [Chinese] triads that reputedly control illegal gaming and other activities in Malaysia.[1] The Tribunal has taken this information into account in its assessment of the applicant’s claims.

    [1] [Source deleted].  

25. The Tribunal has found both strong and weak points in the applicant’s claims to have been associated with one particular gang, the [Gang B]. On the plus side, it considers the applicant’s account of his work in a gambling den, his contacts with gang members and his occasional criminal activities to be generally unembellished and credible. On the other hand, as noted at hearing, it is troubled by the discrepancy between the applicant’s (brief) written claim that he was a member of [Gang A], and fears persecution from them for having tried to leave that gang; and his oral evidence that he was actually a member of a different gang, the [Gang B]. It also found the applicant’s knowledge of the claimed premises of the [business] and secret gambling den – such as the address, telephone number and other details – to be surprisingly vague for someone who claims to have worked there for about five years.

26. Having regard to all the evidence before it, the Tribunal accepts that the applicant worked in [a business] that also served as an illegal gambling den, as [an occupation]. The Tribunal does not accept that the applicant actually joined the [Gang B] or any gang, but it accepts that he associated with some of them, and engaged in some criminal activities, such as drug dealing and theft. It finds that he was at the periphery of these activities. The Tribunal accepts that he was arrested in 2012, on suspicion of being involved in the theft of a motorcycle, and that charges were dropped due to lack of evidence. The Tribunal finds that after his arrest and detention, the applicant continued working in the [business], but kept some distance from gang members.    

    Threats of harm

27. The applicant claimed in his protection visa application that after he told [Gang A] of his plans to leave them, the boss told him that he had violated their rules. The written claims do not make it entirely clear whether he was claiming to have actually left the gang, to their chagrin; or whether they refused to let him go (and instead, gave him the ‘dirty work’ to do). The applicant claimed that [Gang A] members, his former associates, came to his home and assaulted him with [sticks]; they ‘broke’ his car; they disturbed him at work, resulting in him losing his job; and they issued death threats via messages to his family.

28. The applicant said that he left Malaysia in mid-2016 - hence some four years after his detention in 2012 - in the hope of making a fresh start, and to have a safe future. He added, however, that he fears that the gangs will suspect him of having been a police informant, and target him on his return to Malaysia.

29. At hearing, the applicant claimed that he was actually a member of the [Gang B] (the Tribunal has found above that he associated with them, but was not a member). While he reduced his involvement with them after his arrest in 2012, he remained on good terms with his friends.

30. However, he indicated that [Gang A], an associated gang, suspected that he had acted as a police informant during his detention in 2012. The applicant explained that the Gang is part of the [main] criminal organisation, headed by a Chinese man known as ‘Jimmy’. One of these gangs is [Gang A], who sometimes worked together with the [Gang B] on robberies and similar crimes.

31. The applicant claims to have learned from a friend that [Gang A] suspected him of having cooperated with the police while he was in detention back in 2012, in order to secure his early release. In later evidence, the applicant said that his friend told him this in about November 2015, a month before he moved to Selangor. He told the Tribunal that he had indeed cooperated with the police back in 2012, although he only gave them a little information (he implied that it was neither a large amount, nor significant). He intimated that [Gang A] suspected or knew of this, and were intent on punishing him. They thought that his own gang, [Gang B], had been too lenient with him.

32. The Tribunal had difficulty establishing when it was that [Gang A] started looking for the applicant, or the exact trigger. At some points during the hearing, the applicant appeared to be stating that they targeted him after he left jail – implying that it was from around 2012. At other points, he said that they started looking for him around November 2015.

    §  As for his ability to evade [Gang A] members – whether over a period of several years, or for one month – the applicant said that ‘the boss’ (implicitly, of the [business]) liked him. While the applicant continued to work at [the business], a cashier used to warn him when [Gang A] members were approaching the premises, and he slipped out the back to avoid them. 

33. The applicant told the Tribunal that there on no occasion did members of [Gang A] or others assault him with [sticks] or physically harm him. As for the statement in his application form that ‘they used to beat me using [a] stick’, he thought that must have been a misunderstanding.

34. During the course of the discussion, the applicant appeared to recognise some of his written claims, and provided some comments:

    §   He said that on one occasion, someone broke the mirror (or rear window) of his car. He believes that [Gang A] members caused that damage, as his own friends had no conflict with him. The applicant said that he did not have any receipts, photographs or associated paperwork (such as insurance documents) relating to the damage to his car, and no one had left a message claiming responsibility. The applicant added that this had occurred after his release from prison, hence around 2012.

    §   As for the reference to being disturbed at work, the applicant said that this referred to the period around October/November 2015, after he had learned of the [Gang A]’ interest in him. He implied that, after learning that [Gang A] members were after him, the evasive action that he took while on duty at the gambling den basically made his continued work there untenable.

    §   In relation to the claims about his home and family, the applicant said that [Gang A] came looking for him at his home. In around 2013, a large person with long hair came by the family home looking for him, acting very aggressively. He believes this was a [Gang A] member. At the time, the applicant was doing the night shift at the [business]. In response to the Tribunal’s questions, the applicant confirmed that he had been living in his family home at the time, and continued to live there for another two years, without incident.   

35. The applicant wrote that he filed a report with the police. The police have been unable to tackle the gang (it is not clear whether the applicant is referring to police action in response to his complaint, or more generally, the police inability to close the gang down). After he sought police protection, the gang threatened to kill the applicant and his family. The applicant added that he does not believe the police protection would be available in the future; they do not place a priority on his case, as they consider that the applicant himself is to blame for his problems. The applicant did not mention this at the hearing; indeed, his evidence strongly suggested that he would not have approached the police to seek help with any problems related to his employment or any gangs.

36. The applicant also wrote that he moved to Kuala Lumpur, where he worked. But within a week, [Gang A] found him. He confirmed at hearing that he moved to Selangor (near Kuala Lumpur) in late 2015, but said that there had been no contact from [Gang A] members. Again, there was no suggestion of this at the hearing.

37. Assessment: The Tribunal finds the applicant’s claims to have been pursued by gang members problematic.

38. First, his written claims specifically stated that his own gang (he called them [Gang A]) was going after him because of his wish to leave it – in stark contrast to his oral evidence that he actually fears harm from a different gang, because he is a suspected police informant. Even if the applicant relied on a friend to complete the form on his behalf, this is a fundamental claim, and it is difficult to imagine how it was incorrectly recorded.

39. Second, the Tribunal found the applicant’s evidence about what triggered [Gang A’s] adverse interest in him, and when that occurred, to be confused and changeable.

    §  At some points, he appeared to link it to his arrest and three-week detention in 2013, when the gangs (his own and [Gang A]) came to suspect that he acted as an informant to the police, in return for lenient treatment. He said that they came looking for him for about a month. He also believed that [Gang A] were responsible for his smashed car mirror (or car rear window), which occurred shortly after his release from prison.

    §  On other occasions, he suggested that [Gang A] were searching for him much later. He that his friend warned him that [Gang A] were looking for him as a suspected police informant, in the second half of 2015. He remained working at the [business] for about a month, during which he had to be vigilant, and rely on a co-worker to warn him when any suspected [Gang A] members were approaching the [business]. This was unsustainable, and prompted him to move to Selangor.

40. Third, the Tribunal confirmed with the applicant that he lived in the family home and working at the [business], until late 2015, when he moved to Selangor. The applicant claimed that, on one occasion in 2013, a suspected [Gang A] member came to his family home, in a menacing way. The applicant could not confirm this person’s identity; the person apparently said nothing; and in the intervening period of more than two years, the applicant remained living in the family home and working at [the business], without specific incidents of harm or threats.

41. The Tribunal accepts the applicant’s claims that his friends from [Gang B] were unhappy when he distanced himself a bit from their activities, but they remained on good terms with him.

42. The Tribunal does not accept that members of [Gang A] targeted the applicant, on suspicion that he had acted as a police informant in 2012, or that he might do so in the future.

    §   It does not accept the claims in the applicant’s written statements, which he has largely disavowed – that they assaulted him with [sticks], beat him ‘every day’, ‘destroyed’ his car, or threatened to kill him or his family.

    §   In relation to the claims that the applicant presented at the hearing, the Tribunal accepts that the applicant was drawing to some extent on his past experiences, such as an occasion when a car mirror or window was smashed 2013, although he has no details of the perpetrators (only suspicions). The Tribunal does not accept that any such incident was related to the applicant’s protection claims, including his arrest and detention in 2012, or any adverse attention from gangs. The Tribunal finds that the applicant continued living in his family home, and working at [the business], without significant incident and without fear of harm from [Gang A] or any other gang or criminals. The Tribunal does not accept that a suspected gang member called on his family home one time in 2013, when he was working late.

    §   The Tribunal does not accept that there was any associated harm, or fear of harm, that led the applicant to move to Selangor for about six months, and from there to Australia. The Tribunal also does not accept the applicant’s written claim that he went to Kuala Lumpur (which is near Selangor), but realised that he was still in harm’s way because the gang members found him there after one week.

    §   The applicant wrote in his protection visa application that he sought police protection, but they declined to take his case seriously, because they considered he was to blame for his own misfortune. In light of the above findings, the Tribunal concludes that the applicant did not need protection – from the gang that he was loosely associated with, or any other criminals – and that he did not go to the police. 

    Departure from Malaysia

1. The applicant wrote in his protection visa application that he left Malaysia, because his gang had pursued him after he left them, and have vowed to find and harm him. As noted above, the applicant stated at hearing that this claim was incorrect. The Tribunal also does not accept that members of [Gang A] were pursuing the applicant as a result of his detention for three weeks in 2012 (and suspected role as a police informant), or for any other reason. The Tribunal finds that the applicant did not fear harm from any gang or criminals he was associated with, and did not leave Malaysia for that reason.

2. At hearing, the applicant stated that he left Malaysia in the hope of being able to make a fresh start, and start making an honest living. He has been working on farms in Australia. Towards the end of the hearing, he said that he has not had contact with his former associates since arriving in Australia. He said that he was worried about that (implying that their silence could be ominous). However, the Tribunal finds that his main concern is that he is not sure about his future prospects if he goes back to Malaysia, and is keen to avoid falling into such company again.

   Summary of findings

3. The Tribunal finds that the applicant worked in a Chinese-run [business] and gambling den, where he befriended some gang members and was involved in some illegal activities such as drug dealing and theft, which included an arrest in 2012. The Tribunal finds that the applicant is keen to leave this life behind, and find new opportunities in Australia. The Tribunal does not accept that the applicant was a member of a gang, and pursued when he tried to leave them. It also does not accept that another gang targeted him because he was a suspected police informant. It rejects the various claims of past harm that the applicant has presented, including that gang members assaulted him, ‘destroyed’ his car, threatened to kill him or his family, or that they demonstrated their adverse interest in him by threatening and menacing him. The Tribunal finds that the applicant departed Johor Bahru for Selangor, and later left for Australia, in order to make a fresh start away from his former associates.

   ASSESSMENT: REFUGEE CRITERION

4. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors, including his future conduct there is a real chance of him experiencing serious harm amounting to persecution for any of the reasons enumerated in s.5J(1), if he returns to Malaysia.

5. The Tribunal has found above that the applicant has not been subject to serious harm amounting to persecution at the hands of any gang members, for any reason. It accepts that the police detained for his suspected involvement in the theft of a motorcycle, but by the applicant’s own evidence, he was released on bail after three weeks and was not convicted of any offence (for lack of evidence). The Tribunal finds that this did not involve persecution within the meaning of s.5J(1), as the essential and significant reason for the detention was not one of the five grounds set out in s.5J(1)(a), as required by s.5J(4)(a), but rather his detention due to suspected criminal activity, in accordance with Malaysian criminal law. There is no evidence of its selective or discriminatory enforcement in respect of the applicant. While the Tribunal notes that detention may involve serious harm to the person (s.5J(4)(b)), depending on the circumstances and consequences of the detention, and the nature and gravity of the loss of liberty[2], given the findings above, it is not necessary for the Tribunal to assess it in this particular case.

   [2] As per the High Court’s consideration of this in: MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ at [45], Gageler J agreeing.

6. The Tribunal finds that no gang has an ongoing adverse interest in the applicant, including for reason of his wish to leave a gang, or because he is a suspected police informant. It concludes that he does not face a real chance of serious harm amounting to persecution from gangs or other criminals, for any reason, if he returns to Malaysia. In these circumstances, the Tribunal does not need to assess whether the essential and significant reason for the feared harm is one or more of the reasons enumerated in s.5J(1)(a).[3]

   [3] For instance, whether there is a well-founded fear of persecution for reason of the applicant’s membership of a putative particular social group based, for instance, on his status as a former gang member (which the Tribunal has found he is not); or as a (suspected) police informant; or whether the State might withhold protection from such harm, on a selective and discriminatory basis, such as his status as a former gang member.

7. The Tribunal accepts that the applicant has some concerns about his future prospects if he returns to Malaysia, especially whether he can find gainful employment away from criminal elements. The Tribunal is not satisfied, however, that any such concerns give rise to a real chance of persecution for one or more of the reasons set out in s.5J(1)(a). First, the applicant’s prospects will depend in large part on his own choices, just as he lived in Selangor for almost six months without incident, before coming to Australia. Second, the underlying concern appears to be Malaysia’s economic and security environment (including its law and order), which does not involve systematic and discriminatory conduct (s.5J(4)(c)), or serious harm (s.5j(4)(b)), or an of the five relevant grounds (s.5J(4)(a)). Finally, the Tribunal does not accept that the applicant’s past experiences or profile are such that he faces a real chance of discrimination amounting to serious harm, in fields such as employment, accommodation or other basic needs.

8. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia.

9. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

10. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

11. As the Tribunal has found above, the applicant has been involved in some criminal groups and activities, but there are no gangs or individuals who intend to target him on his return to Malaysia. Similarly, although the police detained him on suspected criminal offences in 2012, there is no evidence that he has any lasting effects or profile as a result of this. The Tribunal notes the applicant’s underlying concern that Malaysia faces economic, security and perhaps law and order issues (including gang activity). However, the Tribunal is not satisfied that he faces a real risk of significant harm, as an individual returning to Malaysia (and even taking into account his own past criminal dealings). The Tribunal considers that the risks arising from these general conditions do not amount to a real risk of significant harm; and in any event, they are faced by the population of Malaysia generally, and not the applicant personally: s.36(2B)(c).

12. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Malaysia.    

13. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

14. The Tribunal is therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    CONCLUSION

15. 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).

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.

    James Silva
    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.

    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, which are extracted in the attachment to this decision.

    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

    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.