1714585 (Refugee)

[2022] AATA 885

1714585 (Refugee) [2022] AATA 885 (15 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714585

COUNTRY OF REFERENCE:                   Tanzania

MEMBER:Paul Noonan

DATE:15 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2022 at 1:37pm

SECTION 417 REFERRAL: The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in departmental policy 'Minister's guidelines on ministerial powers (s351, s417 and s501J)' and will refer the matter to the Department.

CATCHWORDS

REFUGEE – protection visa – Tanzania – particular social group – homosexual man – threats and beatings – forced marriage – credibility – undisclosed relationship, employment, visa and travel history – wife and children’s visa application suggested ongoing relationship at the time – claims on ground of sexuality withdrawn at hearing – one attack by gang for unknown reason – new, inter-religious relationship with Australian citizen and birth of child – strong compassionate circumstances – hardship to partner and best interests of child – Ministerial intervention requested  – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), 65, 91R, 351, 417, 424A, 438, 501J

Migration Regulations 1994 (Cth), Schedule 2

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Tanzania, applied for the visa on 15 August 2014 and the delegate refused to grant the visa on 27 June 2017. On the basis of the applicant’s identifying documents on file including his Tanzanian passport and the acceptance of the applicant’s identity by the delegate, the Tribunal accepts the applicant’s identity as claimed and has assessed his claims against Tanzania.

3. The applicant appeared before the Tribunal on 10 November 2021 to give evidence and present arguments. The hearings were conducted by video hearing. The Tribunal exercised its discretion to hold the hearing via video hearing due to the ongoing in person restrictions in place in Melbourne due to the COVID-19 pandemic, and determined it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant, including that he is legally represented. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. The representative attended the Tribunal hearings. The Tribunal also received oral evidence from the applicant’s spouse, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

4. The applicant was represented in relation to the review and the representative attended the Tribunal hearing.

   RELEVANT LAW

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

   Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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

19. 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. There are no DFAT country information reports with respect to Tanzania.

    The applicant’s written claims for protection

20. The applicant wrote in his protection claim (in summary) that:

    ·He fears harm in Tanzania because of his sexuality as he is homosexual. He stated that in Tanzania he has been beaten and had his life threatened because of his sexuality and he fears that if he returns to Tanzania he will be beaten and killed. His wife has told him that people continue to threaten that if they find him, they will kill him. The authorities will not protect him because the Janjawidi have support within the authorities. Accompanying his application, the applicant provided a written statement in which he stated that although he has had two relationships with women, he is homosexual. He was beaten on three occasions because of his sexuality and on one occasion his partner was beaten so badly that he died.

    ·The applicant stated that he was married to [Ms B] and he has a [child] with her, but they separated in 2013. He was also previously married to another woman, [Ms C], which ended in 2009. He engaged in homosexual activity from the time he was 16 with two other boys in Zanzibar where he grew up. One night in 1999 or 2000 he and the other two boys were attacked by members of the Janjawidi who are a gang that operate on behalf of the government. After this he continued to have sex with the other two boys until they were about 21, when one moved to [Country 1] with his family and the other moved to [Country 2].

    ·When he was 23, his step-parents forced him to marry a woman by arranged marriage. They threatened to kick him out of home if he did not agree, so he did so. He was married for about three years. Two and half years into his first marriage he had an affair with a man for about two months. The man was angry when the applicant ended the affair. He blames this man for a subsequent attack on him when he was assaulted while sunbathing on the beach. He was in pain after the attack and went to [Country 3] and had an operation on his genitals where he had been kicked. Three months later he separated from his wife.

    ·Six months later he resumed a relationship with his teenage lover [Mr D], who had returned from England. They were very discreet and did not go out in public. After two and half years of this relationship, he was assaulted in an attack by a group of men while on a walk with [Mr D]. They were assaulted and he broke free and ran. [Mr D] was badly injured and later died in hospital from his injuries. After this, he moved to Tanga and out of Zanzibar, where he met a woman called [Ms B]. He started living with her and began a sexual relationship with her. He lived with her for a year and then was travelling when he found out [Ms B] was pregnant and had resumed living with her former husband. He had a fight with [Ms B], and she got angry and told him not to come back. He then returned to Zanzibar because time had passed, and he thought it would be okay. After three months a group of men came to his house and threatened him. He ran away and booked into a hotel. He then organised with a [Country 4] man for a ticket and visa to attend [an event] in Australia for a fee. In Australia he is nervous about being open about his sexuality.

    Procedural history

21. The applicant arrived in Australia [in] July 2014 as the holder of a [specified] visa with an expiry date [in] August 2014. The applicant applied for a Protection (Class XA Subclass 866) visa and was granted a Bridging C (Class WC Subclass 030) visa. Prior to arriving in Australia, the applicant’s passport reflected prior travel to [Country 2], [Country 7], [Country 8] and [a specific region of Country 9], although he did not disclose this in his protection application. The applicant did disclose that he previously travelled to [Country 10] in 2006, [Country 3] in 2009, [Country 11] in 2010 and [Country 9] in 2012.

22. The delegate interviewed the applicant on 20 December 2016. On 27 June 2017 the delegate refused the applicant’s protection claim. The applicant applied for review with the Tribunal on 7 July 2017. The applicant has not supplied a copy of the delegate’s decision to the Tribunal. Accordingly, the Tribunal wrote to the applicant on 24 August 2021, prior to the Tribunal hearing, and put the following credibility concerns arising from the delegate’s decision to the applicant pursuant to s 424A of the Act:

    Dear [applicant name]

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [APPLICANT NAME]

    I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.
    
    The particulars of the information are contained in the Delegate of the Minister for Immigration and Border Protection (the Department) decision, dated 27 June 2017, to reject your claim for protection, which you have not supplied to the Tribunal. The following evidence contained within this decision is relevant to your review pursuant to section 424A of the Migration Act 1958.

    ·The delegate found that in October 2008 you had previously sought asylum in [Country 1] using a different identity, that is using a [Country 5] passport in the name of [Alias], born [date], and that you initially denied this in an interview with the delegate but then later agreed that you had done this.

    ·The delegate found that you agreed that you have also previously entered [Country 6] on a false [Country 5] passport.

    ·The delegate found that you agreed that you have been previously convicted in [Country 1] of possession/use of a false instrument but that you had not disclosed this conviction in your application for protection.

    ·The delegate found that you did not fully and accurately disclose your travel history in your application for protection with the Department.

    ·The delegate found that you acknowledged that you lied about your reason for obtaining a [visa] to come to Australia.

    ·The delegate found that you provided vague and inconsistent evidence with respect to your employment history. That you did not supply any evidence with respect to your claimed employment history. The delegate did not accept your claimed employment history for these reasons.

    ·The delegate found that [Ms B] applied for a Visitor visa to Australia in 2014 for her and her [number] children. Further that notes on the system indicate that she is married and that she and the [children] are respectively your wife and children. The delegate found that this information suggests that your relationship with [Ms B] is ongoing and that you are not divorced and that she has not gone back to her husband as you speculated in the interview with the delegate. This calls into question your claim to be homosexual.

    ·The delegate found that in your protection application you listed your step-mother, who you claimed is deceased, but did not list living relatives such as your father who you inconsistently claimed you have no contact with but then that you provided details about your father’s subsequent children including listing them in your claim. The delegate found it concerning that you claimed some family members are deceased, then that you did not list relatives you claim are alive, but listed claimed deceased relatives or ones you do not communicate with. 

    ·The delegate found that you provided vague and unpersuasive evidence when responding to questions about your sexuality and your family and friends. Further, that you did not provide any evidence to support your claim to be homosexual or that you suffered persecution in Tanzania because of this, such as police reports, medical reports or evidence of the men you claim to have been in homosexual relationships with.

    This information is relevant to the review because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may lead the Tribunal to not accept that you are homosexual as claimed or that you have been or will be targeted for harm for this reason in Tanzania.

    This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. If we rely on this information in making our decision, we may not accept that you have a well-founded fear of persecution if you return to Tanzania or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Tanzania. 

    You are invited to give comments at the forthcoming hearing or respond to the above information in writing.

    Your written comments or response should be received by 7 September 2021.  If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 7 September 2021, you may ask us for an extension of time in which to provide the comments or response.  If you make such a request, it must be received by us by 7 September 2021 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your written comments or response within the period allowed or alternatively receive your comments at the scheduled hearing, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

    Yours sincerely

1. A written response to the Tribunal’s letter was not received by 7 September 2021 and a response was still not forthcoming as at the date of the hearing. The Tribunal notes that the original scheduled hearing of 10 September 2021 was rescheduled at the request of the applicant’s representative; this request was made on 7 September 2021.

2. Following the rescheduled hearing held on 10 November 2021, the Tribunal sent the following letter to the applicant:

   As discussed at hearing the Department of Immigration and Border Protection provided a certificate issued under s.438 of the Migration Act on 7 July 2017. The certificate states as follows and as put to the applicant at hearing and is signed by a Delegate of the Minister for Immigration and Border Protection:

   “I certify in accordance with paragraph 438(1 )(a) of the Migration Act 1958 (‘the Act’), that the disclosure of the information in folios 75-78 AND the matter contained in the documents in folios 75-78 of file [number] would be contrary to the public interest.

   The disclosure of this information would be contrary to the public interest because, folios 75-78 of file [number] contains documents or information that contains internal working documents.

   The Administrative Appeals Tribunal’s regard to and disclosure of this information or document(s) is subject to the provisions of subsections 438 (3) and (4) of the Act.”

   As indicated at hearing the Tribunal does not consider this certificate to be valid as it does not sufficiently specify the public interest reason for the non-disclosure as it has been established by the Federal Court that “internal working documents” is not a sufficient basis for public interest immunity as this does not disclose the basis of the claim itself.  The Tribunal considers the material generally positive in that it reflects that the applicant holds a valid Tanzanian passport. The examination of the authenticity of other documents related to the applicant’s identity is inconclusive and the Tribunal will give them no weight.

   As indicated at hearing the Tribunal now forwards a copy of the documents subject to the invalid certificate for your comment (if any).

   In addition, as indicated at the hearing, the Tribunal will afford an opportunity for any further submissions with respect to the applicant’s new claim made at hearing to fear harm for reason of his partner being Christian and himself being Muslim to be made within 14 days.

3. As at the date of the Tribunal’s decision in this matter no further correspondence or contact has been received by the Tribunal from either the applicant or his representative.

   The hearing

4. At the outset of the hearing the applicant’s representative stated that his client does not seek protection and concedes this as his circumstances have changed. He intends to apply for a spouse visa and/or to seek Ministerial Intervention for his client. He confirmed that his client no longer seeks to claim protection from Australia. He would like the Tribunal to consider making a recommendation for Ministerial Intervention due to the applicant’s current circumstances of having a partner and child in Australia. This is to try and avoid the time, cost and further uncertainty associated with applying for a spousal visa.

5. The Tribunal put to the applicant that it had sent a letter under s 424A with respect to credibility concerns contained within the delegate’s decision. The Tribunal put to the applicant that he has chosen not to respond to those concerns and now has indicated he is no longer pursuing his protection claims. As such this may also cause the Tribunal to doubt the credibility of his protection claims. The applicant stated that he did not wish to respond to the letter. The applicant stated that he resiles from his original claims for protection. The Tribunal asked the applicant to confirm whether he feared harm should he be required to return to Tanzania for reason of his sexuality. The applicant stated that he does not fear harm for reason of his sexuality. The applicant confirmed that he is not homosexual. The Tribunal asked the applicant if he fears harm for any other reason should he be required to return to Tanzania. The applicant stated that he does not.

6. The Tribunal asked the applicant if he has suffered harm in Tanzania in the past. The applicant stated that he has. He stated that the Janjawidi had attempted to harm him and his friend, however this was some years ago. He stated that the Janjawidi sought to harm him because they thought he was homosexual, but he no longer fears harm for this reason. He again confirmed that he is not and was not homosexual. The applicant confirmed that he has not suffered any other past harm in Tanzania.

7. The Tribunal discussed the non-disclosure certificate contained on the applicant’s file and indicated that it did not consider the certificate to be valid. The Tribunal then outlined the contents of the material subject to the non-disclosure certificate and noted that it considers the material is not adverse to the applicant’s case in any way. The applicant’s representative stated that they did not wish to make any submissions with respect to the non-disclosure certificate.

8. The Tribunal then discussed in greater detail the applicant’s claim of past harm with respect to the Janjawidi. The applicant stated this was around 2007 in Zanzibar. He was walking with his friend and was randomly attacked by these people. They did not say anything to him, they just tried to hit them. At that time there was a lot of unrest in Zanzibar. The applicant then stated that he does not really know the reason why he and his friend were attacked. He confirmed this was a once off attack that never reoccurred.

9. The Tribunal put to the applicant that the delegate had found that he had previously sought asylum in [Country 1] and had entered [Country 6] using a false [Country 5] passport. The applicant agreed that he had done this. He was young and was trying to get a better life. He agreed he was convicted in [Country 1] of using a false instrument. The applicant also agreed that he had not fully disclosed his travel history in his Australian protection claim. He blamed the advice he had received at the time for this omission.

10. The applicant agreed that he was married in Tanzania. He agreed that his wife had tried to apply for a visitor visa to come to Australia with a child of his. Since his arrival in Australia in 2014 the applicant stated that he has studied for a qualification in [subject] and was working in this area for four years. He now works as [an Occupation 1]. He started a family here and has a new female partner and a child born in Australia. He met his new partner in 2015. His child was born [number] years ago. His partner is an Australian citizen. She would not return to Tanzania should he be required to return there.

11. The Tribunal put to the applicant that it has long been established in case law that the act of removal from Australia itself does not constitute a basis for protection. The applicant and his representative confirmed that they are aware of this.

12. The Tribunal then spoke to the applicant’s witness, his partner [Ms A]. She stated that she met the applicant in December 2015 at a party. They have been living together since 2017. She has since had a child with the applicant, who is [number] years old. She stated that if the applicant was required to return to Tanzania this would have a very bad impact upon their [child] and herself. The prospect causes her mental stress, and it makes it difficult to plan for the future with such uncertainty. They both work and if she became a single mother this would affect her ability to work and would bring her and the child financial hardship. She works in [work sector] as [an Occupation 2] and this sector does not exist in Africa. The applicant would also struggle to find a job in Africa as his work here does not exist in Zanzibar. She also fears for the long-term mental health of herself and the child by the forced separation from the applicant. She also noted that she and the applicant come from different religions, as she is Christian, and if people in Africa find out about their relationship, he may come under pressure to end the relationship. She also noted that when he applied for protection, he was misled by people who advised him, and he regrets putting false information down in his claim.

13. The applicant submitted to the Tribunal that if he is required to return to Tanzania this will be difficult because he has a family in Australia with a young child. Also, because of his religion it will not be easy. With respect to his concerns about religion, he is a Muslim, and his wife is a Christian, so he worries about that. The Tribunal noted that Tanzania is predominately a Christian country outside Zanzibar and asked the applicant if he fears harm for reason of having a Christian partner. The applicant stated that he is unsure of this but thought if he returned alone, he may be at risk of harm for this reason. He stated this harm may be perpetrated by Muslim people. He has not received any threats for this reason in the past. He does know of friends who have been in this predicament. The Tribunal put to the applicant that some country information reflects that some mixed religion relationships have been subject to harm in Zanzibar but that victims have been able to safely relocate to the mainland.[1] The Tribunal asked the applicant how anyone would know about his relationship should he return there alone. The applicant simply stated that they would only know if his partner returned, and she would have to dress appropriately for the culture. The Tribunal noted that both the applicant and his partner have already given evidence that she would not move to Tanzania with the applicant. The applicant agreed that this is the case. The Tribunal also noted that the law in Tanzania allows for religious freedom and also that there is little reporting of Islamic extremist activity and this country information may also reflect that there is no real chance of serious harm to the applicant should he return there by himself.[2] The applicant stated that sometimes not all the truth with respect to Tanzania comes through. There have been tensions between the religions in the past when it comes to relationships, resulting in relationship breakdowns.

    [1] Institute of Religious Freedom, 2017 < United States Department of State - 2020 Report on International Religious Freedom: Tanzania.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant has resiled from his claim to fear harm for reason of his sexuality. The applicant clearly informed the Tribunal that he is not homosexual. Although providing some confused and contradictory evidence with respect to a claimed attack by the Janjawidi in 2007 in Zanzibar, the applicant was clear that he did not know the reason for this claimed attack and speculated it may have been because of a homosexual imputation. However, it is also clear that at the time he noted there was general unrest in Zanzibar. He was clear that this was a one-off incident that was random in nature and no words of threat or reasons for the claimed attack were made. The applicant did not suggest that he was of any ongoing adverse interest to the Janjawidi and gave evidence that, due to the passage of time, he did not really consider he would be at risk of harm from the Janjawidi should he return to Zanzibar. The Tribunal considers that the claimed harm was many years ago and considers that the reasons for the attack are merely speculative. The Tribunal notes that this claimed attack occurred some 15 years ago and was random in nature. Further, there is no suggestion that he was actually identified by his claimed attackers or has any form of adverse profile with the Janjawidi.  The Tribunal is satisfied that, should the applicant return to Tanzania, there is no real chance that he would be subject to serious harm by the Janjawidi for reason of his sexuality (imputed or otherwise), either now or in the reasonably foreseeable future.

15. With respect to the applicant’s concerns about his mixed religious partnership with [Ms A], the Tribunal notes, as stated in the hearing, that country information reflects that there is very little extremist activity in Tanzania and the country is relatively religiously tolerant. In such circumstances, the Tribunal is satisfied that there is no real chance of serious harm to the applicant for reason of his mixed religion relationship should he be required to return to Tanzania either with [Ms A] or alone, either now or in the reasonably foreseeable future.

16. 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).

17. 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). For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Tanzania. In MIAC v SZQRB [2013] FCAFC 33, 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 Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tanzania, there is a real risk that the applicant will suffer significant harm.

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

    Overall conclusions

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

20. 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).

21. 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 criteria in s 36(2).

    Other considerations

22. With respect to the applicant’s request for Ministerial Intervention on compassionate grounds, the Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in departmental policy 'Minister's guidelines on ministerial powers (s351, s417 and s501J)' and will refer the matter to the Department. This is because, while it is apparent from the applicant’s representative’s evidence that the applicant may have a visa pathway available to him and the applicant has also clearly provided false and misleading information to the Department, it is also apparent that the applicant now has a young child born to an Australian citizen with whom he is in an ongoing relationship. As such the Minister may wish to consider if there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. Further, this case may constitute circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations.

    DECISION

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

1. SECTION 417 REFERRAL: The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in departmental policy 'Minister's guidelines on ministerial powers (s351, s417 and s501J)' and will refer the matter to the Department.

   Paul Noonan
   Member