1719629 (Refugee)

1719629 (Refugee) [2021] AATA 5117 (3 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719629
COUNTRY OF REFERENCE:                   Czech Republic
MEMBER:James Lambie
DATE:3 November 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 November 2021 at 5:00pm
CATCHWORDS
REFUGEE – protection visa – Czech Republic – fear of Slovak mafia – misappropriation of money – applicant convicted of criminal offence – credibility concerns – decision under review affirmed

LEGISLATION
Extradition Act 1988 (Cth), s 19(9)
Migration Act 1958 (Cth), ss 5J, 36, 65, 91, 499, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

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 (the Act).
The applicant who claims to be a citizen of the Czech Republic, applied for the visa on 26 March 2014 and the delegate refused to grant the visa on 9 August 2017.
The applicant appeared before the Tribunal by videolink on 18 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr F].
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, 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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant claims to be a [age]-year old man from [Town 1] in the Czech Republic.
The applicant first arrived in Australia on [date] January 2011 as the holder of a [Visitor visa]. The [visa] ceased on [date] January 2021, the applicant failed to depart Australia and remained onshore unlawfully.
On [date] January 2012, the Australian authorities received a request from Czech Republic authorities for extradition of the applicant in relation to a criminal offence, which he was found to have committed in the Czech Republic and for which he was sentenced in absentia to seven years imprisonment.
On [date] December 2013, the applicant was located and detained by the Australian Federal Police. He appeared in [Court 1] on [date] January 2014 and a warrant under s.19(9) of the Extradition Act 1988 was issued ordering the applicant’s committal to prison to await surrender by the Commonwealth.
On 2 January 2014, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa (XA 866). This protection visa application was deemed invalid on the same date due to non-payment of the application fee.
On 31 March 2014, the applicant lodged a valid XA 866 visa application.
On 9 August 2017, the applicant was notified that the Department had made a decision on the same date to refuse to grant his application for a protection visa.
On 25 August 2017, the applicant applied for merits review of the Department’s decision of 9 August 2017 to refuse to grant his application for a protection visa.
On [date] November 2020, the Department received advice that the applicant will not be extradited and an order was made for his immediate release from extradition custody.
Claims:
[Mr A] claims he worked for a Czech national, [Mr B] for approximately 12 months, from an unknown date in 2010 when he resided in the Czech Republic, until his departure from the Czech Republic on [date] January 2011.
He claims the work he undertook consisted of [specified] duties and assisting [Mr B] in setting up companies within Europe. He claims he began to be suspicious of the lawfulness of [Mr B]’s business dealings and he advised [Mr B] he would cease working for him.
[Mr A] claims he was threatened by [Mr B], but shortly afterwards [Mr B] paid his outstanding wages and [Mr A] flew from the Czech Republic to [Country 1].
He claims it was only after his arrival into Australia that he became aware he was being charged with theft of approximately €[Amount 1] from [Mr B]. He claims that [Mr B] framed him for the theft with the assistance of corrupt police officers.
On [date] September 2012, [Mr A] was convicted of the theft of approximately €[Amount 1] and sentenced in absentia to seven years imprisonment in the Czech Republic. An extradition request was subsequently sent to the Australian authorities.
[Mr A] claims that [Mr B]’s bribery of court officials may have also been used to obtain a judgement against him.
He claims that [Mr B], through connections to the Slovak Mafia, has the intent, resources and ability to kill or harm him if he was returned to serve his prison sentence in the Czech Republic.
He claims the Slovak mafia wants to kill him because of his knowledge of their operations.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicant’s protection visa application form completed and lodged on 26 March 2014;
(b)The applicant’s identity documents being a copy of his Czech passport, Czech driver licence and Czech birth certificate;
(c)The protection visa decision record dated 9 August 2017 (delegate’s decision);
(d)The review application form dated 25 August 2017, which included a copy of the delegate’s decision;
(e)All documents submitted to the Department in support of the applicant’s protection visa application, including:
·statements from the applicant dated 10 November 2011 and 26 March 2014;
·the applicant’s responses to the Notice of Intention to Consider Refusal of his protection visa application under s.501(1) of the Act dated 5 October 2016, 3 November 2016, 2 May 2017 and 22 May 2017;
·support letters from family and friends in the Czech Republic;
·an affidavit of his mother, sworn on 22 May 2014; and
·a bank draft.
(f)Documents relating to the applicant’s criminal proceedings in the Czech Republic and the request for extradition of the applicant contained in Department files[including]:
·a verdict judgement record in relation to an extradition order and warrant ordering the applicant’s committal to prison to await surrender, issued by [Court 1] on [date] March 2017;
·a summary of a Departmental interview conducted on 21 May 2015;
·a transcript of a Departmental interview conducted on 27 January 2015;
·representations made by the applicant to the Attorney-General’s Department dated 8 June 2014, 28 January 2015 and 20 February 2015;
·a letter addressed to the applicant from the Attorney-General’s Department in relation to the extradition request from the Czech Republic dated 30 April 2014;
·a letter from the Czech Republic’s Ministry of Justice addressed to Australia’s Attorney-General’s Department in relation to the extradition request dated 11 April 2014;
·a statement from the Presiding Judge to the Czech Republic’s Ministry of Justice dated 2 April 2014, accompanied by an English translation;
·a warrant ordering the applicant’s committal to prison to await surrender dated [date] January 2014;
·an English translation of the trial protocol dated 21 August 2012;
·an English translation of the record of the hearing before the Regional Court [in] the Czech Republic dated 24 July 2012;
·an English translation of the main trial protocol dated 24 July 2012;
·an English translation of a criminal records document in relation to the applicant dated September 2011;
·an English translation of a witness examination protocol in relation to witness, [Mr B] dated 22 June 2011;
·an English translation of a report of witness, [Ms C]’s interrogation dated 22 June 2011;
·an English translation of a witness examination protocol in relation to witness [Ms C] dated 22 June 2011;
·a dob in made to the Australian Federal Police by [Mr B] on [date] February 2011;
·an English translation of a crime information protocol in relation to [Mr B] dated 6 January 2011; and
·an English translation of a report of criminal notification made by [Mr B] dated 6 January 2011.
(g)All documents submitted to the Tribunal in support of the applicant’s application for review, including:
·statements from the applicant dated 26 March 2014, 20 August 2017, 25 September 2017, 13 November 2017, 22 January 2018, 11 February 2019 and 21 February 2021;
·a statement from the applicant that was provided to the Czech Court dated 10 November 2011, accompanied by an English translation;
·an affidavit of his mother, sworn on 22 May 2014;
·support letters from family and friends in Australia and the Czech Republic;
·the judgement of the Regional Court [in] the Czech Republic dated 4 September 2012, accompanied by an English translation;
·a promissory note signed by [Mr B];
·a witness examination transcript in relation to witness, [Ms D] dated 24 July 2012, accompanied by an English translation;
·a witness examination transcript in relation to witness, [name deleted] dated 21 August 2012, accompanied by an English translation;
·a witness examination transcript in relation to witnesses, [Mr B] and [Ms C] dated 6 February 2012, accompanied by an English translation;
·a statement on the questioning of a witness, [Mr B] dated 22 June 2011, accompanied by an English translation;
·a statement on the questioning of a witness, [Ms C] dated 22 June 2011, accompanied by an English translation;
·a statement on the questioning of a witness, [Mr E] dated 10 August 2011, accompanied by an English translation;
·a statement from the applicant’s defence counsel in the Czech Republic in relation to the applicant’s mother’s witness examination dated 21 May 2014, accompanied by an English translation;
·an email from an officer of the Department of Home Affairs sent to the applicant in relation to his protection visa application;
·an Australian Federal Police National Police Clearance dated 12 August 2016;
·a prisoner conduct report issued by [a named] Correctional Centre on 27 September 2016; and
·a news article concerning the conviction of a Czech police officer dated 11 February 2015.
(h)Country information on the Czech Republic, as outlined below.
Country of reference / receiving country:
The applicant claims to be a citizen of the Czech Republic. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that the Czech Republic is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal by videolink on 18 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr F], who is the applicant‘s friend.
After dispensing with the hearing preliminaries, the Tribunal discussed with the applicant that to be granted a protection visa, he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in the Czech Republic. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to the Czech Republic. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to the Czech Republic.
[Mr A] provided a statement in translation dated 10 November 2011 (originally provided by his lawyer to the Czech court), and a statement provided with his protection visa application on 26 March 2014.
In the statement of 10 November 2011, [Mr A] claims that the criminal proceedings against him for the alleged theft of €[Amount 1] are based on a fabrication by [Mr B] for the purposes of discrediting him. He claims he did not leave the Czech Republic out of fear for the law, but for fear of his life.
He says that he worked for over six months for [Mr B], most often as a driver and errand boy on the promise of receiving commissions and assistance with his own business activities. He says that he learnt, after working for [Mr B] for a while, that he was being drawn into [Mr B]’s illegal dealings, involving money laundering for the Slovakian mafia and VAT fraud. When he objected to being involved, he says that [a named person] and his associates threatened him that the suspect dealings were being conducted under his name and that if he said anything there would be consequences.
He claims that he then stipulated to [Mr B] that, if [Mr B] wanted him to remain involved, he would need money to support himself. He claims that, while [Mr B] agreed to this, the money was not forthcoming and his debts mounted. He expected to receive the sum of €[Amount 2]. When he kept asking for payment, he was told that he would receive it in due course but, in the meantime, he should keep quiet and do what was asked.
[Mr A] claims that he visited [Mr B] on [date] January 2011, between 9 and 10 AM. He said he was paid the €[Amount 2], as agreed, with [Mr B] adding that he should not be impudent with his people or there would be consequences.
He continues:
My plan was easy, take my [Amount 2] euros and leave Europe in order to protect myself, as I was beginning to suspect that their helpfulness would not be without consequences. I left the following day because they wanted me to do something that I didn’t want to do anymore. I also wanted to find a job abroad in order to start solving my financial system and pay off my debts.
Regarding the [money], I personally think that my leaving suited [Mr B] very much and that the mafia pack stole from each other and they pointed the finger at me. Or, he got scared and made up this story in order to discredit me. Because after my father had been charged, he thought that all the things I knew about their Czechoslovakian dealings I could use to the benefit of my father as extenuating circumstances and that in the end I could turn to a different police force than the one in [Town 1] and [City 1] where they have contacts …
And to conclude why I am actually writing this statement, after I saw my photograph on the TV news and heard the nonsense about robbing a friend, I realized how my absence in Czech Republic was abused. The reason I did not inform anybody where I was, not even those closest to me, was due to the fear for their safety, as it is clear that these people have their own very effective means how to find out an answer. Therefore, because of protecting myself and of course my family and friends, I did not let anybody know where I was …
The statement of 26 March 2014 provides a more detailed background. It describes how his father first introduced him to [Mr B] in about 2002. His father seems to have had some underworld connections and incurred debts in respect of which [Mr A] claims to have been menaced, including having been kidnapped on one occasion at about this time. As a result, he changed his living arrangements in order to avoid further contact with associates of his father. In about 2009, he claims he had a chance meeting with [Mr B] and exchanged telephone numbers. In about early 2010, he received a call from [Mr B] and agreed to meet him. [Mr B] offered to pay him €3600 a month to act as the director of a [company].
[Mr A] claims that [Mr B] never met his commitment to pay him €3600 per month, although he was asked to act as a director of another company to supplement his income. Again, the payments did not materialise. Sometime later, [Mr B] approached him to ask him to become his driver. [Mr A] drove him to [another country], where [Mr B] registered another company by the name of [deleted], again with [Mr A] as a director. He says that he suspected something strange about this operation because, immediately following its registration, [Mr B] and his associates took all of its documents from him. When he asked [Mr B] about it, [Mr B] told him not to ask questions or something bad would happen to him.
[Mr A] claims that, about two months later, he began to piece together the nature of [Mr B]’s business from overheard conversations in the car, including one with a person wanted for murder in Slovakia. It was at this time he decided that he would leave the job. He says that he came to realise that the companies of which he was a director were laundering money for the Slovakian mafia. When he told [Mr B] that he wanted no further involvement with [Mr B]’s criminal activity, [Mr B] told [Mr A] that he already knew too much and that if he did not continue to cooperate, bad things would happen to his mother and younger brother. [Mr A] said he could not go to the police because [Mr B] had police connections. He names a person he claims was a member of the organised crime task force as an example. At some time in December 2010, he says, he made plans to depart the Czech Republic. He visited his mother and borrowed the sum of CZK[Amount 1] for the purposes, he says, of paying off his debts.
Around the middle of December 2010, he says, he went to see [Mr B]. He told [Mr B] that he was owed €[Amount 2]. [Mr B] told him that he would receive the money after Christmas and that this would be the last pay cheque he would receive from him. In January 2011, he went to [Mr B]’s residence. [Mr B] told him that, before he received the money, he would need to effect one more transfer between the companies of which [Mr A] was the director. On completion of the transfer, [Mr B] paid him the €[Amount 2]. The following day, [Mr A] boarded a plane to [Country 1], from where he organised an Australian visa. He claims that he went into hiding when he became aware of the conviction in the Czech court.
At the hearing, [Mr A] was taken through his statements and other material provided by him, or on his behalf. He added a new detail that, on one occasion while he was working for [Mr B], [Mr B] showed him a photograph of his mother and younger brother as a threat. He explained that he sought the €[Amount 2], which he described as back wages, both to start a new life away from [Mr B] and to repay debts, including a debt in respect of which he had been sentenced to a suspended term of imprisonment.
[Mr A] told the Tribunal that when he heard about the conviction he was shocked, both at the fact that the court had not accepted his evidence, and that he had been convicted for stealing money that, as far as he knew, had never existed. He said that, while he understood that the Tribunal could not disregard the findings of the court, it was important that the Australian authorities assess whether they are being used by criminals to achieve their goals under the guise of the Czech justice system.
The Tribunal asked [Mr A] to clarify his evidence that he had previously been sentenced in respect of non-payment of a debt. He denied the suggestion that it was a conviction for fraud, describing it as misdemeanour embezzlement. He accepted that it was an offence of dishonesty, but only technically so because he had been ordered to repay a sum of money and did not have the means to do so. On further questioning, he accepted that the ordered repayment was in respect of moneys he had misappropriated and was an additional component of the sentence. His prevarication on this issue does him no credit.
The Tribunal suggested to [Mr A] that it was a curious aspect of his claims that [Mr B] would use the legal process, including police resources, in respect of the claimed theft of €[Amount 1] if [Mr B] knew that money was either tainted or non-existent. He said that the money had never existed. He said [Mr B] was using the legal system to achieve his goal, which was to have him returned to the Czech Republic. His use of the legal system allows him to achieve his ends for free.
The Tribunal asked why, if the money never existed, [Mr B] would be so anxious for [Mr A] to return. He said that, before he left, [Mr B] had told him that the companies of which he was a director would, within the next six months be involved in a very big deal, in the order of €[amount] to be transferred from [Country 2]. He said that, because he left, [Mr B] simply couldn’t proceed with this transaction. He said he believed [Mr B] had undertaken elaborate preparations for this deal and that, because he needed [Mr A] to effect the transactions through the companies, he needed him back in the country. The Tribunal asked him to explain this. He said that his companies were part of a chain through which these funds needed to flow. He said that, just before Christmas 2010, [Mr B] was preparing some bogus deals for [Mr A] to sign on behalf of the two companies of which he is a director. One of his companies would purportedly purchase assets from the other. This transaction was central to [Mr B]’s plan: it could not proceed in [Mr A]’s absence. The Tribunal questioned the logic of this arrangement: surely a straw director (which [Mr A] accepted was an accurate characterisation) or a company designated as a mere conduit for funds would be simple to replace. [Mr A] said he could not say what was in [Mr B]’s mind. He said that [Mr B] was likely also motivated by revenge after he exposed [Mr B]’s operation in the criminal proceedings. He said that the court’s failure to accept his evidence is an indication of how badly wrong things are in the Czech Republic, and how [Mr B] is protected by his network. He said it was also very relevant that the amount he was alleged to have stolen was just over the minimum required to designate the offence as “extremely serious damage” and therefore justify the issuing of international arrest warrants.
The Tribunal questioned [Mr A]’s claims to have exposed [Mr B]’s operation. On his own account, he was no more than a low-level operative, whose only role was to be in purported control of two companies in order to give the appearance of legitimacy to some transactions. He had not provided meaningful details of [Mr B]’s operation or any history of transactions. The only details he had provided were given well after he had left the Czech Republic and the criminal proceedings were underway. He said he could not say how his disclosures might have been actually viewed by [Mr B] but said that the evidence of [Mr B]’s feelings was in the fact that [Mr B] had threatened him and his family and continued to pursue him.
The Tribunal put to [Mr A] that, if his evidence was accepted, it might be logical for [Mr B] to do nothing. If the €[Amount 1] had never existed, [Mr B] would never had said a word to the Czech authorities and therefore would have no reason to risk exposure of his operation. If [Mr A] had never been accused of the theft, he would have had no reason to speak about the operation. [Mr A] said he never claimed to fully understand [Mr B]’s motives. The Tribunal asked [Mr A] why [Mr B] would go to such lengths to have him returned if his claims of his part in [Mr B]’s alleged operation were accepted. He said it was a shock to him when he learnt of the criminal proceedings and could not explain why [Mr B] had gone to such lengths, apart from his subjective opinion which he earlier expressed. Only [Mr B], he said, could explain why he had gone to these lengths. He said that the delegate had found it hard to understand how [Mr B] had access to such extensive material about his movements and hotel bookings and was able to berate the Australian Federal Police about its failure to arrest him. It was put to [Mr A] that his travel details had been given in evidence at his criminal trial. He said that [Mr B] had given the AFP much more detailed evidence than was presented at the trial.
The Tribunal asked [Mr A] why, if [Mr B] has the access he describes, he would not fear [Mr B] making contact with Australian criminals to cause him harm. He said he had placed as much distance between himself and [Mr B] as he could.
[Mr A] pointed to the dating of the promissory note as evidence that the money did not exist: it is dated [a few] days after [Mr A] left the country.
The Tribunal put to [Mr A] country information to the effect of that contained in paragraphs 101 to 103 below. He said that he did not necessarily accept that the justice system and rule of law were as robust as suggested. He said that leading Czech politicians had, as recently as 2017, criticised the independence of the judiciary. He said that media accounts of corruption continue to emerge on a monthly basis and that, while the authorities are taking action, that action would not need to be taken if the corruption did not exist. He said that his personal experience was an illustration as to why he could not put his faith in the Czech authorities to protect him and his family. He said he had provided information to clear his name which had been disregarded. When his mother had asked to be a silent witness because she feared [Mr B], that request had been denied. This, he said, was to prevent his mother presenting evidence that would have cleared his name and incriminated [Mr B]. He said he would never have sought protection if he had faith that the justice system operated as it was supposed to do. He said the fact that he had spent seven years in a maximum security prison in a foreign country was a testament to the genuineness of his fear.
The Tribunal reiterated that, if his claims of a subjective fear are accepted, it still needed to be satisfied that the fear was reasonable and well-founded. It put to [Mr A] that his claim to fear harm from [Mr B] and his associates might not appear to be reasonable and well-founded if the logic of that claim is not apparent. Thus, for example, [Mr B] could no longer prevent disclosure of his money-laundering operations because that disclosure, on [Mr A]’s evidence, had already occurred. The court had not found, as a matter of fact, that money laundering had occurred. [Mr A] said that the failure to make that finding might be taken as suggestive of the court’s lack of integrity. When pressed as to why [Mr B] would want him back in the country, he said that he honestly did not know. It may be revenge or another purpose. It was, he said, undeniable that [Mr B] desperately wants him to come back. The Tribunal suggested that one explanation might be that [Mr B] had been telling the truth and that his actions were consistent with that, and with the prospect of the misappropriated moneys being repaid. The alternative proposed by [Mr A] relied on unknown motivations. He was asked why his return should be sought if no money had been stolen. He said that, if it can be accepted from his evidence that the court had been influenced or misled by [Mr B], it would throw an entirely different light on his situation. The Tribunal suggested that, if the money was never stolen, the motivation for revenge is not apparent. If [Mr A]’s only offence against [Mr B] was to stop working for him, for which he was paid off as agreed, the motivation for revenge was not at all clear. He accepted that his explanation might not be believed if the Tribunal determined that the court outcome had not been manipulated. He said that there was ample evidence he had already provided that the court outcome and the subsequent police search for him were manipulated, including [Mr B]’s high-level access to his travel arrangements.
The Tribunal put it to [Mr A] that his sudden departure from the Czech Republic was, in all the circumstances, more consistent with his misappropriation of the money from [Mr B] than with this claim that he had begun to fear for his safety owing to his knowledge of [Mr B]’s enterprises. He said that his departure was consistent with the plans he had made since becoming aware of the nature of the enterprises and having been threatened when he complained. When asked if [Mr B] had ever followed through on his threats to [Mr A]’s mother and brother, [Mr A] said that [Mr B] had visited his mother on a number of occasions. His mother, as a result gave strict instructions to his brother’s school that no-one but her was to pick him up. He accepted that neither his mother nor his brother had suffered physical harm since his departure from the Czech Republic.
[Mr A] told the Tribunal that he did not fear harm from any organ of the state of the Czech Republic, only the capacity of the state to provide him with effective protection from [Mr B] or his associates. He referred to his previous evidence in relation to the conduct of the trial and [Mr B]’s access to his travel details as examples of [Mr B]’s power to subvert any protection offered by the state.
In a letter dated 21 February 2021, [Mr A] wrote to the Tribunal to add to and clarify the evidence he gave at the hearing. In the letter he says:
I maintain my innocence to the theft of [cash], however it has occurred to me that [Mr B] could see that I have effectively lied to him when I said that I would continue to work for him (as explained in my statement dated 10 November 2011) but that I needed €[Amount 2] to secure my living; after receiving this money I just fled his circle and the Czech Republic. He could see this, me leaving with the €[Amount 2], as a theft.
Furthermore, in the days after my departure he had a large illegal business deal plan to go through a company, which was registered in my name. Due to my departure this business deal would not have been able to go through as he had planned. My leaving may even have jeopardised the entire deal as I don’t believe he could have replaced me in the company, which is part of the chain, in such a short period of time (as may demonstrate my mother’s testimony dated 22 May 2014 where she states that [Mr B] was asking her if I had left any documents behind). I believe that this would have resulted in a further, considerable, financial loss. All this without a doubt would have also caused him to lose face with his associates. This would not only have impacted him but other people involved.
I also acknowledge, that over the last seven years his anger for me is most likely not consuming his every thought; however I think that anybody would agree that the chance of his rage arising anew at the sight of me, is more than real. Seeing me would be inevitable as I will have a retrial if returned to Czech, as per Czech Criminal Procedure Code section 306(a), as my previous trial was carried in absentia. I don’t even have the option to take refuge in another European country as the Czech Republic still has an active warrant for my arrest. The danger to me or my family is more than just a possibility. But if I’ll be allowed to stay here in Australia, far away from [Mr B] and his associates, this safety to my person and to my family will be considerably higher…
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been
obtained and checked and when the examiner is satisfied as to the applicant's general
credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
I have read carefully, and give weight to, the decision of the judgement of the Regional Court [Czech] Republic. I note that the judgement is the second decision made in [Mr A]’s case, the matter having been remitted to the Regional Court on appeal for additional evidence. The fact that [Mr A] had the benefit of an appeal process, and was successful in having the matter remitted despite being a fugitive, is a matter to which I give some weight as indicative of the robustness of the Czech system of justice and which tends to undermine his claims that it is able to be manipulated by [Mr B].
The decision itself contains very substantial detail concerning the theft of the €[Amount 1], and also of [Mr B]’s business dealings and [Mr A]’s financial background. On the face of the decision, I can find nothing to support [Mr A]’s claims that the process or outcome had been manipulated, or that the court had disregarded his claims. On the contrary, the court made very detailed enquiries as to the alternative funds [Mr A] claimed to have at his disposal via his mother, the evidence for which, in closely reasoned terms, it found unsatisfactory. While the treatment of his own evidence is brief by comparison with that of the other witnesses, it seems necessarily so given the brevity of his own unsworn statement of 10 November 2011 and his unavailability to be examined on it. The court itself raises the question which arose several times at the hearing before the Tribunal: “the question remains why [[Mr B]] would notify the police about the theft of money and designate [[Mr A]] as the perpetrator if he should be, according to [[Mr A]’s] letter, glad that [[Mr A]] left the Czech territory and cannot thus report [[Mr B]].”
[Mr A], in his evidence to the Tribunal, put considerable emphasis on the fact that the bank draft in evidence before the court is dated [date] January 2011, [a few] days after he left the Czech Republic (see paragraph 62 above). This, he says, is evidence that the cash he is alleged to have stolen never existed and that its existence was fabricated for the purposes of the court proceedings. The Tribunal notes that the dating of the bank draft was covered in the court’s decision: at page 3 of the decision, it is recorded that [Mr B] signed a draft for the amount of CZK [amount] “as a security for the loan” without any specification as to when this was done. At page 6 of the decision, the evidence of the lender, Mr [E], is that the draft was issued after the loss of the cash in order to secure [Mr B]’s indebtedness to him. While the nature of the loan between [Mr B] and Mr [E], on the evidence before the court, appears to have a furtive quality to it, it was accepted as legitimate by the court and there is nothing in the material before the Tribunal to suggest that the money never existed; nor can [Mr A] advance a satisfactory explanation as to why the existence of the money might be fabricated. I also infer that, had the existence of the cash been fabricated, it would have been open to [Mr B] to create a provenance for it that cast him in a much better light.
The other circumstance advanced by [Mr A] as evidence of [Mr B]’s capacity to manipulate the justice system relates to his contact with the Australian Federal Police with information that could only have come to him by way of a questionable degree of access to Czech law enforcement officials. [Mr A] cites the comment in the delegate’s decision:
I also consider that some of [Mr B]’s actions, which occurred after the applicant fled the Czech Republic, support the applicant’s concerns about being returned to the Czech Republic and serving his sentence in a Czech prison. For example, despite the fact that the Czech authorities had submitted a request for extradition of the applicant from Australia through official channels, [Mr B] took it upon himself to contact the AFP directly, providing the movement and hotel booking details of the applicant in [Country 1], Australia and [another country]. While he claimed to have obtained this information from the local police, given that he himself is neither a police officer nor an official of the Czech government, it raises concerns as to the means by which [Mr B] obtained such detailed information on the applicant’s movements outside the Czech Republic. Moreover, after his initial contact with the AFP, [Mr B] sent them another letter in which he berated the AFP and Australian authorities for not locating and arresting the applicant quickly enough…
Given [Mr B]‘s demonstrated ability to obtain detailed information of the applicant movement since leaving the Czech Republic, it is reasonable to conclude that he, or his criminal associates, could establish where the applicant is serving his prison sentence. It follows from this that the chance of the applicant being targeted within prison, at the behest of the Slovak mafia cannot be fully discounted.
While I accept that that this view of [Mr B]’s conduct may be available, it seems to me that alternative explanations are at least equally plausible. The delegate recognised this at page 16 of the decision:
As to [Mr B]’s knowledge of the applicant’s travels post his departure from the Czech Republic, I am not aware of any classified data being leaked by the Czech police in keeping a plaintiff informed of the progress of the criminal investigation. On face value the mere fact that [Mr B] knew of the applicant’s location is not sufficient to demonstrate unlawful collusion with the police. If anything, [Mr B]’s actions mitigate risk to the applicant as [Mr B] continued his lawful means to retrieve his money, rather than utilise contacts through the mafia.
To assign [Mr B] or the mafia with the ability to corrupt a police investigation court verdict, and then the power to harm the applicant in a Czech prison, is extrapolating without credible evidence to support the claim.
I tend to agree with this passage of the delegate’s decision.
The report of [Mr B]’s contact with the Australian Federal Police[3] , dated 24 February 2011 contains details of [Mr A]’s travel in January 2011 in no more detail than that set out in the court’s decision, at pages 12 and 15. As the delegate noted, there is no evidence before the Tribunal to suggest that it would be corrupt or otherwise unlawful for the police to share certain details of their investigation with the complainant in a criminal matter who was also seeking to make a civil claim. Further, it would appear that a substantial amount of this information also came from [Ms G], (see page 8 of the decision) who may also have passed this on to [Mr B]. I would also note that [Mr A]’s mother was apparently also able to obtain information from the police file on this matter without difficulty.
[3] Department file, [folio] 69
[Mr A] asked that weight be given to the Protection Visa Recommendation of 22 October 2014. This recommendation is explicitly not an exercise of the power under section 65 of the Migration Act and was not accepted by the delegate. The recommendation, with respect, was unduly prepared to accept that [Mr A] did not receive a fair trial:
while there is no evidence before me which indicates that the particular judges who considered this case were corrupt, influenced by third parties or purposefully discriminated against the applicant, there is country information which suggests that the Czech judicial system, in general, is affected by high levels of corruption.
This finding was made despite the country information being quite equivocal as to corruption in the judiciary of the Czech Republic. The recommendation gives very considerable weight to the evidence of [Mr B]’s cash dealings which I consider, because they tend to be against his interests, to lend more credit to the suggestion that the claimed theft was not a fabrication.
Further, the recommendation does not engage with the logical problem at the heart of [Mr A]’s narrative. On his own account, he was paid €[Amount 2] by [Mr B] as a form of severance with only the admonition to be discreet (see paragraphs 53 and 54 above) and yet [Mr B], he claims, fabricated the theft the same day. There was no suggestion, at that time, that [Mr A] had any intention of blowing the whistle on [Mr B]. The recommendation also does not engage with the issue as to why [Mr B] sought to pursue the claimed theft through conventional legal channels, which would necessarily expose his alleged criminal links.
The recommendation does note that one of the police officers involved in the investigation of this matter was later dismissed after being charged with abusing authority and fraud. However, there is no evidence to link the matters for which the officer was charged with this matter and there is no indication on the court record that the presiding judge and two lay judges conducted the proceeding in a manner susceptible to police interference. My assessment of the recommendation applies also to the evidence given in this respect by [Mr A].
The credibility of [Mr A]’s claims requires the acceptance of his central narrative that he was framed by [Mr B] with the theft of €[Amount 1] in cash with the connivance, or by the manipulation, of the Czech criminal justice system. For the reasons given above, I cannot accept [Mr A]’s narrative and, on the evidence, consider the findings of the Czech court far more likely to be an accurate assessment.
[Mr A] also places considerable reliance on the fact that he has served 7 years on remand in Australia as evidence of his genuine fear of returning to the Czech Republic. I am inclined to give this matter a degree of weight as evidence of his subjective fear, while noting that there are additional compelling reasons for his not wishing to return to the Czech Republic, including the prospect of imprisonment there and his apparently very substantial indebtedness to various parties, including [Mr B] and members of his own family.
I have also had regard to the additional material submitted to the Tribunal in support of [Mr A]’s application. For the purposes of the factual enquiry, I have given careful thought to the written submissions from [Ms H] (the applicant’s mother) and [Ms D].
[Ms H] provided a document described as an affidavit (which I accept as a sworn document, it having been apparently formally created and notarised) dated 22 May 2014. She describes how, in early January 2011, she was visited by an unknown man and woman who told her that they were looking for her son [Mr A] and that [Mr A] had taken €[Amount 1]. The man said that if [Mr A] did not come to see him he would need to go to the police. At the end of the conversation the man introduced himself as [Mr B] and gave her his telephone number. The next day, she claims that she was met by two plainclothes policeman who told her that they were looking for [Mr A] and that it would be better for him if the police found him than if “they” did. She claimed she later called a friend who works in the police who warned her that [Mr B] is very dangerous and was suspected of murder.
She claims she was visited by [Mr B] the following day, seeking the addresses of her relatives and [Mr A]’s email password. She says that [Mr B] called her late at night asking for her maiden name and other details because he and his people were trying to break into [Mr A]’s email.
At about this time, she claims that [Mr A] telephoned her and told her that he had fled the Czech Republic for fear of the mafia and that [Mr B] has friends who worked for the police. She did not tell anyone that he had called her because, she says, she was afraid that they may hurt her family if they knew she was talking to him. She claims [Mr B] visited her several more times, despite her request that he leave her alone. [Mr B] told her that he had learnt that [Mr A] had flown somewhere with a girl and that he and his associates had found the girl’s parents. He said that he had obtained the information from them that [Mr A] and the girl were in [Country 1] by threatening to have the girl killed. She says he told her not to mention the conversation to anyone. She claims that she was very worried that [Mr B] or his associates would kidnap her younger son.
At some later time, she claims, [Mr B] visited her again and told her that associates of his work were seeking her address but that he was protecting her. She told him not to contact her again or she would call the police.
Later, she says, she spoke to [Mr A] about the upcoming court proceedings against him. His court-appointed counsel approached her for information and, she claims, she told her everything, including threats she had received from [Mr B]. Counsel’s request to the court that [Ms H] be permitted to give her testimony in secret was rejected. She says that the judge treated her subsequent testimony as to her providing money to [Mr A] with ridicule. She claims the court proceedings were corrupt and biased and it is her belief that the judge had possibly been bribed.

92. [Ms H]’s letter of 30 January 2021 claims that [Mr A] had endured seven years in prison in a foreign country because he knew that to return to the Czech Republic would have placed him, her and her younger son in grave danger. She claims to have been visited by suspicious individuals who threatened her to stop interfering.
93. [Ms H] was not made available to give testimony in support of her statement. There are aspects of her evidence that I find difficult to accept, especially when seeking to reconcile her accounts of [Mr B] wanting to take the matter to the police and freely volunteering that he had threatened the parents of the girl (presumably [Ms G]) with her death. As to her treatment at the trial, it is clear from the judgement and evidence transcript that there are difficulties with the plausibility of her evidence. She does not provide an independent account to the Tribunal of her claimed financial gift to [Mr A], nor does she explain why her evidence as to the payment of this gift was advanced only on the appeal of the first trial. It is also curious that she complained that the cash allegedly stolen had a dubious provenance when her own cash payments are similarly poorly documented and are also the subject of inconsistencies in the evidence of the various family members. I also consider the claimed threats by [Mr B], in the circumstances, to be surprisingly vaguely expressed when compared to the explicit threats he is claimed to have boasted of making to [Ms G]’s parents, particularly in circumstances where [Mr A] is the alleged principal offender and [Ms G] a mere dupe. [Ms H] is surprisingly inexplicit when it comes to her claims of having received threats in the period since the trial and also does not specify the “interference” on her part in respect of which these threats have allegedly been made.

In view of these matters, I give [Ms H]’s evidence very little weight.
Ms [D]’s statement of 29 September 2016 is very brief. She says that:
… [Mr A] is Citizen of Czech Republic who was threatened regarding his trial in the Czech Republic. I know him personally over 10 years and I can say that he is very nice person. Because of circumstances he happened to be in the unpleasant situation and he escaped because he was afraid. I personally believe that his asylum request will be accepted.
Her letter of 25 January 2021 provides a little more detail:
I know [Mr A] since 2003, we were partners back then and later we had remained as a good friend through the years. Because of the circumstances he happened to be in the unpleasant situation and he escaped because he was afraid for the safety of his family and his own. There are very few people who could respond to that kind of stressful situation with such a level headedness and grace.
I was a part of the court in Czech Republic as a witness and I can confess that I was personally threatened by [Mr B] when he contacted me, to give information to him before the police. I found this very stressful and unpleasant.
[Mr A] confessed to me of the serious lack of judgement he exhibited, which I believe was due to his naïveté and trusting nature, and expressed both remorse and a strong desire to address the personal issues at the heart of this matter. As his friend, I have been aware of some personal difficulties and how devastating this experience was, is, for him.
[Mr A] has thus far shown steadfast and resolute demeanour in the past this mistake in a constructive and successful manner. It is my hope, this letter regarding [Mr A] and his case will act as a positive and contributing factor when the Tribunal considers this matter.
[Mr B]’s own evidence to the court was that he had asked Ms [D] for [Mr A]’s whereabouts. Her evidence to the court (at page 9 of the decision), which appears to be reluctantly given (whether to downplay its effect on [Mr A], or having been made at the behest of another person, or from lack of recall, it is unknowable on the evidence), accepts that [Mr A] had told her he was leaving the country because he was in trouble for stealing a large amount of money. I place no weight on that evidence, but I do note that Ms [D]’s letter makes no suggestion that he had been wrongly convicted and that [Mr A] was, in fact, remorseful. She was also not made available to provide testimony in support of her letters. There is nothing in her evidence to which I can give any weight in favour of [Mr A]’s application but conversely, because of the very vague nature of what she says, I am not inclined to apply any weight adverse to the application.
Statutory declarations and letters of support were also provided by [3 named individuals], and [Mr F]. They are to the effect that they believe [Mr A]’s version of events and that he has worked hard to build a new life in Australia. I accept their evidence in relation to [Mr A]’s life in Australia but can give no weight to their endorsement of his account of events in the Czech Republic.

I have considered [Mr A]’s claims in terms of the available country information.

100. As a member of the EU the Czech Republic is bound to operate within EU law, policy and conditions. The Treaty on the European Union states that EU membership is conditional on member states respecting the democratic values of the EU and is committed to promoting them.[4] At the European Council in Copenhagen in 1993 and hence referred to as 'Copenhagen criteria', countries wishing to join the EU need to have:
[4]
· stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.

101. Furthermore, with regard to EU standards and requirements for member states’ judicial systems, the Copenhagen criteria states:
EU policies in the area of judiciary and fundamental rights aim to maintain and further develop the Union as an area of freedom, security and justice. The establishment of an independent and efficient judiciary is of paramount importance. Impartiality, integrity and a high standard of adjudication by the courts are essential for safeguarding the rule of law. This requires a firm commitment to eliminating external influences over the judiciary and to devoting adequate financial resources and training. Legal guarantees for fair trial procedures must be in place. Equally, Member States must fight corruption effectively, as it represents a threat to the stability of democratic institutions and the rule of law. A solid legal framework and reliable institutions are required to underpin a coherent policy of prevention and deterrence of corruption. Member States must ensure respect for fundamental rights and EU citizens' rights, as guaranteed by the acquis and by the Fundamental Rights Charter.[5]
[5] Chapter 23,

102. Finally, with regard to EU standards and requirements for member states justice, freedom and security systems, the Copenhagen criteria states:
EU policies aim to maintain and further develop the Union as an area of freedom, security and justice. On issues such as border control, visas, external migration, asylum, police cooperation , the fight against organised crime and against terrorism, cooperation in the field of drugs, customs cooperation and judicial cooperation in criminal and civil matters, Member States need to be properly equipped to adequately implement the growing framework of common rules. Above all, this requires a strong and well-integrated administrative capacity within the law enforcement agencies and other relevant bodies, which must attain the necessary standards. A professional, reliable and efficient police organisation is of paramount importance. The most detailed part of the EU's policies on justice, freedom and security is the Schengen acquis, which entails the lifting of internal border controls in the EU. However, for the new Member States substantial parts of the Schengen acquis are implemented following a separate Council Decision to be taken after accession.[6]
[6] Chapter 24, The Czech Republic government investigates and prosecutes police corruption. The General Inspectorate of Security Forces (GIBS) (in the Office of the Prime Minster), established in 2012, investigates allegations of, and prosecutes, criminal misconduct by police (including GIBS) and customs officers, and prison guards, among other security forces. GIBS inspectors carried out 'integrity tests', or sting operations, to catch violators in action.[7] In 2016 police of the Czech Republic's Anti-Corruption and Combating Organised Crime units were merged into a National Centre against Organised Crime (NCOZ).[8]
[7] U.S Department of State, ‘2020 Country Reports on Human Rights Practices: Czech Republic’ (30 March 2021) CTK (Czech News Agency), 'Bilek quits as head of security forces inspection ', Prague Daily Monitor (21 June 2015); CTK (Czech News Agency), 'Czech GIBS inspection accuses 300 officers a year', Prague Daily Monitor (30 December 2016).
[8] CTK (Czech News Agency), 'Changes in police force not domain of politicians, says PM', Prague Daily Monitor (10 June 2016); CTK (Czech News Agency), 'Police president suspected of serious leak', Prague Daily Monitor (21 June 2016); CTK (Czech News Agency), 'Financialpolice to be formed at beginning of 2017', Prague Daily Monitor (15 August 2016); CTK (Czech News Agency), 'Claims challenging Czech police shake-up unproven', Prague Daily Monitor (16 September 2016).
104. The Czech Republic's judiciary is largely independent and the rule of law generally prevails in civil and criminal matters.[9] As stated above, the judiciary's independence is protected by the Czech Constitution and the nation's membership of the EU.[10] The Czech Republic is attempting to prevent corruption among the judiciary in accordance with international recommendations[11] and also demonstrates its willingness and ability to prosecute corruption among the judiciary.[12]
[9] Freedom House, 'Freedom in the World 2021 - Czech Republic', section 'F. Rule of Law'
[10] Freedom House, ‘Nations in Transit 2021: Czech Republic’ (2021)
[11] CTK (Czech News Agency ), 'Tl: GRECO's criticism of Czech corruption is legitimate' (2 November 2016) on Prague Daily Monitor website; Council of Europe, Group of States Against Corruption (GRECO), ‘Fourth Evaluation Round: Corruption prevention in respect of members of parliament, judges and prosecutors’ (5 March 2020)
[12] Council of Europe, Group of States Against Corruption (GRECO), ‘Fourth Evaluation Round: Corruption prevention in respect of members of parliament, judges and prosecutors’ (5 March 2020) With regard to organised corruption, the Czech Republic is attempting to prevent corruption among the judiciary by organised criminals. The Security Information Service (BIS), in regard to organized crime, 'follows the activities of entities either exploiting illegal or illegitimate methods', including 'in order to influence the decision-making of state authorities, local administration bodies and judiciary authorities, and to illegitimately impact legislation processes at the central level.[13]
[13] Security Information Service (BIS), ‘What we do’
106. As well as police and judicial corruption, the Czech Republic prosecutes dishonesty among prison authorities and as recently as 2015 arrested a prison official over suspected corruption.[14]
[14] CTK (Czech News Agency), 'Prison head arrested over suspected corruption', Prague Daily Monitor (18 August 2015).
107. A thematic briefing issued by the Department[15] reported that Czech Republic government measures against inter-prisoner violence have been accepted to be adequate[16].
[15] Department of Immigration and Border Protection, ‘Czech Republic: Corruption and state protection’, Thematic briefing, Country of Origin Information Services Section, Refugee and Humanitarian Programme Branch (17 January 2017).
[16] ‘Report to the Czech Government on the visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 1 to 10 April 2014’, Council of Europe. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), [CPT/Inf (2015) 18], 31 March 2015, p.29 paragraph 47.
108. In relation to the Slovak mafia and its effect on police or the prison system, the extent of operations of Slovak organised criminals (mafia) in the Czech Republic could not be determined. Over the year 2015, 1845 Slovaks were convicted of a crime in the Czech Republic, the largest nationality (38%) among 4877 foreigners convicted that year. Foreigners were 7.4% of the total number of convicted persons.[17] The extent of Slovak organised criminals’ ability to corrupt police or prison officials could not be determined. In 2015, the Interior Ministry reportedly identified Russian and Asian criminal groups as the foreign groups most active in corrupting lower-level officials, customs officials and policemen[18]. The extent of Slovak organised criminals’ ability to infiltrate the prison system could not be determined. At April 2015 the Prison Service of the Czech Republic accommodated 1598 foreign inmates (1057 sentenced prisoners and 540 pre-trial detainees) among its 19,614 inmates (or 8.1% of them)[19].
[17] ČTK [Czech News Agency], ‘Number of convicted foreigners rising in Czech Republic’, Prague Daily Monitor, 29 August 2016.
[18] Fraňková R, ‘Report: foreign mafia groups attempt to infiltrate state administration’, Radio Praha, 13 August 2016.
[19] ‘Quick Facts’, Prison Service of the Czech Republic, [latest update 16 April 2015,] at heading ‘Other Facts’ at subheading ‘Foreigners’, and at heading ‘Accommodation capacity’.
Summary of findings
109. I accept that [Mr A] was employed by [Mr B] as a driver and sometime straw director of companies established by or on behalf of [Mr B].
110. I accept that [Mr A] became aware of, or was otherwise exposed to, unlawful activities in the course of his employment.
111. I accept that [Mr A] has a subjective fear of harm were he to be returned to the Czech Republic.
112. I accept that he holds subjective fears of harm from [Mr B] and his associates, and of corrupt elements of the Czech criminal justice or penal system.
113. I accept that he has been convicted of a criminal offence and is under a sentence of imprisonment which would take effect on his return to the Czech Republic.
114. While I accept that [Mr B] has connections to, and may be a participant in, a criminal underworld in the Czech Republic and Slovakia, I do not accept that [Mr A]’s history with [Mr B] has made him a person of interest to the Slovak mafia, or that he has objective reason to fear retribution from the Slovak mafia.
115. I do not accept that [Mr A] has detailed knowledge of [Mr B]’s alleged money laundering operations, or any other claimed criminal enterprises, nor that any imputed such knowledge would give rise to any objective reason to fear the Slovak mafia.
116. I do not accept that [Mr A] left the Czech Republic because of any subjective or objective fear of [Mr B] or his associates but, rather, to abscond with the monies stolen from [Mr B].
117. I do not accept that his conviction was affected by the corruption of the police or the judiciary by [Mr B] or any person acting on his behalf.
118. I am not satisfied that there is a real chance that [Mr A] would suffer significant harm within the Czech prison system by reason of his association with [Mr B] or for any other reason at the hands of the Slovak mafia.
Cumulative claims
119. Having considered all of [Mr A]’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, the Tribunal finds that there is no real chance that he will suffer persecution as a consequence of his dealings with [Mr B], or for any other reason, if he returned to the Czech Republic now or in the reasonably foreseeable future. Therefore, the Tribunal finds that [Mr A] does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the Czech Republic. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
120. The Tribunal has considered [Mr A]’s claims in terms of complementary protection.
121. Having regard to the findings of fact above, I do not accept that [Mr A] left the Czech Republic because he feared for his physical safety. I am satisfied that he left the Czech Republic in order to abscond with monies he had stolen from [Mr B].
122. In view of these findings, I am not satisfied that there is a real risk that [Mr A] will suffer significant harm for any of the reasons claimed if he returned to the Czech Republic now or in the reasonably foreseeable future.
123. Having considered all of [Mr A]’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that he will be arbitrarily deprived of his life, the death penalty we carried out on him, he will be subjected to cruel or in human treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to the Czech Republic now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
124. Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group. His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
125. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Czech Republic that there is a real risk that he will suffer significant harm.
Overall Conclusion:
126. 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).
127. 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).
128. 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
129. The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Lambie
Senior Member

[2021] AATA 5117

3 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction