1724689 (Refugee)

[2022] AATA 1133

1724689 (Refugee) [2022] AATA 1133 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724689

COUNTRY OF REFERENCE:                   Tanzania

MEMBER:Paul Noonan

DATE:28 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 28 February 2022 at 3:03pm

CATCHWORDS
REFUGEE – protection visa – Tanzania – religion – raised as Muslim – married to Christian – Christian convert – threats of harm by radicalised cousin – family disapproval – fear of forced female genital mutilation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547)
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration 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 17 October 2014 and the delegate refused to grant the visa on 28 September 2017. On the basis of the delegate’s findings and the passport records on the Tribunal file, the Tribunal finds that the applicant is a citizen of Tanzania, and has assessed her claims on that basis. The Tribunal also finds that the applicant is outside her country of nationality, Tanzania.

3. The applicant appeared before the Tribunal on 23 September 2021 (which was cut short due to technical difficulties) and 5 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [named] who is a friend of the applicant. The hearings were conducted using video conference hearing. The Tribunal exercised its discretion to hold the hearing via video conference 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 she 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.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearings. An interpreter was not required for this matter.

   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 a 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 (DFAT), to the extent that they are relevant to the decision under consideration. There are no DFAT country information reports with respect to Tanzania.

    PROCEDURAL HISTORY

20. On 2 July 2014 the applicant applied for a [Visitor visa] to attend [an event] in Melbourne, representing [an organisation] based in [Tanzania].

21. On 14 July 2014 the applicant was granted the [visitor visa]. [In] July 2014 the applicant arrived in Australia. On 20 August 2014 the applicant applied for a Student visa (Subclass 570). On 13 October 2014 the applicant withdrew her application for a Student visa.

22. On 17 October 2014 the applicant applied for a Protection visa (Subclass 866). The delegate interviewed the applicant on 3 May 2017. On 28 September 2017 the delegate refused the applicant’s protection claim.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issues arising from the Refugees Convention and the relevant provisions of the legislation that are required to be determined by the Tribunal are as follows:

    ·Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?; or

    ·Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds?; or

    ·Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?

24. In considering these issues, the Tribunal notes that the 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’.

25. 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. Section 5AAA of the Act makes it clear that it an applicant’s responsibility to specify all particulars of their claim and to provide sufficient evidence to establish the claim.

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

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

27. 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.

28. 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.

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

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

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

32. The applicant states that she was born into a Muslim family. She claims protection on the basis that she fears harm due to her marriage to a Christian man which has resulted in the adverse attention of her Muslim family. She also fears harm from the broader Muslim community in Tanzania because of this marriage and because of her subsequent conversion to Christianity in Australia.

33. In this matter, the Tribunal discussed past claimed incidents of harm with the applicant in detail. The Tribunal accepts as reasonably plausible that the applicant’s Muslim family were opposed to her marriage to a Christian man. The Tribunal accepts that the applicant has genuinely married in the manner claimed in 2004 and that she has [children] attending boarding school in Tanzania. This finding is made based upon the marriage certificate and schooling information submitted by the applicant.

34. The Tribunal has considered the psychological reports submitted in support of the applicant’s case. The Tribunal accepts that the applicant suffers from stress and some depression. The Tribunal accepts that these symptoms may be attributable to the applicant’s uncertain immigration status and her ongoing separation from her family. However, the Tribunal is satisfied that the applicant was able to give her evidence at the hearing unimpeded by her mental health problems and she gave her evidence in a coherent and logical manner. In so finding, the Tribunal also notes that the applicant is currently unmedicated and that she is also represented in this matter and there have been no submissions made to the Tribunal that she was or is unfit to provide evidence on affirmation to the Tribunal.

    Christian conversion and marriage to a Christian man – general country concerns

35. The Tribunal has considered the applicant’s claim with respect to her conversion to Christianity. The Tribunal has considered the submissions and witness evidence with respect to the applicant’s active participation in the Christian faith in Australia. The Tribunal noted that Tanzania is a predominately Christian country and it is the predominant religion on the mainland.[2] Further, religious freedom is legislated for in Tanzania.[3] The applicant submitted the Muslim people are not happy with her conversion. The Tribunal noted that there is some limited country information reflecting converts from Islam to Christianity in Zanzibar have been subject to persecution by their families for that reason but that they have subsequently relocated to the mainland to escape that persecution.[4] There is no country information reflecting any systematic persecution of converts on the mainland. The Tribunal noted that this appears to reflect that converts have been able to safely live their lives on the mainland. The applicant submitted that her family are strict Muslims and this is why they are upset with her. The Tribunal finds that the applicant’s concerns with respect to fearing serious harm from the broader Muslim community in Tanzania due to her conversion are entirely speculative. She will not be returning to Zanzibar, which is the only area with a predominant Muslim population, and there is simply no country information that reflects that converts have suffered persecution on the mainland of Tanzania for reason of their conversion. Nor has she been of any adverse interest to the general Muslim population despite living for some time near a mosque and being openly married to a Christian man. Indeed the limited country information on this subject reflects that the few people that have converted and suffered persecution from their immediate family have been able to safely relocate to the mainland to escape persecution. The Tribunal is satisfied that, should the applicant return to Dar es Salaam to live with her Christian husband and practise her Christian faith, that the general Muslim population would be unaware of her conversion or her marriage status and further that she would be of no adverse interest to the general Muslim population or anyone else for these reasons.

    [2] UNITED STATES DEPARTMENT OF STATE - 2020 REPORT ON INTERNATIONAL RELIGIOUS FREEDOM: TANZANIA

    [3] United States Department of State – 2020 Report on International Religious Freedom: Tanzania

    [4] Institute of Religious Freedom, 2017 < applicant’s radicalised cousin

1. The Tribunal accepts the applicant’s claim that she was confronted by her radicalised cousin in the past and these confrontations resulted in serious harm to the applicant, including suffering a cut to her hand, being attacked at a market and having an attempt made to burn her family home down. The Tribunal also accepts that the applicant was suffering mental health problems at the time of her arrival in Australia and periodically since then and places no weight on her inconsistent evidence with respect to past dates of harm.

2. However, as noted in the hearing, the applicant’s Christian husband and children reside unharmed and unthreatened in Tanzania and have done so now for many years. The applicant noted that they relocated to avoid harm. The Tribunal rejects the assertion made to the Tribunal that they are unharmed because they have a different profile to the applicant as implausible. This is because the applicant gave evidence to the Tribunal that her cousin had directly threatened her family prior to them relocating and after she had left the country. Further, the applicant’s evidence reflects that in the past, her family were targeted by her cousin when he attempted to burn down the family home. If, as claimed, the applicant’s radicalised cousin retained a highly aggrieved, motivated and active position with respect to the marriage, it is highly implausible that the applicant’s family would be able to go about their lives with no ongoing threats or adverse contact at all, as confirmed by the applicant in the hearing, from the applicant’s cousin for many years after he had demonstrated open hostility towards them directly. Further, the applicant gave evidence that she had no idea where her cousin now lives, or what his status is at all. As noted in the hearing, the Tribunal may find it implausible that, if she still fears harm from her cousin, neither she nor her family have made any attempts to ascertain the location of her cousin or even if he is still alive after all these years, to ascertain if it may now be safe to return and reunite with her family. The applicant made no assertion that her family did not seek to find out his status for reason of fear of exposure, which may be a reason for not knowing anything about his current situation. Rather, she simply somewhat blandly stated that they had no collective knowledge of his location or status and gave no evidence that they were taking any active steps to protect their location. The Tribunal finds that this further reflects that the applicant’s cousin is no longer adversely motivated to harm the applicant or her family. It is far more plausible that the applicant’s cousin is simply not adversely motivated to locate or harm the applicant’s family or follow up with them in any way with respect to the applicant. Further, it is entirely unknown whether the applicant’s cousin resides in Dar es Salaam or Zanzibar or indeed if he is even still alive. In addition, as discussed and agreed by the applicant, her family resides in Dar es Salaam which is a city of several million people and it is highly unlikely that she will by chance run into the cousin in such a large city.[5]

   [5] Dar es Salaam – Wikipedia

3. The Tribunal has considered the post-hearing submission by the applicant’s husband that she should not return due to the risk of harm, however the Tribunal finds the above considerations outweigh this evidence as the applicant’s husband did not provide any details of any recent threats or confrontations of any sort from the applicant’s cousin. The Tribunal has also considered the applicant’s status as a Christian convert and whether there is a real chance of serious harm to her from the cousin for this reason in the reasonably foreseeable future. The applicant will be returning to live in a Christian family as she did before. The cousin’s animosity reflected a perception of significant religious transgression. Given the complete lack of adverse interest in the applicant or her family in recent years, the Tribunal does not accept that the conversion raises the real chance of serious harm to the applicant beyond that discussed above.

4. Overall, the Tribunal is satisfied that the totality of this evidence reflects that there is a remote chance, such that it is not real, that the applicant’s cousin, should he even still be alive, would become aware of her return and be interested in or be able to locate her, and that it is now safe for the applicant to return to live with her husband and children with respect to this claimed fear of harm. The Tribunal is satisfied that there is no real chance of serious harm to the applicant from her cousin for reason of her marriage to a Christian man or her more recent conversion to Christianity either now or in the reasonably foreseeable future.

   The applicant’s broader family

5. As noted at the hearing, the Tribunal is unconvinced by the applicant’s claim that her broader family were and remain motivated to seriously harm the applicant or harm her in any way. This is because the applicant gave evidence that she married in 2004 and lived in Zanzibar in close proximity to her family for some time after that. She then moved to the mainland with her husband. There is no evidence of any member of her family, other than her radicalised cousin, having attacked the applicant in a serious manner in all the years since her marriage. The Tribunal accepts as plausible that the applicant had a beverage poured over her head at one point when discussing her marriage in Zanzibar with a female relative but does not consider this action rises to the level of an example of past serious harm. It is also uncontested that no other member of the applicant’s family apart from her radicalised cousin has seriously harmed the applicant in the 10 years following her marriage, despite having ample opportunity to do so, including when she lived in close proximity to her family. The Tribunal finds that the applicant’s broader family is unmotivated to seriously harm her and would not seek to do so should she return to live with her husband either now or in the reasonably foreseeable future. The Tribunal does not accept that the applicant’s conversion raises these motivation levels in any way. The applicant’s family generally appears apathetic and not adversely motivated with respect to her situation in general and one long past isolated incident with respect to a drink being poured over her head does not change this perception. The Tribunal does not accept that the applicant faces a real chance of serious harm or any harm at all from her broader family for reason of her marriage to a Christian man or her conversion to Christianity either now or in the reasonable foreseeable future should she return to live with her family in Dar es Salaam.

   Female genital mutilation

6. With respect to the applicant’s claim to fear female genital mutilation, the Tribunal accepts that the applicant may have been asked to undergo female genital mutilation by her father, as a way for her to show contrition and as a condition for reconciliation with the family. As put to the applicant, the Tribunal may consider this to be a threat with no substance to it because she was and remains a married adult woman in a country where the procedure is illegal. The applicant was invited to explain how this could be enacted against her and her husband’s will, however the applicant had no substantive evidence to give and did not profess any desire to achieve such a reconciliation with her family. Instead the applicant then claimed that in fact it is her daughter that she fears harm with respect to this threat from her family should she return. As put to the applicant, the procedure is illegal in Tanzania for children[6] and the prevalence is very low at a rate of around 0.1% of the female population in Zanzibar where the applicant’s family resides and 4.2% in Dar es Salaam.[7] The Tribunal rejects the post-hearing submission that the procedure is not specifically illegal for adult women therefore does not preclude an adult from being subject to such a procedure. Further, the applicant’s daughter lives in a boarding school and with her husband and has had no contact with the applicant’s family for many years. A fear of persecution is not well‑founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[8]

   [6] ‘Country Reports on Human Rights Practices for 2019 – Tanzania’, US Department of State, 11 March 2020, p. 30, 20200312144328; ‘Winda’s story: Saying no to FGM’, United Nations Tanzania, 19 January 2021, 20210303103824

   [7] ‘Tanzania – 28 Too Many’, 28 Too Many, 20210304154812

   [8] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

7. The Tribunal finds that the applicant’s claim to fear harm with respect to being forced to undergo female genital mutilation, or her daughter being forced to undergo female genital mutilation, by her family or anyone else should she return to Tanzania, is simply a speculative claim with no substance, and the Tribunal rejects it. There is simply no plausible way that the applicant or her daughter could be forced to undergo female genital mutilation against the laws of the country and the prevailing social trends against FMG and against the will of both herself and her husband. The Tribunal finds that there is no real chance of serious harm to the applicant or her daughter for this reason either now or in the reasonably foreseeable future.

   Conclusions – refugee claims

8. In summary, the Tribunal is satisfied that the applicant’s family, her radicalised cousin and the general Muslim population of Tanzania are unmotivated to seriously harm her for reason of her marriage and that they would continue to be so unmotivated for reason of her more recent conversion. The Tribunal rejects the applicant’s claim as purely speculative that either the applicant or her daughter would be forced to undergo FMG. Further, the Tribunal finds that the applicant’s fears with respect to her conversion to Christianity are highly speculative and finds that there is no real chance of serious harm to her for this reason should she be required to return to her family home in Dar es Salaam, Tanzania. As such, the Tribunal finds that there is no real chance of serious harm to the applicant for any reason claimed, either separately or cumulatively, or for any other reason, either now or in the reasonably foreseeable future should she be required to return to Tanzania. The Tribunal is satisfied that the applicant can safely return to her family home in Dar es Salaam at which her husband and children have now safely resided for many years. As such, it follows that she does not satisfy the criterion set out in s 36(2)(a).

   Complementary protection

9. 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 she 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.

10. 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

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

12. 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).

13. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Paul Noonan
    Member