1819410 (Refugee)

[2019] AATA 632

1819410 (Refugee) [2019] AATA 632 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819410

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:3 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 January 2019 at 3:03pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Federal Circuit Court remittal – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) involvement – child soldier – torture victim –  adverse profile –  outstanding arrest warrant – contacted by Sri Lankan Criminal Investigation Department (CID) in India – vulnerable witness – psychological distress – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

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

2. The applicant is a [age] year old male from [Town 1] in Sri Lanka’s Eastern Province. He seeks to invoke Australia's protection obligations so that he does not have to return to Sri Lanka, where he claims to fear harm on the basis of his Tamil ethnicity, his political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his profile as a member of the LTTE, a failed asylum seeker and a returnee from the west.

3. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. A summary of the relevant law is attached at Attachment A.

4. In assessing the applicant’s claims, the Tribunal has had regard to policy guidelines prepared by the Department of Immigration (PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines) and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. For the following reasons, the Tribunal has concluded that the decision of the delegate should be remitted back to the Department for reconsideration.

   History of proceedings

6. The applicant arrived in Australia by boat on [date] June 2012. He applied for the visa on 13 November 2012 and the delegate refused to grant the visa on 11 July 2013. On 18 September 2015 this Tribunal (differently constituted) affirmed the decision to refuse the applicant a protection visa, not being satisfied he was a person to whom Australia owed protection.  On [date] April 2018 the Federal Circuit Court of Australia made orders quashing the Tribunal’s decision and directed the Tribunal to rehear and determine the applicant’s review application.

7. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

8. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Medical evidence before the Tribunal

9. Shortly before the hearing, the Tribunal was provided with a detailed psychological report dated 23 October 2018 authored by [Ms A] of [Social Service 1] who states she first assessed the applicant for his symptoms of depression and post-traumatic stress disorder in 2013, before referring him to [a] Health Centre for ongoing treatment for depression and anxiety in January 2014. In May 2018 the applicant was again referred to [Social Service 1] by a mental health counsellor at [an] Immigration Detention Centre for an assessment of suitability for further treatment at [Social Service 1’s centre].  Since that time he has attended 12 counselling sessions with the author.

10. [Ms A] reports he shows a range of severe symptoms of post-traumatic stress disorder, major depression and anxiety.  Those symptoms include nightmares, intrusive memories that have the quality of auditory hallucinations, difficulty with concentration and memory, hyperarousal and avoidance which she assesses as consistent with someone who is a torture survivor.  She states his presentation, which includes emotional dysregulation, immaturity, fear of abandonment and a weak sense of identity, is characteristic of complex trauma.

11. [Ms A] states that the Tribunal hearing is likely to lead to intense anxiety and probably trigger severe distress. She notes the applicant can only tolerate to talk about pre-arrival traumatic events for a couple of minutes before becoming hyper-aroused and dissociating and he will need extra time to answer questions and regular breaks to assist him with his emotional dysregulation and intrusive memories. 

12. I accept the contents of the medical evidence before me and I have had regard to the author’s advice as to the conduct of the hearing.

    Country of nationality

13. It is not in dispute that the applicant is a Sri Lankan national.  Although he states he does not have any Sri Lankan identity documents, he has produced to the Department copies of his Indian refugee card and letters and medical reports relating to other family members. The delegate noted he had provided consistent information about his identity at interviews held with Australian immigration officers and that he speaks fluent Tamil.  The delegate accepted the applicant to be a Sri Lankan national. The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.

    The applicant’s ethnicity and place of origin

14. I accept the applicant’s consistent evidence that he is of Tamil race from [Town 1] district in Sri Lanka’s Eastern Province.  In making this assessment I note it to be consistent with his Government of Tamil Nadu ‘Sri Lankan refugees identity card’ which describes him as a Tamil born in [location deleted], who arrived by boat in India. I note he has at all times participated in departmental and tribunal processes with the assistance of a Tamil interpreter.

    The applicant’s claims of past harm in Sri Lanka

15. Sri Lanka’s Eastern and Northern Provinces experienced serious and long running military conflict during the period of Sri Lanka’s civil war between 1983 and 2009. During this time, the LTTE waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state, Tamil Eelam, in the north and east.  The conflict lasted until May 2009 when the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka.[1]

    [1] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018

16. DFAT reports that at its peak in 2004, the LTTE exercised effective control of approximately three-quarters of the territory in the north and the east of Sri Lanka, with an armed force of approximately 18,000 combatants.[2]  Over the course of the conflict hundreds of thousands of people were displaced and tens of thousands of people were killed.[3] The UN found credible allegations that both sides committed crimes against civilians.[4]

    [2] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 18 December 2015

    [3] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018

    [4] Department of Foreign Affairs and Trade DFAT Country Report: Sri Lanka 23 May 2018; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2.1

17. In his protection visa application and at subsequent interviews, the applicant consistently stated that following the death of his paternal uncle at the hands of the Sri Lankan authorities in 1992, his father made complaints about his uncle’s murder to the Sri Lankan authorities who advised him to drop the matter.

18. The delegate and the first Tribunal both accepted that as a result of his father’s complaints, the applicant’s father was taken away from their home by members of the Sri Lankan army in 1992. He has not been seen since and is presumed dead.  The applicant originally claimed his mother was physically assaulted by the army officers at the same time and died of her injuries.  Before this Tribunal the applicant stated his mother was in fact gang raped by the army officers who took his father away and later committed suicide after attempting to poison the applicant.  I accept the applicant’s most recent account of these events to be true, noting they are consistent with the contents of the [Social Service 1] report.  I accept the extremely distressing circumstances surrounding the death of his parents caused the applicant not to fully recount those matters in his initial application and interviews.  

19. Following the deaths of his parents, the applicant lived with an aunt and uncle and their children. I accept the applicant was taunted about the rape of his mother by other children and was unhappy living in his uncle’s house, particularly after his eldest cousin’s wife joined the household.

20. I note that at hearing before this Tribunal, the applicant made a number of new claims to have been involved with the LTTE during the conflict. These claims were not made to the Department or the first Tribunal and the applicant states this was because he was scared to mention his LTTE involvement because he believed he would be returned to Sri Lanka.  At hearing he gave detailed and apparently spontaneous evidence about how he came to be recruited by the LTTE, his training at various LTTE training camps around [Town 1] and his work as a bodyguard for an LTTE [official].

21. The applicant’s psychologist, [Ms A], states it is her professional opinion that the applicant did not disclose this information earlier for psychological reasons:

    ·He finds it psychologically very difficult to talk about his childhood trauma and for that reason has not previously given details of his mother’s rape and suicide and her attempt to take his life;

    ·He is unsophisticated, immature, impressionable and easily influenced and is deferential to persons he believes to be in positions of authority. As a consequence he followed advice that Australia would not give him protection if he disclosed his previous involvement with the LTTE and so he said nothing, being extremely fearful of being returned to Sri Lanka.

22. Having heard the applicant’s evidence, I accept it to be true. It is consistent with country information about the situation for Tamils during Sri Lanka’s civil war and it is consistent with the applicant’s psychological presentation.  The applicant has produced a number of corroborating documents including his LTTE identity card (original sighted at hearing), translated copies of a warrant for his arrest dated  [December] 2007 issued by the Magistrate’s Court in [a location] and a report in support of the arrest warrant of the same date provided to the court by Chief Inspector of Police. That report informs the court the applicant was a member of the LTTE for several years and the police believe he was involved in several attacks and murders in the North and East of the country. It states his parents died in the ethnic conflict and requests the court to issue the special arrest warrant.  I accept those documents to be genuine.

23. I accept that in his early teens the applicant stopped school to work on his uncle’s farm, where he was recruited by LTTE members who came to the farm in 2002. They encouraged him to live at [Town 2] in an orphanage run by the LTTE. Independent sources suggest the [Town 2] orphanage was an LTTE training camp, which was later bombed by the Sri Lankan Air Force killing [several people].[5]

    [5] [Source deleted]

24. The applicant claims that before moving him to the [Town 2] camp, he undertook basic training with other child soldiers in a nearby jungle area, learning weapons handling and doing morning exercises.  He remained there for three months before being sent to Battalion school in [a town], about 8km away. There he undertook training in heavy weapons and communications for about six months, where he excelled in every section.  I accept the applicant’s account of his training with the LTTE, noting he gave detailed and apparently spontaneous evidence and it is widely reported that the LTTE recruited thousands of child soldiers during the civil war[6]. 

    [6] Human Rights Watch Sri Lanka: Tamil Tigers Forcibly Recruit Child Soldiers 11 November 2004 at

25. The applicant was assigned as a bodyguard to an LTTE [official] named [Mr B], living in the camp in [Town 1] unless otherwise required to travel with the [official].  He remained working as a bodyguard until he was captured by the Sri Lankan authorities in 2007.

26. In 2007 the Sri Lankan army shelled the camp in which the applicant was staying, killing a number of other LTTE members outright. The applicant was just outside the camp when the shelling occurred and suffered some injuries. When he regained consciousness he saw four dead bodies and realised he had been captured by the army.  He was forced to radio the camp and identify himself by his movement name of [applicant’s Alias deleted], inviting others to come to his location. He used many code words but no one answered.

27. The army’s larger boats could not enter the area because of fallen logs in the stream, so they used rowing boats to take the applicant to the boats moored on the other side for a handover. The applicant’s hands were tied and he was put in a rowing boat with two army officers in the front and two in the back. They questioned him on the way over and one of them hit him on the head with a revolver, causing him to fall. The rowing boat toppled over and everyone fell in the water. The army officers were wearing heavy clothing and carrying weapons which slowed them down. The applicant started to swim with his hands tied in front and followed the stream.  People were shooting at him from boats on the other side but couldn’t reach him. He climbed up a tree on the bank and managed to escape.  He had only been in custody for about three hours.

28. He has not heard any news of [Mr B] since. He returned to his uncle’s house and stayed for about a week in a neighbour’s house before escaping to Tamil Nadu, India with his cousin and cousin-in-law.  He has not returned to Sri Lanka. I accept the applicant’s account of these events.

29. The applicant claims he was contacted by the Sri Lankan Criminal Investigation Department (CID) while he was living in India.  They obtained his mobile number from his friend [Mr C], who was in the same refugee camp and who was also in the LTTE.  [Mr C] returned to Sri Lanka at the invitation of the CID, but was shot and killed one and a half months later. The CID invited the applicant to come back, saying they would protect him. The applicant didn’t believe them, believing they would kill him as they had killed [Mr C]. The CID knew every detail about him and his schooling and wanted his help to find weapons dumps. The applicant said he had not expected them to have this level of intelligence and became very paranoid. He told them he intended to work in India and they asked for his bank account details, saying they would send him whatever money he needed to return.  He asked them not to bother him, saying he had joined the LTTE as a young child and asked their forgiveness.  They continued to ring him regularly for one to two years. 

30. The applicant’s friend told him her father who was also in the camp wanted to see him. His name was [Mr D] and he was a very important person in the freedom fighter [group].  The applicant had never met him before. When the applicant went to see him, [Mr D] named three people and asked if they were the CID officers calling him from Sri Lanka. The applicant confirmed that they were and [Mr D] told him that they would invite him to return and then shoot him. To prove it [Mr D] then called one of the CID officers without disclosing the applicant’s presence.  The CID officer confirmed the CID wanted the applicant. I accept the applicant’s account of these events, considering it plausible that a person of the applicant’s profile would remain of interest to the Sri Lankan CID.

31. The applicant gave evidence he obtained the arrest warrant and report referred to above after the first Tribunal hearing in 2015 during which he did not mention his activities with the LTTE. After that hearing, he disclosed his LTTE activities to his lawyer for the first time.  His lawyer insisted he tell the Tribunal the truth but it was hard for him to do that and he didn’t have the documents ready.  He phoned a friend who went to his uncle’s house and got the documents and sent them to him. It took longer than the time allowed by the Tribunal to produce the documents but he didn’t want to tell the Tribunal about his LTTE activities until he had the documents.  His lawyer stopped acting for him and the documents were never produced to the Tribunal.

32. The applicant believes that if returned to Sri Lanka, he will be interrogated by the CID who want to know where the LTTE’s weapons, explosives and money is hidden and they will want him to identify other secret LTTE agents.  He stated that CID have continued to go to his uncle’s house since his arrival in Australia and 6-8 months ago his father’s elder brother’s daughter was questioned about the applicant in the hostel where she was staying.  He heard this from his [cousin] and he believes the CID identified her through a photo on his [Social Media 1] account. 

    Future risk of harm to the applicant

33. The security situation in Sri Lanka is reported to have greatly improved since the end of the conflict in May 2009. The significantly improved conditions for Tamils in particular necessarily impacts on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision.  In assessing the applicant’s claims to fear harm in Sri Lanka, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test.

34. The Tribunal has considered the Guidelines issued by the UNHCR in 2012 which acknowledge that Tamils living in LTTE controlled areas in the northern and eastern provinces during the conflict necessarily had contact with the LTTE, but assesses that this does not in itself result in a continuing need for international refugee protection now that the conflict is over.  However those Guidelines identify other categories of people who may continue to be at particular risk of harm in Sri Lanka, including former LTTE combatants.  The Tribunal accepts that the applicant fits within this category of people, although it notes these Guidelines are now several years old.

35. The UK Home Office reports that since 2009 the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. Much of this information was gathered in the period after the conflict during which LTTE members and supporters were detained in camps and interrogated.[7] 

    [7] UK Home Office June 2017 Country Police and Information Note Sri Lanka Tamil Separatism

1. There are other factors that I consider indicate an increased risk of harm to the applicant if he is returned to Sri Lanka. Firstly, I have accepted the applicant is the subject of an outstanding arrest warrant issued in 2007. Secondly, I have accepted the Sri Lankan CID made contact with the applicant during his time in a refugee camp in Tamil Nadu, seeking his return to Sri Lanka. Thirdly, I have accepted that the Sri Lankan authorities have recently questioned his cousin about his whereabouts, apparently after locating her through [Social Media 1].  I consider these matters indicate the Sri Lankan authorities maintain a continuing interest in the applicant and there is a real chance he will attract their attention if returned to that country.

2. DFAT reports that Sri Lankan returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service, the Terrorism Investigation Department and the CID. These agencies check travel documents and identity information against immigration databases, intelligence databases and the records of outstanding criminal matters. I accept that the applicant is not in possession of a passport and he would require a temporary travel document to return to that country.  For returnees travelling on a temporary travel document DFAT reports that police undertake an investigative process to confirm a person’s identity which might include interviewing the returnee, contacting their home area and town police and contacting neighbours and family and checking criminal and court records.[8]

   [8] DFAT 2018 Country Information Report for Sri Lanka 23 May 2018

3. DFAT reports that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases. ‘Stop’ lists include names of individuals who have an extant court order or arrest warrant such as the applicant[9]. I accept these routine checks will disclose that the applicant is the subject of an extant arrest warrant and identify him as a former LTTE member.

   [9] DFAT 2018 Country Information Report for Sri Lanka 23 May 2018 at 3.37

4. I have considered whether being identified as a former LTTE member would lead to a real chance the applicant may face serious harm.  On the one hand, the UK Upper Tribunal has found that the Sri Lankan authorities know that everyone in the Northern Province had some level of involvement with the LTTE during the civil war and that in post-conflict Sri Lanka, an individual’s past history will only be relevant to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state[10].  DFAT reports that former LTTE members face no legal barriers to participating in public life, including politics.[11]

   [10] UK Home Office March 2017 Country Police and Information Note Sri Lanka Tamil Separatism at 2.4.9 – 2.4.13

   [11] DFAT 2018 Country Information Report for Sri Lanka 23 May 2018

5. On the other hand, independent sources set out below report that former LTTE members and combatants who come to the attention of the Sri Lankan authorities may be sent to rehabilitation camps, prosecuted in the courts and monitored following their release. That information suggests that some former LTTE members are mistreated while being rehabilitated and persons who are detained by Sri Lankan security forces face a real risk of harm that may require international protection.

6. Until recently it was reported that former LTTE members and supporters who had not previously been detained and released from Sri Lanka’s rehabilitation centres following the end of the conflict, including those returning from overseas, may be sent to the remaining rehabilitation centres.[12] DFAT reports that in December 2017, almost 13,000 people had completed rehabilitation and only one centre with eight inmates remained open in Vavuniya.  The rehabilitation program is expected to conclude once the last intake has completed the one year program and DFAT has been advised that any former LTTE members who have not already been rehabilitated are unlikely to be rehabilitated now.[13] For these reasons I consider it unlikely the applicant will be placed in a rehabilitation centre if he is returned to Sri Lanka.

   [12] UK Home Office March 2017 Country Police and Information Note Sri Lanka Tamil Separatism at 2.4.15 and DFAT 2018 Country Information Report for Sri Lanka 23 May 2018

   [13] DFAT 2018 Country Information Report for Sri Lanka 23 May 2018

7. DFAT reports that modest numbers of former LTTE members continue to be detained and prosecuted within Sri Lanka’s criminal justice system.  It states it has no information on conviction rates for LTTE members, but the lower standards required for cases brought under the PTA suggests the potential for a higher rate of conviction.  It reports the LTTE’s former leadership face the highest risk of monitoring, arrest, detention or prosecution.  Other LTTE members considered ‘high profile’ include former members suspected of terrorist or serious criminal offences during the conflict, or of providing weapons or explosives to the LTTE. The contents of the report from the Chief Inspector to the Magistrate’s Court Batticaloa referred to above suggest the applicant may be considered by the Sri Lankan authorities to fall into this category. 

8. On the basis of the DFAT and UK Home Office reports, the Tribunal considers that as a former LTTE combatant with an extant arrest warrant who has received significant weapons training and been a bodyguard for an LTTE commander, there is a real chance the applicant will be monitored, arrested and prosecuted if returned to Sri Lanka. 

9. As to whether such treatment may result in serious or significant harm to the applicant, the US State Department reported in 2015 that reintegration of former combatants and other detainees released from rehabilitation remains challenging due to intensive surveillance by the military, social stigma, employment difficulties and psychological trauma.  It reported that several released former combatants reported torture or mistreatment while in rehabilitation centres and after their release.[14]

   [14] UK Home Office March 2017 Country Police and Information Note Sri Lanka Tamil Separatism at 9.1.3

10. The UN Special Rapporteur on the Committee Against Torture visited Sri Lanka in April/ May 2016, reporting that while the practice of torture was less prevalent than during the conflict and the methods used at times less severe, a culture of torture persists, with physical and mental coercion used against suspects being interviewed by the CID and the Terrorism Protection Division[15]. The UK Home Office reported in May 2016 that security personnel in Sri Lanka continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015.[16] 

    [15] Ibid at 8.5.5

    [16] Ibid at 2.3.3

11. In its June 2017 report, the UK Home Office cited a Human Rights Watch report to the effect that police use of torture against criminal suspects cannot be dismissed as a wartime phenomenon, finding that even after the decisive defeat of the LTTE the police continued to routinely engage in torture to extract confessions.  It reported that police used torture and other forms of coercion as a shortcut to obtain confessions and to facilitate convictions, including for very minor alleged offences.[17] 

    [17] UK Home Office, Country Policy and Information Note Sri Lanka: Tamil Separatism June 2017, at 8.5

12. DFAT reports that while the Sri Lankan constitution specifically prohibits torture, several local and international organisations have alleged torture by the Sri Lankan military and intelligence forces, mostly perpetrated by the police against members of the Tamil community and involving people with imputed links to the LTTE.[18]

    [18] DFAT 2018 Country Information Report for Sri Lanka 23 May 2018

13. The United Kingdom Upper Tribunal has found that if ‘a person is detained by the Sri Lankan security services, there remains a real risk of harm requiring international protection’.[19] 

    [19] GJ and Others (Post-civil war Returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) at para 356(4)

14. On the basis of the above information, the Tribunal considers that as a former LTTE combatant who has received significant weapons training, acted as a bodyguard to an LTTE commander and in respect of whom there is an extant arrest warrant, there is a real chance that the applicant would face serious harm amounting to persecution if returned to Sri Lanka, now or in the reasonably foreseeable future. 

15. As the perpetrators of the harm feared by the applicant are the Sri Lankan authorities, the Tribunal finds that state protection will not be available to the applicant and relocating internally within Sri Lanka will not remove the threat of harm.

16. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution if he returns to Sri Lanka for the combined reasons of his Tamil ethnicity and his political opinion as a supporter of the LTTE. 

17. For these reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

18. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Alison Murphy
    Member

    
    

    Attachment A – Summary of Relevant Law

19. 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.

20. 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).

21. 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.

22. 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’).

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.