2011614 (Refugee)

2011614 (Refugee) [2020] AATA 5560 (18 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2011614

COUNTRY OF REFERENCE: Guinea
MEMBER:Luke Hardy
DATE:18 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2020 at 2:49pm
CATCHWORDS
REFUGEE – protection visa – Guinea – race – particular social group – Fulani – victims of loan shark – political opinion – Union of Democratic Forces in Guinea – threats from loan sharks – physical assault – political violence – fear of arrest – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MIAC v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [applicant name], is an ethnic Fulani citizen of Guinea. He was granted a student visa on 13 March 2017 and entered Australia three months later on [a day in] June 2017. He lodged a partner visa application on 7 March 2018 and withdrew that application on 5 July 2018. He was sent a notice of intention to cancel his student visa on 23 July 2019 and the visa was cancelled on 20 September 2019. The following day he became an unlawful non-citizen.
On 8 October 2019, [the applicant] was granted a bridging visa on departure grounds, meaning that he satisfied the Immigration Department of a genuine intention to depart Australia. However, the bridging visa ceased on 22 October 2019 and [the applicant], not having departed, again became an unlawful non-citizen.
Whilst residing illegally in Australia, [the applicant] was charged with a number of offences and detained. The charges were apparently later dropped and he was transferred to Immigration detention at the [specified detention centre] [in] May 2020. [The applicant] lodged a protection visa application on 8 June 2020, four years after the date of his arrival in Australia.
The Minister’s delegate refused to grant a protection visa to [the applicant] on 6 July 2020. [The applicant] then applied to the Tribunal for merits review. For the purposes of this review, he submitted a copy of the delegate’s decision record, which contains a summary of his substantive claims, descriptions of his migration history, references to independent country information and a discussion of issues raised by the delegate including concerns going to the question of credibility.
[The applicant], who is not represented, appeared before the Tribunal on 16 December 2020 to give oral evidence and present arguments. The Tribunal hearing was a video conference hearing and proceeded, at [the applicant’s] request, without need of an interpreter. I am satisfied that there were no language or technical issues impinging on communication and I am also satisfied that [the applicant] had an opportunity to speak to his claims.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Original claims
In his 8 June 2020 protection visa application, [the applicant] claimed to be a student from the port city of Kamsar in Guinea’s Boke province, near the border with Guinea-Bissau. He said that both his parents and [specified family members] live in Kamsar. He studied English in [Country 1] in 2013 and returned to Guinea the same year. He studied in [Country 2] for almost two years in 2015-16, returning to Guinea in March 2017. He declared that he had not been employed before coming to Australia.
As to his substantive claims, [the applicant] said that he left Guinea because his ethnic group, the Fulani, is subjected to discrimination. He said he left Guinea to escape “persecutions, lack of infrastructures and extreme poverty and corruption going on in the country.” Speaking of his personal experience, [the applicant] claimed that he had been struck twice on the head by a police officer on 28 September 2012 during a peaceful mass commemoration in a [venue]. The 2012 gathering, said [the applicant], was convened to commemorate a key independence referendum held on 28 September 1958 and a mass killing that occurred on the same day in 2009. [The applicant] said his head required stitches. He said he did not consider living in any other part of Guinea because his parents who supported him financially were both employed in Kamsar. He said his father, in any event, had organised to send him to [Country 1] to study English so that he might migrate later on to [one of several named countries] for a better future. He did not suggest that he faced any harm during his further two sojourns in Guinea, after returning, respectively, from [Country 1] and [Country 2]. He did say, however, that the Fulani face bullying from the Mandingo, a rival tribe. By way of an example of Mandingo mistreatment of the Fulani, he said that his [grandfather] had been hanged in [year] during the Sekou Touré dictatorship (1958 to 1984).
[The applicant] said that if he returned or was removed to Guinea he would face arguments with his father who had refused to continue to fund his education. He also claimed that Mandingo continue to treat Fulani as unwelcome foreigners in Guinea.
[The applicant] did not suggest in his original application that he had any socio-political affiliations.
At this stage of his application, [the applicant’s] claims were arguably generalised claims relating to “membership of a particular social group,” the group being the ethnic Fulani.
Independent country information
Independent country information[1] confirms the occurrence of the 2009 massacre that [the applicant] claims to have commemorated in 2012. The same material states that although the Fulani are the majority population, Mandingo, or Malinke, élites have generally ruled over the country in one form or another.
[1] “Guinea’s Ethnic Conflict,” Confluence, 29 October 2019,
An article from Deutsche Welle[2] confirms a history of occasional violent actions against Fulani in West Africa but reports that these occur mainly as territorial and land-use disputes between herders in rural regions.
[2] “West Africa: Fulani conflict getting worse,” DW, 7 May 2018,
Claims to the delegate
At his protection visa interview on 25 June 2020, [the applicant] made several claims to the delegate that he did not previously raise in his original protection visa application.
[The applicant] claimed that his father was a long-standing member of the Union of Democratic Forces in Guinea (UFDG) who participated in election campaigns in 2010 and 2015. He said the UFDG was strongly identified with the Fulani tribe. He said his father had been briefly “arrested” during those two election campaigns.
[The applicant] claimed to the delegate that in March 2017 before he returned to Guinea from [Country 2], he borrowed a total of around $[amount] from two loan sharks. He claimed that the loan sharks had been contacting him since he borrowed the money, tracking his movements. He claimed the loan sharks made telephone calls to his family in relation to the loan from November 2019 to February 2020. He claimed that the loan sharks [injured his brother] in February 2020. He said he was unable to provide police or medical evidence in support of this claim but provided the delegate with a photograph of an [injury] in ways consistent with having been hit by a moving vehicle of some kind. He claimed fear of being handed over to the loan sharks by his father.
[The applicant] also claimed to the delegate that after he returned from [Country 2] to Guinea in 2017 he got a Mandingo woman pregnant. He said she was killed in August 2017 by her tribe which then approached his family to ask his whereabouts. He claimed he would be killed by Mandingo religious elders on return or removal to Guinea.
[The applicant] indicated to the delegate that he had never suffered any harm arising from his father’s political affiliations. He said he himself had never been involved in politics. He was later to confirm this to me, saying that the reason he had never been involved in politics was that he was too young to get involved in the 2010 elections and happened to be residing outside of Guinea during the 2015 elections. This did not explain his general lack of involvement while he did reside in Guinea, leaving me to conclude that he has no genuine interest in politics in Guinea and is not, and will not be, imputed to have such interest.
Regarding the loan shark issue, [the applicant] provided evidence that caused the delegate to raise with him questions of consistency and credibility. On the one hand he said that when he borrowed the money he did not know or suspect that the lenders would use criminal means to pursue repayment of the loan with interest; on the other, he claimed that at the time his housemate was having problems with loan sharks who killed him in April 2017. Also, whereas he claimed that he borrowed the money to purchase clothes and personal items, he also claimed that allowances from his father explicitly covered expenditure on such items. He went on to tell me that his father in fact financially supported him in [Country 2] and also gave him $3,000 in connection with his imminent travels to Australia to spend on clothes, books and other things. He gave me evidence to the effect that he was still receiving remittances in [Country 2] from his father in Guinea at the time of the alleged loans.
The delegate asked [the applicant] why he did not mention the loans or the relationship with the Mandingo woman in his original protection visa application, or during his bridging visa interview after release from remand. In reply, [the applicant] evidently said that he had not felt on those occasions that they were the right moments to mention such things. He said he had decided instead to look forward to the PV interview with the delegate. He was later to give me a very different reason for both omissions. (See below.)
The delegate drew negative inferences from [the applicant’s] delay in bringing both of these claims to light.
Evidence to the Tribunal
[The applicant] submitted two articles relating to the historic treatment of the Fulani in Guinea as well as a travel advisory notice from the NZ government regarding the safety, or otherwise, of travel in Guinea, highlighting tribal conflict in the country. I have duly considered these reports.
During the hearing, we discussed the claims about [the applicant’s] grandfather, the political activities of his father and his own lack of political involvement. However, much of the focus of the hearing was on the new claims about the loan sharks and the relationship with the Mandingo woman. [The applicant] introduced information relevant to both of these claims that was inconsistent with what he had told the delegate. He told me that the loan sharks only contacted his family once, in February 2020, whereas he had told the delegate they had been calling his family over a period. Also, he told me that his family knew nothing to this day of his problems with the Mandingo tribe over his relationship with their late daughter, whereas he had told the delegate that religious elders had come to his family to settle the score in this matter soon after he left Guinea for Australia.
In addition, [the applicant] gave me a completely new explanation for not having raised the claims about the loan sharks and the relationship with the Mandingo woman in his original protection visa application. The explanation is reliant on some other information that [the applicant] gave me earlier in the hearing, starting with some background information about his family.
[The applicant] told me his father is [one occupation] and his mother is [another occupation]. They have therefore had regular and relatively viable income for a very long time. [The applicant’s] [brothers], both residing in Kamsar, are both university graduates who have not yet found employment; their father is supporting them. [The applicant] said his father supported his travel to and from [Country 1] and [Country 2] and his study and residence in both countries and financially supported him in Guinea. At about the time he returned to Guinea from [Country 2], his student visa was issued. He waited three months in Kamsar and was not evidently approached by any loan sharks who, he has indicated, knew his home address and had access to Kamsar. Asked why he waited in Guinea for three months before coming to Australia, [the applicant] said his course in Australia had not been due to start until June, when he eventually did travel. He said that by staying in Guinea he could save on rent and expenses that he would have incurred in Australia. He did not answer the question by mentioning the relationship he was supposedly having at the time. He did not appear, from what he told me, to have weighed the option of waiting in Guinea against the risk of being located and confronted by the loan sharks.
As noted, [the applicant] told me his father gave him $3,000 to spend on clothes and other things he might need in Australia. He said his father paid for his air ticket and tuition fees a year in advance and then sent him $[amount] every three months. He did not need to find part-time work in Australia while studying.
[The applicant] said he commenced studies towards a [specified] degree but ceased attendance (in breach of his student visa conditions) in April 2018, which was the month after he lodged his partner visa application. He said he ceased attending classes because he no longer had financial support from his father. However, he evidently contradicted this when he said that his father sent him $8,000 to help pay for his partner visa application which he lodged in March 2018 and that the feud, as he called it, with his father began after the partner visa application “didn’t work out.” That would have been around [July] 2018 when he withdrew from the application. In any event, by all this evidence, [the applicant] ceased attending classes because he perceived himself to have another pathway to migrate here permanently, consistent with his family’s wishes, as described in his protection visa application form, of finding a better and more secure life abroad.
[The applicant] told me that his father sent him no more money after that and that he became homeless in Australia. He said he briefly worked between February and July 2018. He confirmed that he had intended to go back to Guinea with his former fiancée for a wedding ceremony but cancelled that plan when the relationship ended.
[The applicant] acknowledged that by the time he became homeless he envisaged his student visa eventually being cancelled and his status here changing to “unlawful.” He said he did nothing because he was “waiting.” I interpreted this to mean that he fell into a depression, a “funk,” as it were, and he said, “Yes.” I asked him if, at the time, he retained a valid ticket for return to Guinea and he said that he considered going home at the time.
The information described above is particularly relevant to the question as to why the claims about the loan sharks and the relationship with the Mandingo woman, whose tribe harassed his family, did not appear in [the applicant’s] original protection visa application. When I put that question to [the applicant], he said that he gave inconsistent responses, particularly with regard to the loan shark claims, saying that his brother did not tell him of the February 2020 injury until he was released from remand in May 2020. I put to him, as the delegate had done, that this did not explain why he omitted referring to it in interviews in May 2020 or in his protection visa application form in June 2020; in response, he provided an explanation not previously provided to the delegate: he said that, after he was released from remand and had obtained his bridging visa, he decided to apply for protection, needed to show his protection visa application form to his father “to get his views” before he lodged it, and did not want his father to find out about the loan or the pregnant Mandingo woman. He told me that his father knew nothing about the loan or about the Mandingo woman and that he did not want his father to find out about it by reading about it in the protection visa application form.

I asked [the applicant] why he had needed to show his father his draft protection visa application before lodging it. In the course of answering this question he contradicted his claim about seeking his father’s advice on the draft application and said he just sent it to show his father he was doing something to try to regularise his status in Australia to show that he was sorting out his life here after having failed to obtain a degree, having failed to marry his former partner and having found himself charged with a number of offences. He referred to his father having wasted eight years of investing in him. This information was inconsistent with evidence he had previously provided about his family having been approached by the loan sharks over the period between November 2019 and February 2020, or merely on one single occasion in February 2020; it was also inconsistent with [the applicant] having told me at the hearing that his father paid the loan sharks the borrowed principle of $[amount] to leave the family alone and “just focus on me.” By this evidence, the family knew the risk [the applicant] faced from the loan sharks, if he did not pay off the accrued interest, and in essence did not care to intervene. The explanation about the draft protection visa application form was also inconsistent with [the applicant] having told the delegate that Mandingo religious elders harassed his family for information about him back in 2017. According to this evidence, there was no logical reason for avoiding mention of these claims in the draft he sent his father. In addition, as I put to [the applicant], if all he was doing was showing his father that he was doing something to “sort out” his status in Australia, he could still have re-drafter the protection visa application before lodging it with the Immigration Department; in reply, he said that was one way he could have proceeded.
I drew [the applicant’s] attention to all the claims in his case relating essentially to events and situations that preceded, or at least originated, before his arrival in Australia and to the apparent incongruity, in these circumstances of his having intended to return to Guinea in 2018 to be married there and the intention to return to Guinea that he declared and spoke to in his October 2019 bridging visa application. He said he decided to go home after his student visa was cancelled and even approached IOM for assistance with the logistics but changed his mind after thinking about Guinea’s poverty and racial conflicts as well as his position with the loan sharks and his late sexual partner’s tribe. I reminded him that all of these factors purportedly existed before or at least soon after he came to Australia, and he said that he was unaware of the protection visa pathway at the time that he applied for his bridging visa. This struck me as hard to accept because the Department’s website information page for prospective bridging visa applications[3] displays information about subclass 500 and subclass 501 alongside of each other, offering the reader the option of pursuing the departure pathway or the protection visa pathway on the one page. It is hard to conceive that [the applicant], who is fluent in English, saw only one side of the webpage, discussing departure (subclass 050), and did not look at the other. In this light, it seemed conceivable that [the applicant’s] protection visa application was the product of oversight.
[3] Bridging visa E (BVE) - Subclass 050 and 051 (homeaffairs.gov.au)
I asked [the applicant] if it were possible that he did not want to go back to Guinea simply and solely because he had disappointed his father who had invested so much money in supporting his progress as a potential skilled migrant here. In reply, he said this was a factor in his case because his father was due to retire this year. He appeared to indicate that this meant he would not be able to receive any future support from his father. He said to me that if he returns or is removed to Guinea he will face a “big step back” after eight years of support, aimed at trying to gain a foothold in a “developed country.”
[The applicant] confirmed that the example he gave of his grandfather’s hanging in [year] was just an example of what can happen to Fulani in Guinea. I put to him that, on his evidence, nothing like that seemed to be happening to his family in Kamsar, bearing in mid the evidence stability, prosperity and progress of his parents’ and brothers’ lives there. In response, he said vaguely that his parents face the risk of being persecuted all the time in Guinea.
Findings with regard to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] 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.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] 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
[7] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is an ethnic Fulani. I accept that there is discrimination against Fulani in Guinea. I accept that the execution of [the applicant’s] grandfather happened as claimed and that this is an example of discrimination against the Fulani in Guinea at its worst; however, I give more weight to the fact that the execution occurred almost fifty years ago during a period of dictatorship that ended in the 1980s, to [the applicant’s] own words about the execution being an example of the historic rivalry and enmity between the Mandingo and Fulani, and to the evidence indicating his family having led a stable and relatively prosperous life right up to the present day in Kamsar. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Guinea for reasons of his Fulani ethnicity.
I have considered [the applicant’s] claims about the pervasiveness of corruption and poverty in Guinea but on the evidence before me, I am not satisfied that such factors, though they likely exist, give rise to a real chance of [the applicant] being persecuted in Guinea for reasons of his Fulani ethnicity.
I accept that [the applicant’s] father supports the pro-Fulani UFDG. In light of [the applicant’s] generally poor performance as a witness in this matter, I am not satisfied on the evidence he has given that his father has been arrested in connection with that support. Even if his father was arrested during two election campaigns, there is no evidence before me to suggest that he faces ongoing repression or other serious harm for reasons of his political opinion. More to the point, I am not satisfied that the evidence about [the applicant’s] father grounds a real chance of [the applicant] himself being persecuted in Guinea for any reason cited in s.5J(1)(a) of the Act.
I accept that [the applicant] attended the mass commemoration event in 2012 and that he was hit on the head by an opponent, possibly a police officer. However, none of the evidence before me suggests that this was other than an isolated episode. In any event, this commemoration gathering aside, [the applicant] says he has never been involved, or perceived to be involved, in politics either partisan or tribal or both. He says that the reason for this is that he was too young during one election and abroad during the next. This evidence, in my consideration, discloses a fairly facile comprehension on [the applicant’s] part as to what it means to be politically involved, for all it suggests is that [the applicant] might only be interested in Guinean politics when its five-yearly elections are about to come around. On the evidence before me, I find that [the applicant] has not been involved in politics and would not be in the reasonably foreseeable future because he is simply not interested.
I note that [the applicant] is a Muslim. However, he has not even implied that he faces a real chance of being persecuted in Guinea even cumulatively for reasons of religion. On the evidence before me, I am not satisfied that he faces being persecuted in Guinea for such a reason in the reasonably foreseeable future.
On the inconsistent evidence before me I do not accept [the applicant’s] claims about the loan sharks or the Mandingo woman who fell pregnant to him. I regard both of these claims as complete fabrications that were intended as means of strengthening [the applicant’s] case for a protection visa.
I give some weight in this case to the evidence of [the applicant] having been prepared to return to Guinea at least p until October 2019. I note that the alleged episode involving his brother is said to have occurred in February 2020 and that such a subsequent event, if it occurred, could reasonably change a person’s mind. However, on the evidence before me, whilst I can accept that [the applicant’s] brother was injured by unexpected impact with a moving vehicle in February 2020, I do not accept that the brother was injured in the circumstances claimed in the oral evidence before the delegate or me.
Ultimately, I find that [the applicant] wanted to improve his life by coming to and settling in Australia but not for any of the relevant, substantive reasons claimed in this case. I find that he laid out the core and only true reason for the present application in what I have recorded at paragraph 41 above.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Guinea in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings with regard to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
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.
Accepting that [the applicant] is a citizen of Guinea, I find that Guinea is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”. Notwithstanding his claims about his grandfather, I find that he is not claiming fear of being subjected to the “death penalty.”
In any event, [the applicant’s] claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due, in many instances, to a lack of consistency and reliability and/or to their not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Guinea, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5560

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