2109281 (Refugee)

2109281 (Refugee) [2022] AATA 5036 (10 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Agita George Antoon
CASE NUMBER:  2109281
COUNTRY OF REFERENCE:                   Poland
MEMBER:Shahyar Roushan
DATE:10 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration and directs that 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 the applicant will suffer significant harm.

Statement made on 10 November 2022 at 12:52pm
CATCHWORDS
REFUGEE – protection visa – Poland – Federal Circuit Court remittal – theft of boxes containing sensitive intelligence files – fear of former communist Party leaders, members of the Solidarity Party, members of the current government and various criminal groups –threats of harm by criminal gangs – serious injuries inflicted by criminal associates – likelihood of further charges and incarceration – repeat drug offender – risk of harm associated with arrest and incarceration – subject of extradition request – Tribunal's power to determine s 36(2C) issues – complementary protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 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
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2019 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old national of Poland. He arrived in Australia [in] 2009 from [Country 1] as the holder of an eVisitor Visa (Class TV) (Subclass 651). He was arrested upon his arrival for importing a commercial quantity of a border-controlled drug. He was subsequently convicted and sentenced to [number] years [imprisonment].
In [2016], the applicant absconded from prison. [He] was convicted and sentenced to a further [term of] imprisonment. [In] 2018, following the completion of his sentence, his Criminal Justice Stay visa was cancelled and he has been held in immigration detention ever since. He is currently detained in [an] Immigration Detention Centre.
The applicant lodged an application for a Protection visa on 14 January 2019, which was refused by a delegate of the Minister on 12 February 2019. He subsequently applied for a review of the delegate’s decision, and on 24 May 2019 a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.
On 1 August 2019, the applicant applied to the then Federal Circuit Court of Australia for a review of the first Tribunal’s decision. The application was dismissed [in] 2020 as it was lodged out of time. He then applied to the Full Federal Court of Australia for a review of that decision but subsequently withdrew the application.
On 23 July 2020, the applicant lodged another application to the Federal Court of Australia for a judicial review of the decision of the Federal Circuit Court of Australia to refuse his application for extension of time to file a review application. [In] 2021, the Federal Court of Australia set aside the decision of the Federal Circuit Court of Australia. On 15 July 2021, the Federal Circuit Court remitted the matter to the Tribunal by consent to be reconsidered and determined according to law.
The matter was reconsidered by the presently constituted Tribunal (the Tribunal).
Claims and Evidence
Protection visa application
According to his application for a Protection visa, the applicant was born in [location], Poland and resided at various addresses. He is divorced and has a son and a daughter from his previous marriage. He also has a son who was born in Australia. His father is deceased, and his mother continues to reside in Poland. His only brother lives in [Country 2].
The applicant attended primary and middle school in Poland and sometime later he completed [a course] at a technical college in Warsaw. Before commencing his compulsory military service in January [year] and following its completion some eight months later, he worked as a [occupation] in Warsaw. From 1995, onwards he did not have a regular source of income and spent periods of time in prison (see below). He claims to have been employed as a manager and subsequently a vice director of a company in Warsaw between July 2006 and July 2008.
The applicant was imprisoned in Poland on three separate occasions: from 1995 to 2002, from 2004 to 2006, and from February to September 2007 after being convicted of numerous offences, including [deleted].
In July 2008 he departed Poland and travelled to [Country 1] where he resided until October 2009 when he came to Australia.
In his Protection visa application in response to questions in relation to why he did not wish to return to Poland, the applicant made the following claims.
He fears being killed by ‘former communist Party leaders, members of the Solidarity Party; some members of the current government with ties’ and the 'grypser' criminal group.
In [year], whilst completing his military [service], he stole two boxes of [documents]. One of the boxes marked ‘SB’ (Służba Bezpieczeństwa or Ministry of Public Security) revealed the names of ‘front bench politicians’ and contained other files relating to ‘SB collaborators’. He later took the boxes to his parents’ house.
His parents both previously worked for the Polish People's Republic and his father was ‘a high-ranking officer in [Department 1]'. His father told him the boxes also contained [sensitive information about him (the applicant’s father)] and advised him to bury the documents at their ‘holiday home’. When he returned to the base, he was asked to sign ‘a secrecy agreement’ that detailed punishment for any breaches.
After being discharged, he decided to try and sell a few of the documents he had stolen. His father told him that a man by the name of Marek Papala might know people who would be interested in buying the files. After the sale, his father told him that he felt Papala would cause problems for them.
His father was subsequently found dead by his mother at home shortly after being interrogated by UOP (Urząd Ochrony Państwa or Office of State Protection) officers. He believed his father was killed as a result of the UOP security forces
After the death of his father, he ‘suffered very badly at the hands of the criminal gangs and officers’ while he was in prison. His [Body Part 1] was broken and he ‘suffered partial but temporary paralysis’ as well as [another injury]. These incidents happened ‘because [his] father was a high-ranking officer within the (at the time) [communist government].’ After his father was killed, he was beaten by both UOP and BOR (Biuro Ochrony Rządu or State Protection Bureau) officers on a number of occasions between 1995 and 2007. They wanted to know the location of the files.
In 1995, the applicant moved to [Country 3] using a false passport. He was subsequently arrested and returned to Poland. Upon his arrest in December 1995, he was questioned ‘specifically in relation to the 'J. Oleksy files.’ His father had sold these files to Papala and another man by the name of Edward Mazur. His father also sold files relating to Jarosław Kaczyński and Jacek Kuroń.
In 1996, he was questioned by BOR in relation to a file relating to Włodzimierz Cimoszewicz. During the interrogation, he was beaten, and his [Body Part 2] was broken.
In 1998, he was again beaten badly by UOP officers who questioned him about the ‘SB’ files and how he knew Edward Mazur. He faced the same treatment in 2001. In 1998, while in prison, he contacted the Human Rights Commission, but did not receive a reply.
In December 2003, he was ‘tortured’ in prison by five members of the grypser gang, who had become aware of the existence of the ‘SB’ files that the UOP and BOR wanted. They had a financial interest in the files and wanted the applicant to either pay them ‘protection money’ or reveal the location of the files.
In 2004, he was arrested and ‘falsely’ accused of ‘snatching a phone and conspiracy to intimidation’. UOP officers again questioned him about the files and tapes. They also interrogated him about Edward Mazur. In the same year, he went to [Country 4], but he was returned to Poland after ‘misplacing’ his ID card. Upon his return, he was charged with ‘conspiracy to intimidate’ and ‘of having no passport’, even though a passport is not required to cross from Poland to [Country 4]. The UOP told him they could make the charge go away if he agreed to give them the files. When he refused, they beat him badly, breaking his [Body Part 1] and leaving him partially paralysed.
In 2006, while in prison, he was poisoned and fell unconscious. He was then ‘dumped’ at a bus stop. A passer-by called an ambulance, and he was taken to a hospital in Warsaw. He spent two weeks in hospital.
In 2008, the grypser gang broke into his apartment in Warsaw and beat and tortured him for hours. He agreed to sign over his apartment to them and subsequently escaped to [Country 1]. The apartment, however, was registered under his brother’s name, which made the contract ‘void’. This infuriated the grypser gang and they ‘put a bounty’ on his head. This bounty is ‘open-ended’ and is still in force. If he returns to Poland, he will be falsely charged, imprisoned, tortured and killed.
In 2015, his son, [Mr A], moved to [Country 4] because the gang was still after him (the applicant) and targeted his son for ‘payback’.
Edward Mazur, who bought some of the ‘SB’ files, is connected to a number of politicians, including Zbigniew Ziobro, Leszek Miller, WłodzimierzCimoszewicz, Jaroslaw Kaczyńsk, Janusz Bojarski, and Zdzislaw Skorza. These are some of the people mentioned in the files and tapes. These figures want their past activities to be kept secret to protect their positions of influence. They want the files and the applicant destroyed. Edward Mazur is after the files and will use his connections to kill him.
By starting this ‘visa application process’, the Polish government of Zbigniew Ziobro will charge him with treason for the theft of the files which are of national security importance. He will be imprisoned and will be in danger all over again. The Polish authorities cannot protect him because they are ‘corrupt and power-seeking’. The files contain information which can be used to potentially blackmail other politicians.
Supporting documents
The applicant submitted a large number of supporting documents to the Department, including numerous untranslated documents in Polish.
·Extracts from Wikipedia entries in relation to a number of Polish politicians and public figures, including Leszek Miller, Zdzisław Skorża, Włodzimierz Cimoszewicz, Zbigniew Ziobro, Janusz Bojarski, Jacek Kuroń, Edward Mazur, Marek Papala, Stanisław Kostrzewski, Jarosław Kaczyński, Andrzej Kryże, Henryk Niewiadomski, Służba Bezpieczeństwa, Józef Oleksy and Secret collaborators of Wojskowa Służba Wewnętrzna (WSW).
·Copy of a document titled ‘Archival inventory’ displaying the result from a document search at the [former Communist government Department 1]. The search results show ‘Examination Cards’ and an index regarding the applicant’s father, [Mr B].
·[Government] document search results, showing [Mr B] had a remuneration card and had written a [thesis] in 1986 when he was at [Department 1].
·Copy of an extract from an undated article from an unspecified source, titled ‘Cenckiewicz reveals: Edward Mazur was an informer of the SB’.
·An undated article from an unspecified source regarding former SB collaborators.
·An undated document commenting on the ‘many people in the establishment of the Third Polish Republic who had some involvement in treason’ but have not been investigated.
·Copy of an undated article from an unknown source titled ‘Torture in Poland on the agenda’ which reports on ‘abuse of power’ and people in prisons and mental health hospitals being ‘seriously exposed to ill-treatment’ including being beaten by police officers.
·Copy of a document which evidences the existence of a TV series by ‘The TVDB’ on the grypser gang in Poland.
·Copy of an abstract from an article published in January 2016 on the ‘transformation of the communist state security organs – the Security Service of the Ministry of Internal Affairs – into a state protection service (such as the UOP)’.
·Copy of an online news article dated 6 March 2017 reporting on totalitarianism and corruption, and the ‘politicisation of the law’ in Poland.
·Copy of an online article dated 23 June 2016 from an unknown source titled ‘Evidence that the prosecution and court mafia rules in Poland, that is how the prosecutor’s office, and the courts are faking off the evidence with impunity and make false sentences based on this evidence’.
·Copy of an undated article from an unknown source reporting on the ‘activities of colonel Vladimir Alganow from the KGB’.
·Copy of an online article dated 11 May 2017 titled ‘Judge of the Constitutional Court of Law and Justice: Politicians and judges are corrupt, the government is against homosexuals, and the constitution is a drama’.
·Copy of an undated online article titled ‘Politicians and party activists are the most corrupt’. The article reports on corruption in politics, health care, courts and prosecutors, central officers, and police.
·Copy of an article dated 11 March 2014 regarding Józef Oleksy and his activities as part of the ‘Agential Operational intelligence’.
·Copy of an email dated 30 December 2018 from [Mr C] addressed to the applicant, warning him that ‘they know that you came out and they are waiting for you’.
·Copy of an email dated 23 December 2019 sent to the applicant by his son, [Mr A], stating that he was forced to leave Poland and his family because ‘some gangsters’ had threatened, intimidated, and attacked him. He stated that ‘they’ were after the files and the applicant’s location.
·Copy of a document labelled ‘MM’ in which the applicant stated that in 1994 after his father sold the last files on Jarosław and Lech Kaczyński, ‘bad things began to happen such as multiple break ins and blackmail’. The applicant stated his father told him to change the files’ hiding place and to not tell anyone. His father died the following year.
·Copy of an article from an unknown source, dated 6 November 2013 titled ‘How the SB files were destroyed’. The article noted that the process of mass destruction of documents at the Ministry of Internal Affairs in 1988/1989 and that ‘the files of secret collaborators, operational cases against the opposition and documents of the department fighting the Church and religious organisations, legal materials, general guidelines, operational manuals, and training materials were destroyed’.
·Copies of online news articles reporting on the ‘illegal destruction’ of Military Internal Service documents.
·Copy of an online article dated 30 January 2011 titled ‘Persons who are injured as a result of false testimony by state officials and false expert opinions have no protection in Poland’.
·Copy of an article published in 2007 titled ‘US millionaire accused in murder of police chief’, which reports that ‘Poland is trying to extradite millionaire businessman Edward Mazur to stand trial for arranging Papala’s death’. This was accompanied by an undated article reporting that ‘Edward Mazur, who had been cleared of charges of indictment to murder, was considered one of the main suspects in this case for many years’.
·A psychosocial report, dated [in] 2018, prepared by a NSW Legal Aid Social Worker and Referral Service Consultant for [a] District Court. The report provides details about the applicant’s time living in the community after escaping custody in NSW. It notes that the applicant made his way to [location] where he found accommodation and employment and commenced a de facto relationship with [Ms D]. [Ms D] is pregnant with his child and will give birth in [year]. The report notes the applicant’s intention to apply for a Protection visa in an attempt to forestall deportation to Poland prior to being released from prison.
·Copies of photographs showing scarring on the applicant’s arm and body.
·Copy of an International Certificate of Vaccination or Prophylaxis issued to the applicant.
The interview
The applicant attended an interview by telephone from [an] Immigration Detention Centre with a delegate of the Minister on 7 February 2019. The interview was conducted with the assistance of an interpreter in the Polish and English languages. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal’s analysis below.
The delegate’s decision
The delegate expressed concerns in relation to the applicant’s credibility, arising from implausibility of his claims and inconsistencies between his written claims and oral evidence at the interview. The delegate accepted that the applicant may have suffered harm due to his criminal associations in the past. However, the delegate rejected the applicant’s claims that, due to the theft, the subsequent sale of some documents, and his failure to turn over these documents, he suffered ongoing harm at the hands of the Polish authorities, criminal gangs or other individuals. The delegate also rejected his claim that he has been subjected to trumped up charges as a result. The delegate did not accept that the applicant would face harm for the reasons he has provided, including his father’s occupation as a former communist era [officer] and his past encounters or associations with criminal gangs in Poland.
Furthermore, the delegate found that there is no real risk that the applicant will face significant harm if he was sentenced to a term of imprisonment in Poland for any undisclosed criminal charges. The delegate found that the applicant would be afforded due process and any potential outstanding criminal matters that the applicant may face in the future would be dealt with according to Polish law. In addition, the delegate was not satisfied that the applicant faces a real risk of significant harm due to prison conditions in Poland.
The Review
On 15 February 2019, the applicant applied for a review of the delegate’s decision.
The first Tribunal
The applicant appeared before the first Tribunal on 25 March 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Polish and English languages. The applicant’s friend, [Mr C], also gave oral evidence at the hearing over the telephone from Poland. Where relevant, their oral evidence to the first Tribunal is referred to below.
At the hearing, the applicant submitted a document from an unknown source, providing information in relation to Edward Mazur. According to the document, Edward Mazur left the Polish People’s Republic in the 1960s, spent some time in South America, and was granted citizenship of the United States in 1969. The document outlines Edward Mazur’s activities after 1989, stating that he was detained in October 2006 ‘on suspicion of commissioning the murder of police superintendent Marek Papala’. However, the extradition request was dismissed in 2007 by a court in Chicago. The applicant also submitted an article published on 30 July 2007 and titled ‘The Strange Case of Edward Mazur’ which contains speculations about Edward Mazur’s involvement in the murder of Marek Papala.

In addition, the first Tribunal was provided with a written statement from the applicant’s son, [Mr A], stating that the applicant had fled to [Country 1] after being seriously beaten and tortured in July 2008. In 2009, some ‘unknown people’ came to his house to look for his father. After he was interrogated, beaten and threatened with a knife, he told them that his father was in [Country 1]. They started to visit him regularly until 2010 when he broke down and told them that his father was in prison in Australia. They returned again in 2013 to look for his father. They vandalised his car and threatened to kill him.
[Mr A] stated that in 2015, he received a call from his father who ‘begged [him] to run’. He fled to [Country 4], leaving his wife and child behind in Poland. In 2016, he rang his [cousin], who used his contacts with a gang in Warsaw to get information about his father and was told that there was a ‘price on his head’. He told his father not to return to Poland. After this conversation, his father escaped from a minimum-security prison. They kept in regular contact until his father was caught in December 2017. He stated that ‘those same dangerous people’ are still looking for him and his father in 2019. His cousin informed him that his house is under constant surveillance.
The first Tribunal’s decision
On 24 May 2019, the first Tribunal affirmed the Department’s decision to refuse to grant the applicant a Protection visa.
The first Tribunal made adverse credibility findings in relation to the applicant’s claims and found that he had entwined a fanciful political conspiracy into his otherwise accepted history involving his father’s background, criminal activities and long-term imprisonment. The first Tribunal disbelieved the applicant’s claims to have stolen files and tapes that included very sensitive material against some of the wealthiest and politically influential people in Poland. As such, the first Tribunal did not accept that the applicant has ever been or is a person of interest to the UOP, the SOP,which replaced the BOR, or any other law enforcement agency within Poland including the Polish police, courts and prisons for the reasons claimed in his Protection visa application.
The first Tribunal found that in the context of the applicant’s criminal history and long periods spent in custody, it is plausible that he holds fears of certain members of Poland’s criminal underworld or specific organisations like the grypsers. It accepted the applicant’s claims that he gifted his brother’s apartment to a criminal organisation despite having no legal right to do so, indicating that he owes money to such a criminal enterprise and that they would be enraged that he deceived them when he left for South America. The first Tribunal found that the applicant did face a real chance of serious harm, arising as a person of interest to members of organised crime in Poland if he were to return to his home country in the foreseeable future.
However, based on the available country information, the first Tribunal was satisfied that the Polish state was willing and able to offer the applicant protection against persecution regardless of his criminal background. The first Tribunal concluded that as effective protection measures were available to the applicant anywhere in Poland, the applicant did not have a well-founded fear of persecution by operation of s 5J(1)(a) and s 5LA.
On 15 July 2021, the Federal Circuit Court of Australia remitted the matter to the Tribunal by consent. The Minister conceded that the Tribunal erred in its application of the requirements of s 36(2B)(b) of the Act by failing to consider the applicant’s particular circumstances when assessing whether he could obtain protection from a Polish authority such that there would not be a real risk of significant harm from organised criminals.
The present Tribunal
Following the remittal of the matter to the Tribunal, the applicant forwarded the following documents to the Tribunal.
·Extracts from a large number of news articles and reports from various sources published over the past 20 years, regarding criminal gangs, including the grypser gang, the mafia, deaths of high-profile individuals, such as Marek Papala, corruption, judicial independence, police brutality, prison conditions and human rights situation in Poland.
·Copies of court documents relating to the applicant’s previous applications for judicial review at the Federal Circuit Court of Australia.
·Copies of screenshots of what appears to be an article written in Polish. The applicant’s annotated notes state that this relates to the case of Artur Celmer, ‘whose extradition from Ireland to Poland (on the basis of the European arrest warrant) was suspended by a court in Dublin due to concerns that Poland – due to changes in the judiciary – would not guarantee him a fair trial’ (sic).
·A document written in English from an unknown source stating that ‘OKO.press and the Osiatyński Archives together with the Norwegian Rafto Foundation are starting a civic project devoted to people whose authorities are trying to force them to withdraw from public activity’ (sic).
·Screenshots of news articles from unspecified sources reporting that in 2019, courts in the Netherlands had suspended or refused extradition to Poland of suspects prosecuted under the European Arrest Warrant due to concerns about the state of Polish courts.
·Two screenshots of what appear to be text messages in Polish and a photograph from unspecified sources.
The applicant also submitted a poor illegible copy of an untranslated document written in Polish, which appears to be addressed to the applicant at an address in Western Australia.
On 27 September 2021, the applicant appointed Ms Agita Antoon as his representative in relation to the review.
Pre-hearing submissions
On 1 November 2021, Ms Antoon made a submission to the Tribunal, outlining the history of the applicant’s case, his criminal convictions and prison sentences in Australia.
Ms Antoon submitted that the applicant’s claim for protection arises from his fear of harm by former Communist Party leaders, members of the Solidarity Party, some members of the current government, and a group known as the ‘grypser’ criminal organisation. The applicant’s fear stems from the theft of boxes containing secret and confidential intelligence [files] while working as an army recruit and the involvement of his father, who was a high-ranking officer in the communist [government]. In addition, he fears harm from the grysper gang, to whom he promised money that he did not have in return for protection.
Ms Antoon commented that contrary to the findings of the delegate of the Minister, it is not unlikely that the applicant stole the documents as there are reports of other individuals carrying out similar acts. She stated that the applicant was not afforded procedural fairness as there was no basis for rejecting this claim. She also stated that the applicant did not claim to have known Edward Mazur or Marek Papala as it was his father who had dealt with Marek Papala and all the information provided to the Department was based on what the applicant was told by his father.
Ms Antoon stated that the delegate made references to Edward Mazur migrating to the US in the 1960s and becoming a US citizen in 1969, with the underlying assumption that he never returned to Poland. However, an article published on Wikipedia noted that Mr Mazur became involved in a number of business ventures in Poland following the collapse of the communist rule in 1989. She submitted that, contrary to the US State Department Reports relied upon by the delegate, there is evidence of politically motivated killings in Poland.
Ms Antoon objected to the delegate’s finding that it was not plausible that the applicant would have resisted handing over the documents considering the significant harm he faced as a result of the possession of those documents. She submitted that the applicant feared being killed once he handed the documents over, and that those seeking to recover the files would not kill the applicant as long as the files’ location remained undisclosed, as they would have no other way of finding the documents.
She submitted that there was no basis for the delegate’s finding that the applicant is not a ‘witness of truth’, and that the lack of evidence to support his claims of being coerced into drug smuggling should not be used to suggest that his claims are untrue. She stated that these threats are generally undocumented and the applicant’s willingness to participate in such a crime supports the view that he was desperate to leave his situation in Poland.
In relation to the first Tribunal’s reasons, Ms Antoon submitted that there is a high likelihood that the applicant could not obtain protection from the Polish authorities such that there would be a real risk of significant harm from organised criminals. She stated that the Tribunal had relied on Poland being a member of the European Union and signatory to its human rights charter. However, a recent article in relation to the treatment of refugees in Poland, ‘paints a different picture’ of the actions of the Polish government with respect to adhering to European and international law. She also submitted that the country information relied upon by the Tribunal focused on the existence of a system of criminal law and legal and judicial processes but did not address whether the applicant would be protected from harm at the hands of organised criminals. It was submitted that such protection is not available in Poland.
Ms Antoon further submitted that the available country information does not always record the reality of what actually happens within Poland, particularly in light of the prevalence of corruption. She stated that the first Tribunal had accepted that as a consequence of the applicant being removed from Australia to Poland there is a real risk that he would face significant harm by members of criminal organisations. As there are no effective protection measures available to the applicant, Ms Antoon submitted that the applicant meets the criteria for the grant of a Protection visa.
In support of the submission, the following additional documents were provided to the Tribunal.
·Copy of a news article published by Notes From Poland on 12 October 2020 and titled ‘Communist security service files found hidden in private home in Poland’. The article states that many documents from the communist era disappeared after 1989 with some being destroyed and others ending up in private hands. It reports that in 2016, the Institute of National Remembrance (IPN) seized ‘hundreds of pages of documents’ from the home of Czeslaw Kiszcak, who led the interior ministry from 1981-90, after his widow tried to sell them following his death.
·Copy of a news article published by the San Diego Tribune on 30 October 2020, titled ‘Poland seizes communist-era security files headed for US’. The article reports that ‘the IPN jointly with the Internal Security Agency retrieved 100 secret security documents from 1970-90 that were in the possession of a former Communist-era intelligence officer’.
·Copy of a Wikipedia page on Edward Mazur stating that ‘he became involved in a number of his own business ventures in Poland after the end of the Communist rule in 1989’.
·Copy of a news article published by The Guardian on 8 October 2021, titled ‘Polish court rules EU laws incompatible with its constitution’. The article reports on a decision by Poland’s Constitutional Tribunal ruling that ‘some provisions of EU treaties and EU court rulings clashed with Poland’s highest law’, which experts label the ‘furthest step towards a legal exit from the EU ever taken by a national court’.
·Copy of a news article by World Socialist Web Site, dated 6 October 2021 and titled ‘Six refugees die at the Polish-Belarusian border as illegal deportations in the EU rise’. It reports that contrary to international obligations under the Geneva Refugee Convention and the European Convention on Human Rights, the Polish authorities have refused to accept the asylum applications of refugees who arrived on the Polish-Belarusian border.
·Copy of an article sourced from Notes From Poland, dated 29 January 2021 and titled ‘Poland falls to lowest ever ranking in global corruption perception index’. It reports that Poland was ranked 45^th out of 180 countries. The decline is attributed ‘to the erosion of rule of law, judicial independence and democratic oversight as factors that allow corruption to flourish’. This is accompanied by a copy of the ‘Corruption Perceptions Index 2020’ published by Transparency International.
·Copy of an article titled ‘Offense committed abroad (Art. 109)’ dated 17 February 2011. The article states that ‘when a Polish citizen commits a crime abroad, the Polish criminal law applies to him’ and that ‘after returning to the country, he will be held accountable by a Polish court’.
·Copy of a news article titled ‘The Polish mafia, the bridle on the neck Gangsterism flourishes in Warsaw without the police being able to act’ (undated). The article reports on the ‘growing crime scene since the change of regime in 1989’. It notes that ‘police efficiency remains low’ and that there is lack of willingness to file a complaint for fear of reprisals from mafia groups.
The first and the second hearings
The applicant appeared before the Tribunal on three separate occasions to give evidence and present arguments. He first appeared before the Tribunal by video on 4 November 2021. Due to time restrictions and the nature of the applicant’s evidence, the hearing was adjourned and resumed again on 15 December 2021. On both occasions, the applicant was assisted by an interpreter in the Polish and English languages. Ms Antoon also attended the hearings by video.
At the hearing held on 15 December 2021, the Tribunal took oral evidence from the applicant’s son, [Mr A], by telephone. The Tribunal unfortunately was unable to take evidence from the applicant’s other witness, [Mr C], as the telephone number provided remained unanswered. The Tribunal, however, invited the applicant to provide a written statement from [Mr C] if he wished to do so. Where relevant, the oral evidence provided by the applicant and his witness is referred to in the Tribunal’s analysis below.
Post-hearing submissions
At the second hearing, Ms Antoon agreed to provide further submissions by 18 February 2022.
On 15 February 2022, the Tribunal received a request for an extension of time until 31 March 2022. Ms Antoon stated in her request that the applicant required access to his mobile phone to retrieve information from his mobile phone ‘in relation to his files’ for the purposes of the post-hearing submissions. She explained, however, that the applicant’s mobile phone was confiscated at the detention centre sometime in December 2021 and continued to be in the possession of the Australian Border Force. Ms Antoon attached a copy of a letter of complaint to the Australian Border Force, dated 8 December 2021, and a response issued by the Australian Border Force, dated 30 December 2021.
On 16 February 2022, the Tribunal wrote to Ms Antoon, requesting further details in relation to the exact nature of the information on the applicant’s phone and the specific nature of the evidence he purported to provide. The Tribunal also stated that it was unclear as to why an extension date of 31 March 2022 had been requested for provision of submissions if there were no clear indications as to when or whether the applicant’s phone would be likely to be returned to him. In addition, the Tribunal requested an explanation as to why submissions in relation to other issues raised at the hearing, including the application of s 36(3) of the Act, could not be provided in the meantime.
On 22 February 2022, Ms Antoon made a submission to the Tribunal, contending that there was a high likelihood that the applicant would not be able to obtain protection from Polish authorities as he faced a real risk of significant harm from criminal organisations. In addition, she submitted that the applicant was unable to enter and reside in any European country as he believed false accusations would result in his extradition to Poland and imprisonment. In prison he would be likely to face the criminal groups he feared. Ms Antoon referred again to the first Tribunal’s decision and the reasons why the decision was remitted by consent.
The submission contained hyperlinks to news articles and reports relating to organised crime and criminal gangs in Poland, the situation of human rights in Poland and ‘political deaths’, as well as a link to Chapter XIII of the Polish Penal Code – Act of 6 June 1997, concerning ‘Responsibility for crimes committed abroad. Some of this material was previously submitted to the Tribunal.
Ms Antoon also forwarded a statement from [Mr C], dated 6 December 2021, stating that he had known the applicant since 1986 and that he knew the applicant’s late father, [Mr B]. He stated that in 1995, after the applicant’s father was killed, he remembered the applicant being fearful and wanting to leave Poland. The applicant told him that he was fearful because he had taken files from the army base. The applicant did not tell him exactly what was going on. He stated he knew the applicant could return to Europe because of ‘bandits who have put up a prize for him and that it is not a joke’. No one could help the applicant, who continued to be in great danger. He had heard how ‘[the criminals] will drill holes in the knees and that they use hair curlers putting in the anus where they will certainly get what they want after that’ (sic).
Finally, attached to the submission was a copy of a letter, purportedly issued by the Consulate General of the Republic of Poland in Sydney (the Consulate) on [date] (the Consulate letter) and a poor English translation of the letter, also issued by the Consulate. Both the letter and the translation appeared to be signed by the [Consul General], and featured an official wet stamp. The English translation of the letter stated:
The Consulate General of the Republic of Poland in Sydney informs about the initiation of proceedings at the request of the Deputy District Prosecutor in [City 1] regarding the invalidation of your [passport], issued [in] 2019 by the Consul of Sydney, valid [until] 2029. Justification: The District Prosecutor's Office in [City 1] in the 1st Investigation Department conducts an investigation against you. Mr. suspected of acts under Art. 55 sec. 3 of the Act of July 29, 2005 is the same procedural steps, the investigation will be suspended. [In] 2010, the [District Court] in [City 1] issued a decision on temporary arrest for a period of 14 days from the date of arrest, and then search by arrest warrant and international searches were initiated, and the extradition process from Australia to Poland was initiated. Pursuant to the provision of Art. 38 section 1 point 1b of the Act of July 13, 2006 on Passport Documents, the passport document shall be annulled at the request of the authority conducting the preparatory proceedings against the holder of the passport document. Bearing in mind the investigation of the District Prosecutor's Office in [City 1], the statutory conditions for the initiation of proceedings by the Consul in Sydney are met. (sic)
The third hearing
As the letter from the Consulate raised a number of new issues, the applicant was invited to attend a third hearing on 17 March 2022 to give further evidence and present arguments. The applicant was assisted by an interpreter in Polish and English languages. Ms Antoon also attended the hearing by video. Where relevant, the applicant’s oral evidence at this hearing is referred to further below.

At the third hearing, the Tribunal discussed with the applicant in some detail the purported letter from the Consulate. The Tribunal explained to the applicant that the letter (or at least the translation) was never previously provided to the Tribunal and the poor translation of the letter raised concerns as to the documents’ authenticity. The applicant responded that copies of the letters had been provided to the Federal Court of Australia in connection with his judicial review application. He also insisted that he had previously submitted the letter to the Tribunal. The Tribunal undertook to conduct a thorough search to locate the documents if, in fact, they had been submitted.
A search of the Tribunal’s electronic files revealed that the Consulate letter and the translation were not provided to the first Tribunal. However, as noted earlier, prior to appointing Ms Antoon, the applicant had submitted a poor illegible copy of an untranslated document written in Polish. Upon further examination this document appeared to be a copy of the Consulate letter. However, as the translation was not provided to the Tribunal, it had been unable to determine the contents or the nature of the letter.
Following the hearing, the Tribunal took a number of steps to verify the legitimacy of the letter and the translation.
On 23 March 2022, the applicant provided written consent, authorising the Tribunal to approach the Consulate General as well as the Attorney General’s Department to make enquires on his behalf. On the same date, the Tribunal wrote to the Attorney General’s Department, requesting information in relation to the existence of any extradition proceedings concerning the applicant.
On 25 March 2022, the Attorney General Department wrote to the Tribunal seeking further information to assist in processing the request.
On 28 March 2022, the Tribunal wrote to the Consulate General of the Republic of Poland in Sydney in relation to the authenticity of the Consulate letter (and the translation) and requested further information in relation to the contents of the letter.
On 25 May 2022, the Consulate General responded to the Tribunal’s enquiries, confirming that the letter dated 30 November 2019 was issued by the Consulate General and that the applicant’s passport had been invalidated. The Consulate General further confirmed that the Polish authorities have issued an extradition request to Australia in relation to the applicant and provided further additional details.
In view of the information provided by the Consulate General, the Tribunal decided that it was unnecessary to pursue its request to the Attorney General’s Department.
Further submissions
On 19 May 2022, Ms Antoon forwarded to the Tribunal a letter from a [Mr D], Attorney at Law, dated 7 April 2022, containing an English translation of Chapter XIII of the Polish Penal Code (articles 109-114a). In a note below the text of the translation, [Mr D] stated that, on the basis of the information presented to him and considering that the applicant is deemed a ‘multi-repeater (i.e a recidivist who committed the same crime after yet another conviction) for his crimes committed in the Republic of Poland [drug trafficking] he might face 22 years of imprisonment due to the fact that such act is punishable by the Article 55 of Polish Counteracting Drug Addiction Act of 29 July 2005. Therefore, pursuant to Article 114 of the Polish Penal Code, he may be convicted a second time for the same crime by a Polish court.’
On 21 October 2022, the applicant’s representative submitted on behalf of the applicant a number of news articles and extracts from online sources in relation to organised criminal groups in Poland, connection with politicians, revelations that certain prominent figures in Poland, such as Kazimierz Kujda and Jan Tomaszewski, have been linked to SB, as well as articles previously submitted to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
As outlined above, in addition to the written evidence submitted throughout the process, the applicant has provided lengthy oral evidence to the delegate and over the course of four hearings in connection with his application for review. The applicant’s claims relate to historical events dating back to [year] and spanning over a period of [number] years. Having carefully considered the totality of the evidence before it, the Tribunal formed the view that certain key aspects of his claims are manufactured, embellished, far-fetched and informed by conspiracy laden theories, fanciful speculation and paranoia, possibly stemming from his longstanding involvement in criminal activity, association with dangerous criminal groups and long periods of incarceration.
The files
Both the delegate and the first Tribunal did not accept the applicant’s claim that he had stolen two files containing sensitive information while completing his military service at an army base. The present Tribunal, however, has reached a different view. The country information before the Tribunal indicates that many documents from the communist era disappeared after 1989 and many were taken and ended up being kept in private hands, including documents taken and illegally by Security Service officers from the former structures of the Ministry of Internal Affairs.[1]
[1]Communist security service files found hidden in private home in Poland, Notes From Poland, 12 October 2020, Communist security service files found hidden in private home in Poland | Notes From Poland; Jasinska, J, Hundreds of top secret documents found hidden in ex spy’s home, The First News, 29 October 2020, Hundreds of top secret documents found hidden in ex spy’s home – The First News; an Westerby, N, Hundreds of secret police documents seized being smuggled out of country, The First News, 29 October 2020,
The Tribunal does not consider it entirely implausible that the applicant, motivated by financial gain, had stolen two boxes of ‘SB’ related documents that he had accidentally stumbled upon in the course of performing his duties. The Tribunal is prepared to accept that upon superficially inspecting the contents, he had recognised names of certain individuals on the documents and assumed that the files might be of some significance and monetary value. The Tribunal is also prepared to accept that he later took these files to his father, a [former officer], for further inspection and, due to financial hardship, they had subsequently decided to sell some of the documents in 1994. The Tribunal accepts that the applicant remained in possession of the remaining documents. However, for the reasons that follow, the Tribunal does not accept the applicant’s claims in relation to the nature of the documents sold, the significance of the documents, the identity of the person they were sold to and the manner in which they were sold. Nor does the Tribunal accept any of the other claims put forward by the applicant in connection with the actual worth or value of the documents in his possession, the authorities’ interest in any of the documents or in the applicant for having taken or being in possession of the documents. The Tribunal has formed the view that the applicant has consistently exaggerated and misrepresented the actual significance of the documents in his possession to achieve a range of favourable outcomes as explained further below.
In his evidence, the applicant explained that, in essence, these documents showed or suggested that the named individuals, all of whom were closely associated with the Solidarity movement and were vying for or had occupied positions of power in the post-communist Poland, had in one way or another collaborated with the former communist regime. He claimed that he had only inspected ‘some’ of the contents and saw signed agreements of collaboration with SB by a number of high-profile individuals. He also claimed that he considered the documents to be valuable because they could embarrass those named and destroy their careers. However, the applicant’s written and oral evidence was bereft of any other meaningful details as to the precise contents of the documents, the nature of the ‘agreements’ and the alleged collaborations or why exactly they were of such a significant value.
In his Protection visa application, the applicant had claimed that the following names were ‘on SB files’: Włodzimierz Cimoszewicz (former Prime Minister and Foreign Minister and current MEP), Józef Oleksy (former Prime Minister), Jacek Kuroń (former Minister of Labour and Social Policy), Jerzy Miller (former Minister of the Interior and Administration), Janusz Bojarski (high-ranking military officer), Zdzisław Skorża (former deputy head of the Internal Security Agency) and Andrzej Kryże (former judge and prosecutor). He also claimed that implicating ‘recordings’ of Jarsław Kaczyński (the current leader of the Law and Justice Party) were sold by his father. In separate submissions to the Department, he further claimed that his father sold the files relating to Józef Oleksy, the ‘files and tapes’ relating to Jacek Kuroń and ‘the last files’ on Lech and Jarosław Kaczyński. At the hearing, when asked if he recalled the names of the individuals he had seen in the files, he only referred to Józef Oleksy, Jacek Kuroń and Włodzimierz Cimoszewicz.
According to the applicant’s oral evidence, his father had told him that he had sold the documents and the recordings to Marek Papała, a former police chief. In his evidence, he also claimed that Papala was a mere intermediary and that the real buyer was Edward Mazur, a well-connected and an influential US-based businessman known to his father. In his Protection visa application, he claimed that Mazur is after the files, as well as his (the applicant’s) ‘life’. Mazur was claimed to be after the files to exert control over politicians. In his evidence to the Tribunal, the applicant confirmed that he had neither met Papala nor Mazur. Other than driving his father to the location where the sale took place, the applicant had no involvement in the transaction. He was also unable to provide any meaningful information as to how his father knew Mazur. He told the Tribunal that he was told by his father that Mazur was a former employee of the SB. He then added that he was not sure if Mazur was an employee, or that he was merely collaborating. When asked what Mazur’s connection with his father was, he said he was not sure. The applicant had never met or encountered Mazur and his claims appear to be based on mere conjecture and what he claims to have been told by his father. The Wikipedia and other online information submitted by the applicant in relation to Papala and Mazur point to a tale of mystery and intrigue and sensational allegations, namely the suspected assassination of Papala at the hands of Polish organised crime financed by Mazur. The applicant did not submit any other information and the Tribunal has found no persuasive evidence in any of the sources consulted to support, even tentatively, the applicant’s claims in relation to Mazur’s interest in secret service documents, being in possession of such documents or being accused of manipulating anyone in the manner suggested by the applicant. The Tribunal has significant doubts in relation to the veracity of these claims. The Tribunal considers the applicant’s claims in relation to the sale transaction, the involvement of Papala as an intermediary or Mazur’s interest in the files and/or the applicant himself to be unreliable, fanciful, based on conjecture and laced with conspiracy theories. The Tribunal does not accept these claims.
In reaching this view, the Tribunal has considered the applicant’s claim that his father had sold files in relation to Lech and Jarosław Kaczyński. Whilst the former died in 2010, the latter as noted earlier is currently the leader of the Law and Justice Party. The applicant claimed in his evidence to the Department that there was a ‘big’ demand for files in relation to the Kaczyński brothers at that time and after his father sold these files, ‘bad things’ started to happen. The Tribunal has significant doubts in relation to the existence of any damaging ‘SB’ files or tapes in relation to Lech and Jarosław Kaczyński. As it was put to the applicant at the hearing, if these alleged files or recordings contained any sensitive information, it is reasonable to assume that they would have been reported or disclosed at some point over the past three decades after they were purportedly sold. The applicant responded that perhaps ‘somebody made a profit’ or a ‘big business’ was involved, presumably in blackmailing the Kaczyńskis. It is difficult to ascertain what significance can be attached to this purely speculative explanation. In any event, the Tribunal considers it highly unlikely that the Kaczyński brothers would have designed and insisted on enacting a series of draconian amendments to Poland’s lustration laws specifically aimed at identifying any public official with links to the former communist regime (see further below) if this would have posed any risk to them or their careers. As noted by Aleks Szczerbiak, earlier in their political careers, the Kaczyński brothers knew that the leadership of the Law and Justice Party was free from security service informers and that they had this knowledge as a result of Lech Kaczyński holding the posts of head of the Supreme Audit Office between 1992-1995 and Justice Minister in the Solidarity Electoral Action-led government between 2000-2001, which allowed him to survey the files of party members and locate hidden information in relation to who would probably be the most affected by lustration’.[2] The Tribunal does not accept that the applicant or his father were ever in possession of any damaging files or recordings in relation to the Kaczyński brothers and that this material had been sold. Nor does the Tribunal accept that the applicant or his father were in possession of and had sold any damaging or embarrassing files in relation to Józef Oleksy and Jacek Kuroń. Indeed, according to the information provided by the applicant, Jacek Kuroń served as the Minister of Labour and Social Policies from 1991-1993 and was arguably no longer in that powerful position when the documents were sold. In Józef Oleksy’s case, he was specifically accused in 1995 by the then interior minister, Andrzej Milczanowski, of being a Russian spy and providing information to the KGB. These allegations forced him to resign as Prime Minister.[3] The allegations were later attributed to Marian Zacharski, an intelligence officer whom the prosecutor charged with seeking revenge because Oleksy did not accept him as director in his government office.[4] There was no evidence in any of the sources consulted to suggest that Oleksy was accused of collaboration with SB based on any secret service files. The Tribunal does not accept that the applicant was in possession of any documents in relation to the Kaczyński brothers, Józef Oleksy, Jacek Kuroń or anyone else named in his Protection visa application and oral evidence, including Włodzimierz Cimoszewicz. The Tribunal does not accept that the documents that were sold by his father of any significant value. Nor does the Tribunal accept that the documents that remain in the applicant’s possession contain any significant information or are of any value to anyone.
[2] Szczerbiak, A, Explaining patterns of lustration and communist security service file access in post-1989 Poland, SEI Working Paper No. 133, The Sussex European Institute, Draft No 2 (sussex.ac.uk).
[3] Ibid.
[4] Turek, B, Probe spares former Polish premier, UPI, 22 April 1996, Probe spares former Polish premier - UPI Archives.
As it was put to the applicant at the hearing, he had stolen the files more than 40 years ago. According to the news articles and online reports he has submitted to the Tribunal, thousands of secret ‘SB’ files have been found over the years and many have been sold and bought. Relying on these files, numerous individuals have been publicly named since the very early days of Poland’s post-communist era. In 1992, for example, Poland's Interior minister, Antoni Macierewicz, disclosed publicly the names of all senior public officials occupying the rank of provincial governor upwards at that time who had allegedly collaborated with the SB. The list was drawn up on the basis of secret ‘SB’ files.[5] In 1998, the Polish Parliament established the Institute for National Remembrance (Instytut Pamięci Narodowej (IPN)) which, apart from investigating Nazi and communist crimes and informing and educating the Polish public about the country’s recent past, was set up as the custodian of the communist security service files. The 1998 law also granted researchers, journalists and historians access to the secret archives as well as giving citizens who had been victims of secret police invigilation access to their own files.[6] Many other classified files in possession of the IPN have been declassified in recent years, including personal data of former CIA and Polish intelligence officers.[7] Other ‘truth revelations’ included disclosure by a journalist of a ‘working’ list of 240,000 persons on whom secret files existed (including former agents, military intelligence, secret informers, prospective candidates for informers, and victims). This information was posted on the Internet.[8]
[5] See Lavinia, S, Transition, justice and transitional justice in Poland, Studia Politica: Romanian Political Science Review, 2006, 6(2), 257-284.
[6] Szczerbiak, A, Explaining patterns of lustration and communist security service file access in post-1989 Poland, SEI Working Paper No. 133, The Sussex European Institute, Draft No 2 (sussex.ac.uk).
[7] IPN publishes data on former CIA, Polish intelligence officers: report, TVP World, 22 October 2019, IPN publishes data on former CIA, Polish intelligence officers: report | TVP World.
[8] Szczerbiak, n2, above. See also Gökarıksel, S, In the Free Market of Names: Polish Secret Service Files and Authoritarian Populism, Anthropology of East Europe Review 31(2) Fall 2013 30.

Moreover, the passage of a ‘lustration law’ in April 1997, required all elected state officials from the rank of deputy provincial governor up to ministers, prime minister and the president, as well as parliamentary candidates, barristers, judges, prosecutors and leading figures in the public mass media to submit written declarations stating whether or not they consciously worked for or collaborated with the communist security services at any point from 1944-1990. In addition, all statements denying collaboration were transferred to a State prosecutor, the Public Interest Spokesman, who used the communist security service secret archives to assess their accuracy.[9] These laws were radically expanded in 2007 by the Kaczyński brothers to include, amongst other changes, extension of disclosure of collaboration to ‘people filling a public function’, requiring up to an estimated 700,000 individuals (including teachers, academics and journalists) to declare if they were communist security service informants.[10] Whilst some of these amendments were subsequently struck down by the Polish Constitutional Tribunal, the existence of the laws and related processes suggests the availability of avenues of access to vast amount of information on ‘collaborators’.
[9] Szczerbiak, n2, above. According to Szczerbiak, Polish convention defines lustration ‘as being aimed at revealing whether an individual (generally an occupant of, or candidate for, a particular post) had links with the communist regime that were kept secret from the public such as working, or collaborating as an informer, for the communist security services.’
[10] Ibid.
The Tribunal considers it highly doubtful and does not accept that the handful of documents stolen by the applicant some 40 years ago contain information that is or ever was capable of embarrassing anyone with a high public profile. The applicant stated at the hearing that the declassified and other disclosed or available documents did not endanger politicians, documents that are ‘significant’ have not been declassified or found and the documents in his possession could portray the named individuals in their past life as unpatriotic. As noted above, the applicant was only able to offer very limited information in relation to the actual contents of the documents he had stolen, including the individuals named. Since 1995, he has spent substantial periods of time in prison in Poland, he departed the country in 2008 and, other than a short period, he has been held in prison and immigration detention centres in Australia since 2009. It is reasonable to conclude that the applicant is in no position to offer a satisfactory assessment of the significance of the secret service documents that already have been published or are otherwise accessible compared to those in his possession. The Tribunal rejects the implication in his evidence that the hundreds of thousands of secret service documents that have been traded, made public, accessed or declassified since 1990 have no significant value or are less damaging compared to the handful of unspecified documents in his two hidden boxes. The Tribunal is of the view that the passage of time, the various periodical ‘truth revelations’, and the operation of the lustration laws in Poland make it highly unlikely that there are any high-ranking officials in Poland who have not already been vetted or information about them is not already in the public domain. Further, as noted by Aleks Szczerbiak, the issue of lustration and file access became less salient in Polish politics given passage of time since the collapse of communism.[11] The Tribunal does not accept the applicant’s claims in relation to the documents in his possession. The Tribunal does not accept that he was or is in possession of any ‘SB’ documents that are considered sensitive, significant or capable of embarrassing anyone. The Tribunal finds that the applicant has manufactured his claims in this regard.
[11] Ibid.
As the Tribunal has rejected the applicant’s claims in relation to the nature and significance of the documents he had stolen, the Tribunal does not accept his claims that the Polish authorities had any interest in him for any reason related to the documents. The Tribunal also does not accept the applicant’s claim that his father had died at the hands of those he claims had interrogated him in connection with the stolen documents. According to the applicant’s own evidence his father had died shortly after the claimed interrogation as a result of heart failure. The only explanation the applicant provided for his view that the death was caused by his father’s interrogators was that his father did not previously have heart related issues. As it was put to the applicant, in the absence of any other evidence, it would also be plausible his father had in fact died as a result of a heart attack. The Tribunal does not accept that the applicant’s father’s death was in any way connected with the stolen documents.
With regard to the applicant’s own experiences with the authorities, he claimed to have been interrogated and questioned in relation to the files on a number of occasions between 1995 and 2007. Upon further scrutiny, however, the applicant’s own evidence suggests that on each occasion he was interrogated either after being arrested in connection with committing an unrelated criminal offence or while serving a prison sentence for the crimes he was convicted of. The applicant’s oral evidence at the hearing confirmed that at no point he was pursued, interrogated or mistreated by the Polish authorities while free in the community. When this was pointed out to him by the Tribunal, he responded that he was told in 1998 that they can always release a prisoner to harm him in the community. This, however, did not occur and the applicant was never pursued in connection to the files while free in the community. This casts serious doubt on the applicant’s claims that the authorities had any interest in him because of the files. If indeed the authorities had any concerns in relation to the contents of the files or the fact that the applicant had or has the files in his possession, it would be reasonable to assume that they would have pursued him in this regard at other times when he was free in the community with more realistic opportunities for the authorities to retrieve the documents. Moreover, as confirmed by the applicant in his oral evidence, at the time of his departure from Poland in 2008, he had obtained a passport in his own name and departed the country without encountering any problems by the authorities. The Tribunal does not accept that the applicant has ever been or is a person of interest to the Polish authorities, including the UOP, the SOP, BOR, the Polish police, any other law enforcement agency within Poland or any individual formerly employed by these agencies or their predecessors in connection with his claims regarding the stolen files, the contents of those files or being in possession of the files.
The gangs
As noted by the first Tribunal, based on the evidence presented, the applicant is a person who has been involved in criminal activities for most of his adult life. In Poland, despite claiming to have been ‘innocent’ or to have been falsely accused of certain offences, he was convicted of [a serious offence] in 1995 and was imprisoned for seven years. He was again imprisoned for two years in 2004 and a further period of five months in 2007 after being convicted of [a range of offences].
At the first hearing, the applicant stated that, in addition to his fear of ex-employees of MSW and the Polish authorities, he fears two criminal groups, namely Wolomin and Ożarowski. He explained that these groups mainly consist of former convicts, providing a platform for further criminal activity after they are released from prison. Inside the prison, members of these gangs are known as grypsers or the grypser gang. When asked why he fears these criminal gangs, he said he owes them money because they provided him with protection in prison. He further explained that, in order to secure the protection of these criminal groups, he had to tell them a story. He told them that he was in possession of secret files concerning prominent public figures and that he would be able to sell these valuable files in order to pay them. He added that these gangs are now after him because of the promise of money, as well as the belief that the files contain information that would enable them to manipulate or extort public figures. These claims are consistent with the applicant’s assertions in his Protection visa application. In his application form, the applicant stated:
I will most definitely be tortured and killed by the grypser gang. They are merciless and methodical and ruthless…They see the fact that I was protected by them in prison in return for money, money they see themselves being cheated out of when I ultimately left for [Country 1]. Specifically, I made promises about turning over the files to them in place of money I did not have at the time. They feel they have been embarrassed and will not forget.
The Tribunal has formed the view that it is this evidence that crystalises the most persuasive aspect of the applicant’s claims. The Tribunal considers it plausible and accepts that the applicant had sought protection from the grypsers when he was in prison. The Tribunal also considers it plausible and accepts that he was unable to pay for the protection, but in order to secure it, he invented a story with a promise of repayment and further gains. The Tribunal is of the view that the applicant had significantly exaggerated the nature of the files in his possession and their contents as a bargaining chip, convincing gang members and other prisoners that the documents were of considerable value. When subsequently the applicant failed to deliver these files or make repayment, he was subjected to repeated threats and physical harm. The Tribunal is of the view that the supporting documents submitted by the applicant in relation to the serious injuries he had suffered in the past were likely sustained in the course of his association with criminal elements in Poland, either in prison or outside, due to his failure to make good on his promises.
Both the delegate and the first Tribunal considered it implausible that the applicant would have resisted handing over the documents, considering the level of harm he was subjected to as a result of being in possession of the documents. However, in the present Tribunal’s view, there is some plausibility to the applicant’s explanation, at least in relation to the criminal gangs, that he feared being killed once he handed over the documents. Not because of the applicant’s assertions in relation to the significance of the documents, which the Tribunal has rejected, but because, as the Tribunal has found, the documents are of no real value. By not disclosing the location of the files, the applicant was able to prolong his ruse and buy time as those seeking the files continued to latch on to the illusory promises of a reward. Against this background, the Tribunal is prepared to accept that the applicant’s protracted deception culminated in members of the gang breaking into his apartment in Warsaw, subjecting him to serious physical harm. The Tribunal accepts his evidence that the only way for him to ‘buy some time’ was to sign over his apartment, which was registered under his brother’s name, to the gang and leave the country. The Tribunal considers it plausible that this final act of deception infuriated the gang members, who have put a bounty on his head and have threatened his son, forcing him to live an itinerant life between Poland and [Country 4].
As noted above, the Polish Consulate General in Sydney has confirmed that the applicant is being investigated by Polish prosecutors in connection with crimes allegedly committed under Article 55 of the Counteracting Drug Addiction Act of 29 July 2005. Article 55 of the Act prohibits the ‘import, export, transport, intra-Community acquisition or intra-Community supply of narcotic drugs, psychotropic substances or poppy straw.’ The Tribunal also accepts [Mr D]’s evidence that, as a repeat drug offender in Poland, the applicant is liable for a lengthy prison sentence should he be convicted again in Poland for the offences that he was convicted of in Australia.
On the basis of this evidence, the Tribunal accepts that Poland has requested the applicant’s extradition from Australia. The Tribunal finds that there is a real chance that if the applicant were to be removed from Australia he will be arrested and detained upon his arrival in Poland awaiting the criminal justice processes and procedures related to the investigation. There is no persuasive evidence before the Tribunal to suggest that in these circumstances as a repeat serious offender he will be successful in obtaining bail. The Tribunal finds that even if the applicant were to eventually escape conviction, he is likely to remain incarcerated until the conclusion of the proceedings against him. Consequently, the Tribunal finds that there is a real chance that the applicant will be subjected to serious harm in prison, including threats to his life or liberty, significant physical harassment and/or significant physical ill‑treatment at the hands of the grypsers, other criminal groups. However, the evidence before the Tribunal clearly suggests that in harming the applicant, the grypsers and their criminal associates are essentially and significantly motivated by personal reasons, namely recovering a debt they believe is owed to them by the applicant and to punish him for deceiving or defrauding them in the past. The Tribunal, therefore, is not persuaded that the harm faced by the applicant is for any of the reasons listed in s 5J(1)(a) of the Act. There is no real chance that the applicant will face serious harm for the reason of his race, religion, nationality, membership of a particular social group or political opinion. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution. He is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
For the reasons already oulined, the Tribunal finds that there is a real risk that if the applicant were to be removed to Poland he will be arrested and incarcerated upon his arrival. The Tribunal finds that it has substantial grounds for believing that there is a real risk that the applicant will suffer harm in prison involving the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act. The Tribunal is further satisfied that it has substantial grounds for believing that there is a real risk that he will also suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Poland, there is a real risk that he will suffer significant harm.

100. The Tribunal finds, for the purposes of s 36(2B), the applicant could not obtain from an authority in Poland protection such that there would not be a real risk that he will suffer significant harm. As already noted, in view of the fact that the applicant is subject to extradition proceedings in relation to the alleged commission of serious criminal offences, his removal will likely result in his incarceration upon arrival in Poland. Therefore, it would not be possible, let alone reasonable, for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. Finally, the Tribunal is satisfied that the significant harm the applicant faces is one faced by him personally.
101. The Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Poland, there is a real risk that he will suffer significant harm.

Notwithstanding the above finding, s 36(2C) provides that an applicant is taken not to satisfy the criterion in s 36(2)(aa) where the Minister has serious reasons for considering that they have committed a war crime, crime against peace, crime against humanity or an act contrary to the purposes and principle of the United Nations. A person will also be taken not to satisfy s 36(2)(aa) if the Minister considers, on reasonable grounds, that they are a danger to Australia’s security or the Australian community (having been convicted by final judgment of a particularly serious crime). However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 36(2C) issues: ss 411(c), (d).
The Tribunal notes that the material before it may give rise to issues relating to s 36(2C) of the Act. As the Tribunal has no power to consider s 36(2C) issues, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa by s 36(2C).
decision

104. The Tribunal remits the matter for reconsideration and directs that 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 the applicant will suffer significant harm.
Shahyar Roushan
Senior 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.
…

[2022] AATA 5036

10 November 2022

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