2109281 (Refugee)

This matter concerned an application for a Protection visa by an individual from Poland. The applicant claimed to fear harm from former communist Party leaders, members of the Solidarity Party, members of the current government, and various criminal groups. These fears were allegedly linked to his theft of sensitive intelligence files during his military service, the subsequent sale of some of these documents, and the death of his father, who had been a high-ranking officer in the Polish People's Republic's security forces. The applicant also claimed to have suffered serious injuries and threats from criminal associates and authorities seeking the stolen files. The delegate and the first Tribunal had rejected these claims, finding the applicant's evidence lacked credibility and that he would not face a real risk of significant harm if returned to Poland. The applicant sought review of these decisions.

The court was required to determine whether the applicant met the criteria for a Protection visa, specifically considering his claims of past persecution and the risk of future harm if returned to Poland. This involved assessing the credibility of his account regarding the theft and sale of sensitive intelligence files, the alleged involvement of his father's past role in the communist regime, and the subsequent threats and harm he claimed to have suffered from various groups and authorities. The court also needed to consider whether the applicant qualified for complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth), which requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm.

The Tribunal, constituted by Shahyar Roushan, reconsidered the applicant's claims and evidence. While acknowledging the applicant's history of criminal activity and incarceration, the Tribunal reached a different view from the delegate and the first Tribunal regarding the theft of the sensitive files. The Tribunal found that the applicant's claim about stealing two boxes of sensitive documents from the communist era was credible, supported by country information indicating that such documents often disappeared and ended up in private hands after 1989. However, the Tribunal also formed the view that certain key aspects of the applicant's claims were manufactured, embellished, far-fetched, and informed by conspiracy theories, possibly stemming from his criminal associations and periods of incarceration. Despite these credibility concerns, the Tribunal ultimately remitted the decision for reconsideration, indicating that the s 36(2C) issues, which relate to the Tribunal's power to determine certain matters, and complementary protection needed further assessment.