2203985 (Refugee)

2203985 (Refugee) [2022] AATA 3090 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sam Issa
CASE NUMBER:  2203985
COUNTRY OF REFERENCE:                   New Zealand
DEPUTY PRESIDENT:  Antoinette Younes
DATE:2 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2022 at 3:55pm
CATCHWORDS
REFUGEE – protection Visa– New Zealand – religion – Christian –applicant has a substantial criminal history – involved in organisations in the underworld – delay in lodging the application for a protection visa – applicant has never been involved in any activities relating to the Mongrel Mob – fabricated claims – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration v Viane [2021] HCA 41
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of New Zealand, applied for the visa on 10 February 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined in s 5H of the Act.
The applicant appeared before the Tribunal on 18 May 2022, 13 July 2022 and 26 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother who is incarcerated in New Zealand.
The applicant was represented in relation to the review by Mr Sam Issa.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as defined in ss 36(2)(a) and 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided the Tribunal with a copy of the delegate’s decision record, which indicates that:
(a)The applicant visited Australia on two occasions, in 1988 and 1994. From April 1995 until December 2008, the applicant was in Australia on six occasions as the holder of a Special Category (Temporary) (TY – 444) visa.
(b)On 22 May 2013, the Department commenced cancellation of the applicant’s TY-444 visa under s 501CA(4) of the Act, and on 3 February 2017, the visa was cancelled under s 501 of the Act.
(c)The applicant lodged an application for review with the AAT seeking revocation of the s 501 cancellation decision. The AAT affirmed the decision to cancel. Judicial review upheld the Tribunal’s decision.
(d)On 20 February 2021, the applicant was released from criminal detention but was detained in immigration detention pursuant to s 189 of the Act.
The applicant’s protection claims
Written statement
On 10 February 2022, the applicant lodged the application for the permanent Protection (XA 866) visa, which was refused on 17 March 2022. The refusal is the subject of this review.
The applicant provided a written statement, in which he made the following claims:
·He is [age] years old and he came to Australia to live in 2007. During his time in Australia, he has studied and in 2007, he commenced an [apprenticeship], which he completed in 2012. He won an award for his apprenticeship.
·He is very involved with his family and they are in his life. His aunt [took] him in and raised him in Australia. He plays sports and is very involved with [his] community in Brisbane, including fundraising and organising social events.
·He has lived a “colourful life” and has had a “chequered past”. He has made mistakes and his past actions have caught up with him. He has been involved in activities and organisations in the underworld. He has made enemies with the Mongrel Mob. His life and that of his family are in danger.
·The Mongrel Mob is sizeable and has personnel and resources that could endanger him in New Zealand. He was receiving threats whilst he was in prison in 2020. [Ms A] at [a] Correctional Centre intercepted correspondence addressed to him. The correspondence indicated that on arrival in New Zealand, he would be “pursued and taken care of”. On receipt of the threatening letter, [Ms A] notified the New Zealand authorities of the imminent threat to his life.
·The New Zealand authorities have incarcerated his brother in Wellington. His brother was hospitalised for two and a half weeks in relation to an attack in prison for being the applicant’s sibling. As a result, the New Zealand authorities released his brother into the care and custody of his parents. His parents run many churches throughout New Zealand and the Pacific, as part of the global Christian network. His deportation to New Zealand would have an adverse impact on his parents’ activities.
Statutory Declaration
In support of the application for a protection visa, the applicant provided a Statutory Declaration, in which he stated:
·He is claiming persecution on the grounds of religion and membership a of a particular social group. He relies on the complementary protection provisions in relation to the assessment of his claims.
·He was born on [date], in Wellington, New Zealand. He is a New Zealand national and he does not have any other nationality or the right to enter or reside in any other country. He initially arrived in Australia in 2007 and he is currently in a relationship with an Australian citizen. He has a substantial criminal history and his Subclass 444 Special Category (Temporary) visa has been cancelled pursuant to s 501 of the Act. Both of his parents and a brother continue to reside in New Zealand. He has several close relatives in Australia.
·In light of his imminent deportation, he has no other choice but to apply for a protection visa as there are prevailing threats to his safety. Since his incarceration, he has received numerous threats from criminal elements in New Zealand to cause him serious physical harm in case of his return to New Zealand.
·His past association with the criminal elements as well as his decision to dissociate from all forms of criminality have made him a distinct target for revenge. His decision to dissociate from the criminal elements is based on his Christian convictions and determination to amend his past behaviour. The disassociation and determination to amend his past behaviour have “infuriated” those criminal elements who now seek to avenge what they perceive as his ultimate betrayal.
·His family is deeply religious and as part of the Global Christian Congress, ran many Christian churches in New Zealand and the Pacific region. He has in the past shamed and dishonoured his family as well as turning his back on God. He has learned from the past and is determined to turn his life around and live a virtuous Christian life.
·The criminal elements are awaiting to avenge his perceived disloyalty immediately after his arrival in New Zealand. Since his imprisonment in 2020, he has received threats to his life and the lives of his family. The Australian prison authorities have intercepted a communication which details the imminent threats to his safety on his return to New Zealand. Those threats have persisted.
·His brother, who is currently serving a prison sentence in Wellington, was subjected to an act of reprisal and sustained serious physical injuries. In recognition of the danger to his brother’s personal safety in prison, he was released by the New Zealand authorities and placed in the care of his parents.
·He recognises that New Zealand has similar law enforcement and laws to Australia. He, however, fears that the New Zealand authorities would not be able to protect him from the criminal gangs. The incident involving his brother’s assault in prison demonstrates the extent of the criminal gangs’ capacity to harm their victims.
·It is well established that New Zealand is subject to widespread organised crime and that those criminal elements are potent in their actions of reprisal. Relocation to another part of New Zealand will not be an effective deterrent as those criminal elements have vast networks which operate throughout New Zealand. His parents continue to warn him against returning to New Zealand as the threat to his personal safety is real and likely to be carried out shortly after his arrival in New Zealand.
·The Australian authorities are conscious of the threats that have been made against him and his personal safety would be severely compromised in New Zealand.
The applicant relied on the following documents:
·[Medical] records including patient medical history for the applicant’s brother [Mr B], dated 15 February 2020, referring, among other things, to no “pending investigations, no regular manse, no allergies, rarely attends the Dr, last seen in June 2019 for a knee injury”. The records noted that the brother’s past medical history included a “Sprain of medical collateral ligament of knee (disorder)” on 18 June 2019.
·An undated statement of [Mr B] referring, among other things, to his incarceration in 2020. [Mr B] stated that during his incarceration, he was approached by a “group of boys” who were part of an established organisation. They asked him probing questions, including questions about the applicant. They told him that they had serious issues with the applicant and that “there is a standing contract on my brother’s head… They said they were going to get him and that he was finished. A couple of hours later the boys approached me initially they attacked me”. He was in hospital for five days from severe bruising and a broken jaw from getting his head stomped on by the mob. They beat him unconscious and only stopped because the officers intervened. He was released as a result of the incident and was ordered to serve his sentence of 14 months on house arrest. All of this happened because of the applicant, who wanted to put his previous life behind him and return to the Church. [Mr B] stated that he suffers from “bad anxiety and paranoia” and that a letter was intercepted by an officer where the applicant was imprisoned in Australia and its author knew who their parents were and their father’s work. It was made clear that the applicant would be found no matter where he goes.
·An article titled “Four facts about religion in New Zealand”, dated 21 March 2019, published by the Pew Research Centre. An article titled “Faith-based global human development”, Congress WBN.
·A [newspaper] article relating to the shooting incident of [April 2022].
Material provided to the Tribunal
As well as the delegate’s decision record, the applicant provided to the Tribunal a Statutory Declaration sworn on 2 May 2022, in which the applicant made the following claims:
·He continues to rely on the claims that he has made previously. He also seeks to bring to the Tribunal’s attention further developments. His brother [Mr B], who is currently serving a prison sentence in Wellington, was subjected to an act of reprisal against the applicant, and sustained serious physical injuries. In recognition of the danger his brother faced in prison, he was released by the New Zealand authorities and placed in their parents’ care.
·Despite those protective measures, there have been two further attempts to take his brother’s life, including a recent incident which took place [in] April 2022. The shooting incident took place in [a location] where his brother was targeted by criminal elements who are relentless in seeking retribution against the applicant. The incident has been widely reported in the New Zealand media, which confirmed that a man has been charged after three people were shot in a gang-related incident but police are still seeking the main suspect believed to have pulled the trigger (a copy of the media report is attached). He believes that his brother has been arrested in relation to the recent [shooting] incident.
·The primary decision-maker makes adverse credibility findings. The latest incident should be regarded as persuasive evidence that the criminal elements operating in New Zealand continue to target members of his family and are likely to target him in the case of deportation to New Zealand.
·He acknowledges that such matters can be reported to the New Zealand authorities who operate a criminal justice system which meets international standards. The latest incident, however, reinforces his claims that although the New Zealand authorities continue to take measures to reduce criminal organisation or gang activities, those measures have not been effective in preventing attacks against members of his family and will not be effective in preventing attacks against him in the case of his return to New Zealand.
·The primary decision-maker has relied on country information, some of which is dated. In 2020, the Australian prison authorities intercepted a communication, which details the imminent threats to his safety on arrival in New Zealand. He acknowledges that it is up to him to present his case and supporting evidence, and he authorises the Tribunal to make relevant enquiries with the Australian prison authorities in relation to the record of threats. The primary decision-maker did not afford him the opportunity of an interview where his claims could be fully ventilated, nor did the decision-maker make any relevant enquiries with the Australian prison authorities with respect to his claims that there are records of intercepted threats.
·The primary decision-maker assessed his claims in a “capricious manner, not only denying me the opportunity of an interview and but also in failing in her duty to make relevant and reasonable enquiries in which my central claims could have been readily verified”.
Hearing on 18 May 2022
The applicant gave evidence that he came to Australia in 2007 when he was about [age] years old. He is now [age] years old. He stated that his parents and only brother are currently living in New Zealand. He stated that he has an auntie in Australia with whom he lived from the time of his arrival until 2012. Subsequently, he lived in Brisbane on his own.
The applicant gave evidence that since 2013, he has been imprisoned in Australia for various offences for a total period of approximately eight years. The offences related to burglary, break and enter, and causing grievous bodily harm. He was released in February 2021 and was subsequently detained in immigration detention. He confirmed that in New Zealand he had no convictions.
The Tribunal asked the applicant about his relationship and he stated that he has been in a relationship that commenced prior to 2016. He stated that relationship has been on and off, with a woman aged [age] years, and although there have been difficulties, they remain in the relationship.
The Tribunal asked the applicant about his claim that he has lived a “colourful life” and that he has had a chequered past. In relation to being involved in organisations in the underworld, he stated that he was part of a group but is no longer associating with that group. He stated that “once you’re in you’re in” and that the group has not taken it well. He stated that he wanted to take a different course in his life. The Tribunal asked the applicant to give specific details about his activities with the underworld organisations. He stated that in Australia he was involved in activities of the group such as “extortion...just that’s it…” The Tribunal asked him about the group. He initially stated that he was not “sure” but later said it was “It seems to be the Mongrel Mob”. The Tribunal asked the applicant if the Mongrel Mob operated in Australia and he stated that he was not sure of their current movements as he has been out of the group for many years. He stated that he encountered other individuals who wanted to be associated with “these people”. He stated that in prison he had multiple altercations and was placed in isolation for his safety as well as the safety of other inmates. The Tribunal noted that the applicant’s responses lacked detail. The applicant said that his brother is the “only piece of evidence” that would corroborate his claims. The Tribunal referred to the brother’s statement and explained that it would consider further the weight to be placed on that document.

The Tribunal asked the applicant for further details about his involvement with the group in Australia. He stated that he started getting involved in the group when he was about [age] years old in Australia. The Tribunal asked him how he started his involvement with the group and he stated that he met people through football, parties and functions. He stated that he was involved in a “mix of things… collected money from certain individuals… essentially a bagman for the organisation… doing odds and ends that’s how I got in the mix”. The Tribunal noted the vagueness of his responses and asked him for further details. He explained that he collected money from people. He sold drugs (not large amounts) and was involved in security to make sure that “things went along smoothly… was security at the club house…started at the bottom…picked up money”. The Tribunal asked him if he was ever charged with any of those offences and he stated that he was not. The Tribunal gave the applicant a warning in relation to self-incrimination. The representative sought a short adjournment which was granted to enable the representative to give the applicant legal advice in relation to the privilege against self-incrimination. On return, the applicant did not raise any issues.
The Tribunal asked the applicant when he discontinued his involvement with the group and he stated that there was an incident that he did not want to talk about with the Tribunal. He said they were marched out by other rivals because he was not loyal and faithful. He said once the group heard about his deportation his parents started getting knocks on the door. The Tribunal asked him again when he discontinued his involvement with the group and he said “I can’t give you a date about that…I can’t…before I was [age] put it that way…” He said he could not provide an estimate because “I did not document it”. The Tribunal noted that the event would have been significant. He said, “you can assume what you like…I would be guessing”. He said when he left it was static and things went quiet. He said he lived a peaceful life but it was not until deportation that they started “hitting my family” and telling him that he would “be done” on his return.
The applicant stated that he stayed away from the group and moved to Sydney, getting on with his life. He said they know everything about him in New Zealand and the threats started. He said a correctional officer during his incarceration knew about the threats. He stated that from 2016 until 2020, he was receiving threats and an intelligence officer intercepted them and spoke to him. The Tribunal asked if there is a report about those threats and he stated that there was and he would make an effort to provide the report to the Tribunal. The Tribunal asked him why he has not attempted to obtain the report, and he said, “I cannot answer that…it’s very miss of me”. He said he would provide reports and he would start immediately to chase it all up. The Tribunal gave the applicant three weeks to provide the reports or any other documents in support.
The Tribunal asked the applicant if anything had happened to his parents and he stated apart from the door knocks, nothing physical happened. The Tribunal asked him why the group would be after him now given that they did not cause him or his family any harm. He replied, “I don’t feel comfortable answering the question…because I will incriminate myself”. The Tribunal indicated to the applicant that it would appear that nothing happened since he disconnected himself from the group.
The Tribunal asked the applicant about his claim of fear of harm based on religion. He stated that he has lived a sinful life which he wanted to change. He said he wants to live a more positive life. He said he cannot perform certain tasks that others would like him to do and this caused problems. The Tribunal asked him to which denomination of Christianity he belongs. He questioned the Tribunal but later said that he belongs to “Christianity…AOG (Assembly of God)…Evangelical I don’t know…I believe in Jesus…baby Jesus…Christianity do you want me to spell out to you…CHRISTIANITY…Sorry if I’m getting short”.
The Tribunal asked the applicant about his brother in New Zealand and the applicant confirmed that his brother is currently on remand. He stated that his brother has been charged with offences relating to firearm and shooting incidents during which the brother was the target. He said his brother retaliated in self-defence.
The Tribunal noted the delay in lodging the application for a protection visa and asked the applicant about the delay, given the claim that he was being threatened. He said they know everything about him. He said he had to do something because his brother was being attacked because of him. He stated that he had no reason to seek protection until the threats and his brother’s attack in jail because of him. He stated that when the threats began to affect him, his brother and family, he felt the pending danger. The Tribunal indicated to the applicant that delay could raise doubts about the claims. He stated he was worried and felt it was “well and good” when it was just him but when actions started to affect others, he perceived the “elevated risk…it was unprecedented”. The Tribunal indicated that the delay could suggest that he applied for a protection visa as a last resort to remain in Australia. He said he did not want any of that “garbage” to be brought to light but due to the elevated risk, he had to apply.
The Tribunal asked the applicant about the cancellation of his Subclass 444 visa and whether, in response to the Notice of Intention to Consider Cancellation (NOICC) as well as submissions to the Tribunal relating to the s 501 cancellation review, he raised any protection issues. The applicant confirmed that he did not. He said back then the threats were only verbal but that after his brother was hospitalised, the threats were “fair dinkum…”. He stated that although initially he had a lawyer acting for him in the cancellation process, he could no longer afford the lawyer. He also indicated that once his brother was hospitalised, he realised that the threats were real but initially considered them to be a way of life.
The Tribunal discussed with the applicant that country information about New Zealand would suggest that New Zealand is a country that would offer adequate protection that accords with international standards and that there is no obligation on any state to provide unconditional protection as that is not possible. The applicant disagreed that the authorities are able to provide adequate protection. Moreover, the Tribunal referred to reports about the Mongrel group, some of which say that former members can be harmed but others do not report any harm. He said he has “hardcore evidence” such as his brother’s shooting.
In oral submissions to the Tribunal, the applicant’s representative indicated that clearly the applicant and his brother are subject to targeted attacks. The representative referred to the s 501 cancellation and the fact that the applicant did not raise protection claims. The representative argued that it is important to consider the fact that the applicant was not legally represented and hence the applicant might not have been aware that he could make those claims. The representative submitted that without the brother’s oral evidence and police report, the applicant’s case is adversely impacted. The Tribunal agreed and gave the applicant another three weeks to provide evidence in support of his claims and indicated that it would consider taking evidence from his brother who is incarcerated in New Zealand. The representative argued that the Tribunal needs to consider specifically targeted harm as opposed to generalised violence.
Material received subsequent to the hearing
Subsequent to the hearing of 18 May 2022, the Tribunal received the following material:
·A New Zealand police report relating to the applicant’s brother, [Mr B], including Charging Documents concerning an offence [in] April 2022 of jointly offending with four others “in possession of a [firearm]”.
·A New Zealand police Summary of Facts concerning the five defendants, including the applicant’s brother, relating to the charges of “[details deleted]”. Among other things, the Summary of Facts referred to the five defendants who are claimed to be associates of the organised crime group King Cobra (KC) and that prior to the offending, “the five defendants had knowledge of the serious assault upon three of their close associates that happened several hours before the offending for which they are now charged… Mr [B] stated he was the driver of the vehicle involved in the… Shooting. He stated that five shots were [fired]. He denied any knowledge of the shot gun being in the vehicle he drove…”.
·The Grounds for Opposing Bail in relation to the applicant’s brother, noting, among other things, failing to appear in Court previously, warrants to arrest issued on 27 separate occasions, multiple previous convictions including injuring with intent, male assaulting female, common assault, threat to kill, threatening language, possession of an offensive weapon, fighting in public, having associates who are gang-related with tensions between the KC and Mongrel Mob due to “these incidents”, concerns of retribution and retaliation, personal safety of the applicant’s brother, the commission of 16 offences whilst on bail, strength of evidence and probability of conviction, and seriousness of punishment likely to be imposed.
·Medical records dated [February] 2020 concerning the applicant’s brother, previously provided to the Department.
·A copy of AAT decision in matter [number], dated 13 December 2017 relating to the cancellation of the applicant’s Subclass 444 visa under s 501(3A) of the Act.
·Submissions of the representative dated 12 June 2022. In essence, the representative focused on the definition of well-founded fear of persecution and acceptance that it is “almost inevitable that the Tribunal in the present case would, consistently with Viane [[1]] conclude that New Zealand has an effective police force and justice system which, as in Australia operates to protect persons within the country from harm contrary to law. However, it is submitted that a finding at this level of generality is not of itself enough to determine every case concerning effective protection in New Zealand. In this regard, the Tribunal must reason without transgressing the limits imposed by the law of legal unreasonableness or irrationality… The Tribunal must engage in proper, genuine and realistic consideration of the applicant’s case… it is necessary for the Tribunal to go beyond the general proposition that New Zealand is a country governed by the rule of law with a high functioning justice system…It will not be necessarily sufficient for the decision-maker to identify a general level of effectiveness of protection by the state concerned. Rather, the decision-maker will need to be satisfied that in the precise context of harm from third parties faced by the review applicant there would be effective protection by the state. An understanding of the nature and strength of the response by state to the specific threat at issue is needed…”. It was further contended that the Tribunal must consider matters such as the intercept of threats by the Australian authorities, the brother being a target for a violent reprisal in New Zealand by criminal elements, the specific threat that the applicant faces on his return to New Zealand from criminal elements, and country information supporting the applicant’s contention that individuals who choose to leave a gang or avoid further involvement can be subject to reprisal. It was argued that the Tribunal needs to go beyond the general proposition that New Zealand is a country governed by the rule of law with a high functioning justice system as well as the “inadequate nature and strength of the New Zealand’s authorities response to the specific threats faced by the review applicant’s brother in New Zealand.”
[1] Minister for Immigration v Viane [2021] HCA 41, 395 ALR 403
Hearing on 13 July 2022
The Tribunal discussed with the applicant independent country information in relation to the Mongrel Mob and indicated that it would appear that there is conflicting information regarding the situation in relation to former gang members who leave. The Tribunal pointed out that the Tribunal’s information is similar to that noted in the delegate’s decision record in that various reports point out that former members who decide to leave the mob can face reprisal but other reports suggest that they are not subjected to mistreatment by the mob in the case of them leaving or wanting to leave. The Tribunal suggested to the applicant that this information could raise doubts about his claims. The Tribunal also discussed with the applicant country information about New Zealand and its democratic system of government, the independence of the judiciary, and the police service. The applicant referred to the claimed incident relating to his brother in prison as evidence of inadequate state protection. He said, if sent back, he would be subjected to retribution, including significant harm. The representative made submissions that there is the issue of the adequacy of police resourcing in New Zealand to deal with gang related violence.
The Tribunal clarified with the applicant his claims relating to Christianity. The applicant confirmed that he is not claiming to have suffered or that he feared suffering any harm on the basis of his Christian faith. He clarified the claim by noting that his Christian faith meant that he wanted to lead a different lifestyle. He stated that he intends to have a family and to get onto a positive pathway. The Tribunal asked the applicant if any member of his family has suffered harm as a result of their Christian faith and the applicant confirmed that no one has suffered such related harm. The Tribunal asked the applicant if any member of the family in New Zealand has suffered any harm, apart from the door knocks, and the applicant confirmed that they have not.
The Tribunal discussed with the applicant the documents provided subsequent to the previous hearing. The Tribunal suggested that the reports indicate that his brother has been involved in the organised crime group, KC, and that the incident of [April] 2022 suggests, among other things, that it relates to tensions between the two groups, namely the KC and the Mongrel Mob. The Tribunal also indicated to the applicant that the material before it, such as the grounds for opposing bail document, indicates that his brother has a serious and lengthy criminal history, including involvement in gang-related activities. The applicant said one needs to consider the background. The Tribunal suggested that any harm that his brother might have suffered could be related to his activities rather than the claimed disconnection from the group by the applicant. The applicant said perhaps recent events can be viewed in this manner but not what happened previously. He referred to his brother being attacked in prison because of him. He said, “I know how it reads on paper…you can frame it, turn it and paint it…he was hospitalised”. He said the incident occurred two years before his brother’s association with the KC. The applicant said his brother was defending himself. The Tribunal discussed AAT decision number [relating] to the cancellation of the applicant’s Subclass 444 visa under s 501(3A) referring to his extensive criminal history and the lack of mention of any protection claims. The Tribunal suggested that not raising claims could support a finding that the delay in lodging the application visa raises doubts about his claims. The applicant stated that they know where his parents live and he did not want to “give oxygen to the fire”. He said he wanted things to be kept quiet and left “clean”. The Tribunal suggested that the material indicates that he has applied for a protection visa as a last resort.
The Tribunal discussed with the applicant the fact that despite promising to do so, the applicant has not provided the claimed report(s) concerning the incident that the Australian prison authorities, [had] intercepted threatening correspondence to the applicant. The representative interjected and said the applicant has made unsuccessful attempts to obtain the material but was told that a subpoena would be required. The applicant stated that he has made attempts without success to obtain the material. He stated that he has been advised that [Ms A] is no longer the intelligence officer and that a subpoena is required, which he understood only a Court could achieve. The Tribunal pointed out to the applicant that he is represented by a legal practitioner who is familiar with the Tribunal’s procedures, which include the ability to issue a summons. The Tribunal indicated to the applicant that no such request has been made. The applicant advised the Tribunal that the issue can be left as is.
The Tribunal noted the applicant’s advice to the Department that he would provide that material, which he never did, and that the Tribunal would need to further consider what inferences to be drawn from the lack of provision of the report(s). At the end of the hearing, however, the applicant revisited this issue and was given further time to make submissions in this regard.
In relation to the medical records dated 15 February 2020 concerning his brother, the Tribunal indicated that although it is plausible that his brother had those injuries, it does not necessarily mean that they occurred as has been claimed by the applicant.
This hearing was listed primarily to take evidence from the applicant’s brother. The Tribunal made attempts in the course of the hearing to take evidence from the applicant’s brother but was told that the facilities were not available after 4pm, however, this had not been communicated previously.
The applicant confirmed, and was supported by the representative who made submissions that it is necessary for the Tribunal to take evidence from the applicant’s brother as this is directly relevant to the applicant’s claims.
In relation to the report(s) of the intercepted threats in Australia, the Tribunal gave the applicant another opportunity to make further submissions about obtaining the material.
Hearing on 26 July 2022
Evidence of [Mr B], the applicant’s brother
The witness gave evidence about an incident that occurred in February 2020 when he was approached whilst incarcerated and assaulted. The Tribunal asked him when the incident occurred and he stated it was in early February, “… 13 February…I don’t know…March…” In essence, the witness stated that he could not recall the exact date but that it occurred during his incarceration in February/March 2020. The Tribunal asked the witness how many of them were involved in the incident and he stated that there were about six or seven men but he was not certain. He stated that they cornered him, asked him about his brother, told him that they were after his brother, and assaulted him causing a broken jaw. He said the incident was reported to the prison authorities who handled the matter internally. He said he was separated in order to avoid any further incident.
The Tribunal discussed with the witness the charges against him and he stated that the matter is still pending. The Tribunal gave the witness warning about the privilege against self-incrimination.
The Tribunal referred to the information that has been provided and indicated that it appears that he has been a member of a gang, the KC, and that there have been tensions between that group and the Mongrel Mob. The witness stated that he only joined the KC in February this year and was never involved with the group previously. He stated that he joined the KC because of common interests and because he was sick of fighting the Mongrel Mob. The Tribunal asked the witness about the applicant’s involvement with the Mongrel Mob and he stated that although he does not know the specific details of the applicant’s involvement, the applicant was a “money maker” and that the mob were after his brother. He said they really want his brother. The Tribunal asked the witness if his parents have suffered any harm and he stated that apart from door knocks and people asking for him and his brother, their parents have not experienced physical harm.

The Tribunal referred to the witness’s Grounds for Opposing Bail document provided by the applicant to the Tribunal. The Tribunal indicated that the document shows that the witness has a long history of criminal activities and that the attack in prison in 2020 could have been related to his past criminal activities. The witness stated that the attack was a targeted attack on him because of his brother. He stated that in relation to his criminal activities, those were committed when he was essentially intoxicated. He said he is scared for his life and he wants his brother to be safe.
The Tribunal put to the applicant that the Tribunal would consider further how much weight to place on his brother’s evidence. Although the Tribunal did not use the term “coached”, the applicant stated that his brother has not been “coached”. The Tribunal reiterated that it would consider further the weight to be placed on the brother’s evidence.
Independent country information
There are reports which provide conflicting information regarding the situation for former members of gangs, including the Mongrel Mob, who leave a gang or avoid further involvement in a gang in New Zealand. There are reports that individuals who choose to leave a gang or avoid further involvement fear being subject to repercussions from their gang as a result of that decision[2]; other reports indicate that they would not be subject to any mistreatment on account of that decision.[3] A February 2013 report referred to a person who left the Mongrel Mob in 1983 and moved to Australia because he believed that he could not remain in New Zealand if he wanted to leave the gang. The relevant section of the report read:
[2] 'I went from mob member to businessman', Hamilton-Irvine, G, Rotorua Daily Post, 9 February 2013, CX308596; 'New Zealand gangs: The Mongrel Mob and other urban outlaws', Kesby, R, British Broadcasting Corporation (BBC), 26 September 2012, CX300985
[3] Hard-Hard-Solid! Life Histories of Samoans in Bloods Youth Gangs in New Zealand', Faleolo, M M, Massey University, 2014, p.203, 20220304152130; 'Culture of gangs', Eleven, B, Stuff (New Zealand), 23 March 2013, CXC28129413910. See also 'Police Minister Poto Williams reveals latest rise in gang numbers, but says it's 'not something that's useful'', Satherley, D, Newshub, 24 July 2021, 20220304123121; 'Infamous gangster opens up on why he has 'notorious' tattooed across his face, his time in the feared Mighty Mongrel Mob - and the moment that made him decide to leave his life of crime behind', McPhee, S, Daily Mail (Australia), 3 April 2021, 20220304145221; 'Patched: The history of gangs in New Zealand', Gilbert, J, Auckland University Press, 2013, p,2
Rotorua-born Joe Kingi turned his life around from a Mongrel Mob member to a successful businessman. The Daily Post reporter Gary Hamilton-Irvine sat down with Joe to hear his incredible story.
'Sorry bro I have mahi [work] tomorrow."
With that Joe Kingi closed the door behind his Mongrel Mob mates and watched them drive off to a job - a drug deal which was to go terribly wrong.
Leading up to that point the Rotorua born 17-year-old had considered leaving the mob in Porirua but wasn't sure if it was the right decision.
"I was thinking which way to go - business life or criminal life?" he says.
On the one hand he'd grown up wanting to be like his cousins in the mob but on the other he was starting to earn some good money running his dad's weed spraying business.
Mixing the two lifestyles didn't seem so bad, he thought, at least until the news came in.
One man was dead and his mates were in prison after the drug deal had gone horribly wrong.
Joe arrived at Brisbane Airport on September 25, 1983 - a day he remembers well because it was the Australian rugby league grand final between Parramatta and Manly-Warringah [4].
[4] 'I went from mob member to businessman', Hamilton-Irvine, G, Rotorua Daily Post, 9 February 2013, CX308596
A British Broadcasting Corporation (BBC) article also provided information, which stated that gangs in New Zealand were “very difficult to leave” and that members have to undergo some form of “formal punishment” before they would be allowed to leave:
New Zealand's gangs rarely make it into the tourist guide books, and are easily avoided by mainstream Kiwis enjoying the kind of existence that keeps the country at the top of the world's lifestyle indexes. Many countries have gangs of one sort or another, but in New Zealand there is a whole subculture.
Gang membership isn't restricted to youngsters with a few years to misspend before growing out of bad behaviour - gangs here are a lifestyle, once joined very difficult to leave, and they hold entire communities in their grip for generations.
There are thought to be more than 40 different street gangs in New Zealand. One estimate from the police association puts the number of full members at 6,000 with a further 66,000 "associate members" - partners and other family members involved in gang behaviour. That's within a population of just four million.
The gangs came into existence in the 1950s and 60s when thousands left the vast rural areas for the cities looking for a better life, and many didn't find it.
Maoris and Pacific Islanders often struggled in the urban scene. Uprooted from their communities, short of cash, and sometimes dependent on alcohol or drugs, many teenagers found the kinship and protection they missed at home in the tattooed, leather-clad arms of the gangs.
Part of the initiation to be accepted as a full gang member traditionally involves committing a serious crime - which explains the high percentage of gangsters in jail. Around 40% of inmates at Springhill prison, south of Auckland, are in a gang. And integration manager Gerry Smith says getting out of a gang is very difficult.
"Some gangs you'll have to pay money to get out, or commit a crime," he says.
"Others you'll get a beating from a pack of other gang members. We're not just talking a slap on the face or a punch on the nose, it could involve stabbing - it's serious assault.
"You have to undergo some formal punishment before you'll be allowed to leave a gang”.[5]
[5] 'New Zealand gangs: The Mongrel Mob and other urban outlaws', Kesby, R, British Broadcasting Corporation (BBC), 26 September 2012, CX300985
There is information that refers to individuals leaving gangs in New Zealand without repercussions. A Doctor of Philosophy thesis on the involvement of Samoan youths in gangs in New Zealand refers to[6]:
There was no evidence where other gang members made it difficult for those wanting to the [sic] leave the gang. The only evidence of difficulty in leaving the gang was provided by those who described feelings such as loyalty and wanting to repay the gang for what it had done on their lives (protection, popularity, status, survival skills) versus leaving the gang. So I was a little surprised that gang members did not put pressure on those who wanted to leave and thus one of many positive contributions[7].
[6] 'Hard-Hard-Solid! Life Histories of Samoans in Bloods Youth Gangs in New Zealand', Faleolo, M M, Massey University, 2014, pp.197-203, 20220304152130
[7] 'Hard-Hard-Solid! Life Histories of Samoans in Bloods Youth Gangs in New Zealand', Faleolo, M M, Massey University, 2014, p.203, 20220304152130
A Stuff article indicates that persons who leave gangs were able to do so due to concerns that they would become a liability if they remained with the gang. The “Christchurch researcher” Jarrod Gilbert, who had “immersed himself in some of New Zealand's most feared gangs” and written a book based on his research, was quoted in the article as stating that:
People tend to think once you're in, you're in for life, and there is a lot of rhetoric like that from inside as well, but if you tire of the life and make the decision to leave, the gang will let you go because if your heart's not in it, you become a liability.[8]
[8] 'Culture of gangs', Eleven, B, Stuff (New Zealand), 23 March 2013, CXC28129413910
Further reports have been located which refer to individuals leaving gangs in New Zealand and which do not specifically refer to these individuals being subject to repercussions as a result. For example, a July 2021 Newshub article included the following information provided by Gilbert:
An expert in gangs, sociologist and author Jarrod Gilbert, told The AM Show in February the number of supposed gang members - as measured by the police's list - was likely "heavily inflated", citing the same reason as Williams.
It's incredibly easy to get on the [gang] list because the police identify someone wearing a patch and so their name goes onto this database. But if people leave the gangs - and so many people are - it's very, very hard for police on the street to identify when someone's left.[9]
[9] 'Police Minister Poto Williams reveals latest rise in gang numbers, but says it's 'not something that's useful'', Satherley, D, Newshub, 24 July 2021, 20220304123121
An April 2021 Daily Mail report also referred to a former Mongrel Mob member who had decided to leave the gang following the birth of his child:
An infamous gangster who has 'notorious' tattooed across his face and once beefed with 50 Cent has opened up on how he kicked a meth addiction and left his violent past behind.
Puk Kireka was one of the most recognisable members of New Zealand's Mighty Mongrel Mob - a gang with members of mostly Maori-descent, many of whom are convicted killers.
The Mongrels, who formed in Wellington and Hawkes Bay in the 1960s, have a tough code against outsiders, preferring to operate in the shadows. Many have prominent face tattoos that tell stories of their cultural past.
Kireka, who spent 10 years as a prominent member of The Mongrels, said the birth of his child made him leave the gang that once gave him meaning.
'I had to break the cycle. People came into my life and showed me what life was truly about,' Kireka told Robett Hollis.
The 33-year-old, who spent five of the 10 years he was a member in jail, said his upbringing was the motivator behind joining the Mongrels.
Kireka's father, brother, uncles and cousins were all members of the gang, and after losing his dad when he was just seven years old he searched for role models within the group.
'I didn't know how to associate with anyone outside of the gang. I only knew how to be a gang member and I was really good at it,' Kireka said.
Kireka said the birth of his third child as the moment where he could see life beyond the gang for the first time.
He admitted to being a bad father in the past, even taking his now 12-year-old boy to gang meetings and 'dressing him up like a little gangster' - a pattern he now has to reverse.
'He was starting to be attracted to that life so now I'm pulling him back slowly,' Kireka said of his son.
Kireka was convicted of assaulting his partner in 2019 and said the incident was 'the start of his change'.
The woman was knocked to the ground so hard she broke her nose. Kireka says he only 'pushed her' and pleaded guilty to the assault charge to 'move forward'.
'I was guilty of pushing her I'll stand up and say that,' Kireka says of the incident.
'That was hard because I was trying to change and that happened. I thought should I just stay naughty because I didn't get this backlash when I was still naughty.'
The 33-year-old, who now is studying at university and has his own online fitness coaching business, admits his tattoo has proved challenging in his post-gang life, stopping him from doing things as simple as going out for lunch.
Kireka says the tattoo is a tribute to friends within the Mongrels who have died, notably to suicide and drug addiction, and said he would wear it proudly because he wanted people to know he was a gangster.
'I tattooed my face to remember them, they're my brothers for life. I did not think about or care about what people would think. I wanted to wear this proud. There's no undercover,' Kireka said.
'I was in it for life. I was proud to walk around with this on my face and let everyone know it, this me, and I don't care what you think. That was the attitude I had.
'I didn’t think when I got this tattoo that I wouldn't be allowed to get into a lot of places. Now I can't even go to places to get lunch because of the tattoo.
'If I do go anywhere I've got to put makeup on if I wanna get in.'
Kireka says he now wants to dedicate his life to his family and continue to fight the inner demons that still haunt him[10].
[10] 'Infamous gangster opens up on why he has 'notorious' tattooed across his face, his time in the feared Mighty Mongrel Mob - and the moment that made him decide to leave his life of crime behind', McPhee, S, Daily Mail (Australia), 3 April 2021, 20220304145221
In his 2013 book Patched: The History of Gangs in New Zealand, Jarrod Gilbert also stated that “[w]hen an enemy threat is present, there is sharpness to the group; weaker members may leave the gang during times of conflict but those who remain experience increased commitment.”[11]
[11] 'Patched: The history of gangs in New Zealand', Gilbert, J, Auckland University Press, 2013, p,244, CIS25695
State protection by the New Zealand authorities to persons who have informed on gang activities
There is no information which makes specific reference to the level of state protection that is provided by the New Zealand authorities to persons who have informed on gang activities[12]. However, two reports from June 2018 have been located which refer to a witness in the trial of Karel Sroubek, a Czech national who had been tried on charges relating to a cannabis operation, being placed in New Zealand’s witness protection program along with his family after they had allegedly been threatened by Sroubek and two other men with connections to the Hells Angels[13].
[12] Searches were conducted using the CISNET database and the Google, Yahoo, Bing and DuckDuckGo internet search engines in relation to this question
[13] [Deleted].
Relevantly, an August 2017 article by the Auckland-based legal firm Criminal Lawyers, referred to a situation where the Crown prosecutor had made the decision to “let an alleged major drug supplier walk free rather than identify a police informer” because the police had considered the non-disclosure of the informant’s identity to be “fundamental”. The article read:
The drugs were allegedly shipped from Durban in furniture and trailed by police to a lock-up unit in Albany.
But police say there were six earlier drug importations using the same technique, making a total of about $18 million.
Two other men, South African Alexander Gavin Smith, 36, and Zimbabwean Robert Charles De Bruin, 51, still face charges in relation to those alleged importations.
At a High Court trial last month Justice Mark O’Regan granted permission to defence lawyers Rob Harrison, Roy Wade and Adam Couchman to question police witnesses on the name of their informer. The ruling related to a charge faced by Smith of importing the 36,000 tablets and a further charge he faced with Wilcocks of possessing the drugs for supply.
But rather than allow the informant to be exposed, the Crown offered no evidence in relation to those two charges. The whole trial was aborted and the judge directed the jury to return not guilty verdicts in relation to those two counts.
Unlike acquittals by a jury, “directed” not guilty verdicts can be overturned by the Court of Appeal and the charges laid again.
The issue of whether police have to reveal their sources in court was to have been decided by a bench of five Court of Appeal judges in October.
But the Crown has now decided to drop its appeal in relation to the directed not guilty verdicts.
Yesterday Crown Law in Wellington declined to comment on the reason for not pursuing the appeal.
De Bruin and Smith face trial in November on the other charges which include importing Ecstasy and money laundering.
Wilcocks was returned to South Africa at the end of last month’s trial.
The directed not guilty verdict stands in relation to him and he will not be brought back to New Zealand, as he faces no other charges.
Crown prosecutor Ross Burns said that there was an important issue at stake.
“The police consider the non-disclosure of an informant’s identity so fundamental that even in a case such as this, where there have been orders to disclose it, they would prefer to see the charges dismissed rather than breach their obligations of confidentiality,” Mr Burns said.
Detective Stephen Peat said that if the police ever named an informant, their chances of getting vital intelligence from informers in future would be “negligible”.
Although he was extremely disappointed Wilcocks was now free, on the bright side Mr Peat said that he had at least spent 15 or 16 months in custody awaiting trial[14].
[14] 'New Zealand: Drug Accused Freed To Protect Informer', Couchman, A, Criminal Lawyers, 18 August 2017, 20220307121630
Reports have been located which provide general information regarding the New Zealand Police and that agency’s effectiveness. In its 2021 Country Security Report for New Zealand, published on 23 September 2021, the US Department of State’s Overseas Security Advisory Council (OSAC) provided the following information regarding the New Zealand Police:
The New Zealand Police is the lead agency responsible for reducing crime and enhancing community safety. It operates from more than 370 community-based police stations, with a staff of 12,000 personnel who respond to more than 850,000 emergency calls each year. The police operate by land, sea, and air. The New Zealand Police trains to a Western standard and is actively involved in crime prevention and response. The force has specialized units to deal with armed offenders and hostage situations.
The Police Commissioner is accountable for the operational response to threats to national security, including terrorism, and has a key role through the Officials Committee for Domestic and External Security Coordination (ODESC). ODESC is composed of government and non-government agencies that work together to manage counterterrorism efforts.
…In comparison to law enforcement agencies in the U.S., the New Zealand Police has limited resources and personnel. This constrains its response time to calls and the type of response. Nevertheless, police typically respond to major incidents with the appropriate personnel. The New Zealand Police is at the tail end of a drive to employ an extra 1,800 new recruits.
Police harassment, misconduct, and corruption are not significant issues. Detained individuals have rights enshrined under the New Zealand Bill of Rights, including the right to legal representation (which includes an initial free consultation[15].
[15] 'OSAC Country Security Report New Zealand', Overseas Security Advisory Council (OSAC), 23 September 2017, pp.3-4, 20220307123313
In its 2020 Country Report on Human Rights Practices for New Zealand, published on 30 March 2021, the US Department of State reported that:
The New Zealand Police, under the Ministry of Police, are responsible for internal security, and the armed forces, under the Ministry of Defence, are responsible for external security. Civilian authorities maintained effective control over the security forces. Members of the security forces did not commit any significant abuses[16].
FINDINGS & REASONS
[16] 'Country Reports on Human Rights Practices for 2020 - New Zealand', US Department of State, 30 March 2021, Executive Summary, 20210401121843
Receiving country
The applicant claims to be a citizen of New Zealand and on the evidence the Tribunal finds that the applicant is a citizen of New Zealand and that he is outside his country of nationality. The Tribunal finds that New Zealand is his receiving country for the purpose of assessing his claims for protection.
Third country protection
On the evidence, the Tribunal finds that the applicant does not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
The privilege against self-incrimination

During the hearing, the Tribunal asked the applicant about his claims of being involved in criminal activities as those claims are directly relevant to the Tribunal’s determination of this review. The Tribunal is satisfied that the questions were potentially related to criminal activities and as such could have given rise to a legitimate claim of privilege. The High Court has described the privilege as follows: “A person may refuse to answer any question, or to produce any document or thing, if to do so may tend to bring him into the peril and possibility of being convicted as a criminal”[17]. In SZHWY v MIAC[18], the Full Federal Court held that if a common law privilege applied, such as the privilege against self-incrimination, an applicant appearing before the Tribunal would be entitled to refuse to answer questions on the basis of a reasonable excuse under s 433(3) (which provides that the offence of refusal to answer questions under s 433 does not apply if answering the question might tend to incriminate the person). In that case the Full Federal Court also held that the Tribunal is obliged to advise the person appearing before it, if it appears that a question asked may give rise to a legitimate claim of that privilege. Although the applicant is not currently subject to charges, there would appear to be an appreciable risk that disclosing the information may tend to prove the commission of an offence or add to the likelihood of steps to prosecute him. The Tribunal is satisfied that in assessing the applicant’s claims, the Tribunal cannot draw an adverse inference from the applicant’s invoking the privilege. The Tribunal is also satisfied that in relation to his brother, and given that there are pending charges, there is an appreciable risk that disclosing the information may tend to prove the commission of an offence.
[17] Sorby v Commonwealth (1983) 152 CLR 281, 288
[18] SZHWY v MIAC (2007) 159 FCR 1
Within that context, and being mindful of the applicant’s choice to refuse to answer a number of questions invoking the privilege against self-incrimination, for the following reasons, the Tribunal is not satisfied that the applicant’s claims are credible.
Prior to advising the applicant of the privilege against self-incrimination, the Tribunal asked the applicant a number of questions concerning his claim of involvement with the Mongrel Mob (MM/Mob). The Tribunal asked the applicant about his claim that he has lived a “colourful life” and has a “chequered past”. He stated that “once you’re in you’re in” and that the MM has not taken it well. He stated that he wanted to take a different course in his life. The Tribunal asked the applicant to give specific details about his activities with the underworld organisations. He stated that in Australia he was involved in activities of the group such as “extortion...just that’s it…”. The Tribunal asked him about the group. He initially stated that he was not “sure” but later said “it seems to be the Mongrel Mob” group. The Tribunal asked the applicant if the MM operated in Australia and he stated that he was not sure of their current movements as he has been out for many years. He stated that he encountered other individuals who wanted to be associated with “these people”. He stated that in prison he had multiple altercations and he was placed in isolation for his safety as well as the safety of other inmates. The Tribunal is mindful that the applicant has claimed that he was involved with the MM, however the Tribunal finds it odd that when questioned by the Tribunal, he was not sure about which group to which he was referring. The applicant is claiming that he and his brother were targeted by the MM, yet his answers above reflected a level of uncertainty, raising doubts about his claims.
The Tribunal asked the applicant when he discontinued his involvement with the group and, among other things, he said “I can’t give you a date about that…I can’t…before I was [age] put it that way…” He said he could not provide an estimate because “I did not document it”. The Tribunal noted that the event would have been significant. He said, “you can assume what you like…I would be guessing”. He said when he left it was static and things went quiet. He said he lived a peaceful life but it was not until deportation that they started “hitting my family” and telling him that he would “be done” on his return. The Tribunal is of the view that the applicant’s responses in relation to when he discontinued his involvement with the group were vague, raising doubts about his claims. More importantly, it is difficult to see why, if he had disconnected from the group before he was [age] years old (he is now [age]), he would be of interest to the group a few years later, that is from 2016.
The applicant has claimed that a correctional officer during his incarceration knew about the threats. He stated that from 2016 until 2020, he was receiving threats and an intelligence officer intercepted and spoke to him. The Tribunal asked if there is a report about those threats and he stated that there was and he would make an effort to provide the report to the Tribunal. The Tribunal asked him why he has not attempted to obtain the report, and he said, “I cannot answer that…it’s very miss of me”. He said he would provide those reports and he would start immediately to chase them all up. The Tribunal gave the applicant time and multiple opportunities to provide those reports but he never did. The Tribunal considered issuing a summons on its own volition but given the applicant’s continued assertions that he would do so and then say the matter can be left as is, the Tribunal did not consider a summons to be warranted. The Tribunal is satisfied that it gave the applicant a proper opportunity to provide any supporting documents upon which he intended to rely. The Tribunal is mindful that with limited exceptions, the Tribunal is not under a duty to obtain information. The applicant is represented by a legal practitioner who acts in the applicant’s best interest.
Despite promising to do so, the applicant has not provided the claimed reports concerning the claim that the Australian prison authorities, [had] intercepted threatening correspondence to the applicant. The representative made submissions that the applicant has made unsuccessful attempts to obtain the report but was told that a subpoena would be required. The applicant stated that he has made attempts without success to obtain the report. He stated that he has been advised that [Ms A] is no longer the intelligence officer and he has been told that a subpoena is required, which he understood only a Court could achieve. The Tribunal pointed out to the applicant that he is represented by a legal practitioner who is familiar with the Tribunal’s procedures, which include the ability to issue a summons. The Tribunal indicated to the applicant that no such request has been made. The applicant advised the Tribunal that the issue can be left as is.
The Tribunal notes the applicant’s advice to the Department that he would provide that report, which he never did. His reasons for not providing them to the Tribunal are not persuasive or convincing. Any such report would arguably be a significant and potentially highly persuasive corroborative piece of evidence to support the applicant’s claims. In those circumstances, the Tribunal has decided to draw adverse conclusions on the basis that the applicant has failed to provide any corroborative evidence.
Both the applicant and his brother gave evidence that, apart from the door knocks, nothing physical happened to their parents. The Tribunal is not suggesting that door knocks, which can amount to harassment and intimidation, are not harm or cannot amount to serious or significant harm; it is, however, far-fetched that given the claimed physical assault on the brother in prison and the claimed threats to the applicant in Australia, no other harm had come to the parents. This raises further doubts about the applicant’s claims.
A significant issue providing further evidence in support of the Tribunal’s findings is the delay in lodging the application for a protection visa. The Tribunal asked the applicant about the delay, given the claim that he was being threatened. He said they know everything about him. He said he had to do something because his brother was being attacked because of him. He stated that he had no reason to seek protection until the threats and his brother’s attack in jail because of him. He stated that when the threats began to affect him, his brother and family, he felt the pending danger. The Tribunal indicated to the applicant that the delay could raise doubts about the claims. He stated he was worried and felt it was “well and good” when it was just him but that when actions started to affect others, he perceived the “elevated risk…it was unprecedented”. The Tribunal indicated that it could be suggested that he applied for a protection visa as a last resort. He said he did not want any of that “garbage” to be brought to light but due to the elevated risk, he had to apply.
Without intending to engage in circular reasoning, the applicant’s explanations could be persuasive, unless one considers the circumstances and other contexts. The Tribunal observes that in relation to the cancellation of his Subclass 444 visa and in response to the NOICC, as well as submissions to the Tribunal relating to the s 501 cancellation, he did not raise any protection issues. He gave evidence before this Tribunal that he was receiving threats from 2016 until 2020. In response to the Tribunal’s concerns, the applicant stated that back then the threats were only verbal but that when his brother was hospitalised, the threats were “fair dinkum…” He stated that although initially he had a lawyer acting for him in the cancellation process, he could no longer afford the lawyer. He also indicated that once his brother was hospitalised, he realised that the threats were real but initially considered them to be a way of life. The Tribunal is not persuaded by those explanations. In oral submissions to the Tribunal, the applicant’s representative referred to the s 501 cancellation and the fact that the applicant did not raise protection claims. The representative argued that it is important to consider the fact that the applicant was not legally represented and hence the applicant might not have been aware that he could make those claims. Although reasonable in isolation, this does not explain why the applicant waited until 2022 to lodge an application for a protection visa.
Central to the applicant’s explanation about the delay in lodging the application for a protection visa is that he became alarmed when his brother was assaulted in early 2020. The applicant lodged the application for a protection visa on 10 February 2022, approximately two years after the alleged incident, for the claimed reasons occurred. He also claimed that he received threatening correspondence in 2020 while incarcerated in [a] Correctional Centre, which made him fear for his life and safety to return to New Zealand. Lodging an application for a protection visa in February 2022 in light of those claimed incidents raises serious doubts about the applicant’s claims as well as his overall credibility. The Tribunal, in those circumstances, has decided to give significant weight to the applicant’s delay in lodging the application for a protection visa as evidence that the applicant has fabricated claims in order to bolster the application for a protection visa.
The applicant said that his brother is the “only piece of evidence” to corroborate his claims. The Tribunal took evidence from his brother who is incarcerated in New Zealand. The brother has been charged with others with serious firearm offences. The brother gave evidence that the matter is pending and as such the Tribunal does not draw any adverse conclusions on the basis of those charges. However, in a document titled Grounds for Opposing Bail, the grounds for opposing bail by the Crown included failing to appear, subsequent warrants for arrest issued on 27 separate occasions, previous convictions for breach of conditions of community detention, failing to answer police bail, risk of defendant interference with witness/evidence, risk of offending whilst on bail (the defendant had committed 16 offences whilst on bail), ongoing concerns of retribution towards the victims, character and past conduct, including 41 previous convictions, of which is injuring with intent and two were male assaulting female, all of which could suggest that the incident of February/March 2020 in relation to the brother is related to issues other than the applicant’s claimed dissociation from the MM.
The Tribunal is of the view that although the evidence of the brother somewhat corroborates the applicant’s version of events, the witness’s extensive criminal record and his direct family relationship with the applicant mean that the Tribunal has decided to give his evidence limited weight. The brother’s evidence does not outweigh other concerns. On the evidence, the Tribunal accepts that the applicant’s brother had suffered an assault whilst in prison in New Zealand in 2020 and that the incident was referred to the prison authorities in New Zealand; however, in consideration of the evidence as a whole, the Tribunal is not satisfied that the incident was related to any of the claimed events, including but not limited to the applicant’s claimed involvement in the MM. The evidence before the Tribunal indicates that the brother has a serious criminal history and the Tribunal would be speculating as to what actually happened or caused the incident to occur. Moreover, it is the brother’s evidence that the incident was reported to the prison authorities but there is no corroborative evidence to objectively support the claim that this was related to the applicant’s claimed involvement in the MM.
Country information available to the Tribunal and cited above provides inconsistent information about the potential consequences to those who leave gangs in New Zealand. There are reports that leaving a gang organisation would be considered very seriously and that as a result, there would be a risk of being seriously harmed in New Zealand for that reason. There are, however, other multiple recent reports from media sources that former members of criminal gangs in New Zealand have not been subjected to ill-treatment as a result of leaving an organisation. On balance, the Tribunal is not satisfied that country information supports or contradicts the applicant’s claims. The Tribunal has therefore not used the country information in a manner that is adverse to the applicant.
In light of the above concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant has never been involved in any activities relating to the MM, or that he or his brother has suffered any harm as a result of the applicant’s claimed involvement with the MM. For those reasons, the Tribunal does not accept that the applicant has received any threats anywhere or that the assault on his brother in prison in New Zealand was because of the applicant’s disassociation from the MM, or that the applicant’s parents have received door knocks for the claimed reasons.
The Tribunal accepts that the applicant is of the Christian faith and that he has been in a relationship with an Australian citizen. The Tribunal accepts that the applicant wants to live a more positive life and that his Christian faith has provided guidance.
The applicant confirmed that he is not claiming to fear harm on the basis of his faith and there is no evidence before the Tribunal to suggest that Christians in New Zealand have been the subject of harm based on their faith. The applicant’s relationship with an Australian citizen is not directly relevant to the Tribunal’s consideration in terms of whether he meets the criteria to be granted the protection visa. That relationship may be relevant to other processes, including cancellation, but this case is not about the cancellation of the visa.
In consideration of the evidence as a whole, and for the above reasons, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm or that there is a real chance or a real risk of the applicant facing serious or significant harm on the basis of those claims.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Antoinette Younes
Deputy President

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 3090

2 August 2022

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