2203985 (Refugee)

The applicant, a New Zealand national, sought review of the refusal of a permanent Protection (XA 866) visa. The applicant had a substantial criminal history, leading to the cancellation of his Subclass 444 Special Category (Temporary) visa. He claimed he feared persecution in New Zealand due to past involvement with criminal organisations, specifically the Mongrel Mob, and that his life and his family's lives were in danger. He also asserted claims based on his Christian faith and membership in a particular social group.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958. This required determining if Australia had protection obligations towards him, specifically whether he was a refugee with a well-founded fear of persecution, or if there were substantial grounds for believing he would suffer significant harm if removed to New Zealand. The Tribunal was also required to consider the applicant's claims of persecution based on religion and membership of a particular social group, and whether effective protection measures were available in New Zealand.

The Tribunal found that the applicant's claims lacked credibility, particularly concerning his alleged involvement with the Mongrel Mob and the threats he claimed to have received. It noted that the applicant had a history of criminal activity and that his visa had been cancelled under section 501 of the Act. The Tribunal considered the applicant's assertion of a well-founded fear of persecution due to his Christian faith and his decision to disassociate from criminal elements, but concluded that these claims were not substantiated to the required legal standard. Furthermore, the Tribunal considered the possibility of relocation within New Zealand and the availability of state protection, finding that the applicant had not demonstrated that such measures would be ineffective.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. It concluded that the applicant did not satisfy the criteria under section 36(2) of the Migration Act 1958, as he had not established a well-founded fear of persecution or a real risk of significant harm upon return to New Zealand. The Tribunal also noted that the applicant did not satisfy the criteria under section 36(2)(b) or (c) by being a member of the same family unit as a person who held a protection visa.