2206198 (Refugee)

2206198 (Refugee) [2022] AATA 4775 (13 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sam Issa
CASE NUMBER:  2206198
COUNTRY OF REFERENCE:                   New Zealand
MEMBER:Jason Pennell
DATE:13 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2022 at 1.00am

CATCHWORDS
REFUGEE – protection visa – New Zealand – particular social group – fear of harm from New Zealand Bikie Gang members due to sexual assault crime – claims that gang members became aware of applicant’s criminal offence during immigration detention – threats via social media – mental health issues – no family in New Zealand – credibility – no evidence of gang members’ awareness of applicant’s criminal offence – social media threat appear to be elaborate hoax by applicant – able to access mental health services – decision under review affirmed

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

CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 April 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 29 March 2022. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 27 April 2022 and provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 17 June 2022 via MS teams from detention to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick.
At all times throughout the hearing the applicant was courteous, lucid and cognisant. He was able to give evidence to the Tribunal in an effective and efficient manner and respond meaningfully to the Tribunal’s questions. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANTS CLAIMS and evidence

Identity and country of reference

The applicant claims that he was born on [date] in Auckland, New Zealand. He claims to be a citizen of New Zealand and an ethnic Cook Island Māori. The applicant is also known with the alias [deleted].
The applicant claimed that he entered Australia on a valid New Zealand passport which he claims to have lost.[1] The applicant did not provide the Tribunal with any documentary evidence of his identity, nationality, or citizenship. Nevertheless, the tribunal notes that the delegate found that that the applicant’s biographical details matched those recorded on Departmental systems. As such, based on the available Departmental records, the Tribunal is satisfied that the applicant has not given a false identity to the Department or the Tribunal.[2]
[1] Protection visa application form dated 21 March 2022, Dept File No[deleted]
[2] Protection visa primary decision record dated 27 April 2022, Dept File No [deleted]
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the applicant’s evidence, the Tribunal finds that he is a citizen of New Zealand and as such his protection claim will be assessed against New Zealand as the country of reference and ‘receiving country’ respectively

Migration history

The applicant first entered Australia on a Special Category visa (TY-444) (‘the 444 visa’) [in] November 1997. The applicant has departed and re-entered Australia on a 444 visa on several occasions since his initial arrival.
The applicant was last granted a 444 visa on 14 July 2010 which was cancelled on 19 April 2017[3] on character grounds, as the applicant was convicted with sexually assaulting his stepdaughter in 2011 and served a total of 9 years in prison until October 2019 when his sentence was discharged.[4]
[3] Department Movement Details, AAT file 2206198, Doc ID 9836953
[4] Applicant’s statutory declaration dated 5 June 2022, AAT file 2206198, Doc ID 9848290
The applicant is currently an unlawful non-citizen[5] and has been held in immigration custody [since] [October] 2019.[6] The applicant has not travelled to any other countries in the [years] preceding his protection visa application[7].
[5]    Department Movement Details, AAT file 2206198, Doc ID 9836953
[6]    Applicant’s statutory declaration dated 5 June 2022, AAT file 2206198, Doc ID 9848290
[7]    Protection visa application form dated 21 March 2022, Dept File No [deleted]
The applicant made an application for a protection visa on 29 March 2022.

Applicant’s claims for protection

The applicant first submitted claims for protection when he applied to the Department for protection on 29 March 2022[8]. The applicant’s claims are as follows:
Why did you leave that country/those countries?
‘I left New Zealand and chose to come to Australia for a better life and more work opportunities.
All my family members reside in Australia, and I have no familky members in New Zealand.
I also left New Zealand due to drug and alcohol problem in N.Z as the majority of people are drug or alcohol abusers and I wanted to get away from such influence.’
What do you think will happen to you if you return to those country/those countries?
‘Since coming into Immigration Detention I have been placed in a compound were New Zealnd Bikies were in the next compound holding Quarintined detainees and as I was in the next-door section in [immigration detention] compound holding sex offenders the N.Z bikies had threatened to kill me and bury or bury me alive.
I had spoken to another detainee [Mr A] regarding my issue which [Mr A] then spoke to some one from the Australian Border Force (ABF) and on the same day I was moved into [another wing of immigration detention].
The NZ bikies know the area I come from in NZ and I have been threatened with if i return to NZ.
[8] Protection visa application form dated 21 March 2022, Dept File No [deleted]

I also received threats via [social media], see attachment 2, of the threats that the person will publish on the media to intentionaly ruin my life.
I am very scared to go back to NZ because of the NZ bikies and the threat of the media publicity that I will be buried alive or killed.
See attachment 2.’
Did you experience harm in that country/those countries?
‘No’
Did you seek help within that country/those countries after the harm?
‘No. ‘My Grandmother found out that I was hanging around a bad crowd of people in NZ and that I was using drugs and alcohol, so my grandmother wanted me to leave NZ and come to Australia.’
Did you move, or try to move, to another part of that country/those countries to seek safety?
‘No. No because I did not have enough money.’
Do you think you will be harmed or mistreated if you return to those country/those countries?
‘Yes. I will be seriously injuried and most likely buried alive or killed due to my convictions which the bikies from NZ that have been deported from Australia will find me and bury me alive or kill me.’
Do you think the authorities of that country/those countries can and will protect you if you go back?
‘No. Bikies are a dangerous group of people which they do not care about any law and they hate people with my type of convictions.’
Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
‘No. I have no family in NZ to support me.’

The delegate summarised the applicant’s claims as[9]:
[9]    Protection visa primary decision record dated 27 April 2022, Dept File No [deleted]
·      He left New Zealand to come to Australia for a better life and more work opportunities.
·     He also left New Zealand due to drug and alcohol problems in New Zealand, as he wanted to get away from the influence of drug and alcohol users there.
·     All his family live in Australia, and he has no family in New Zealand
·     In immigration detention [he] was placed in a compound holding sex offenders and New Zealand bikies were in the next compound. The bikies threatened to kill him or bury him alive.
·     He received threats from a person via messaging [app]. The person said they would publish information on social media to intentionally ruin his life. He fears the media attention if he returns to New Zealand.
·     He fears that if he returns to New Zealand he will be seriously injured, killed or buried alive by bikies.
·     The authorities in New Zealand will not protect him as bikies are a dangerous group of people who do not care about any laws and hate people with his type of convictions.
·     He cannot relocate within New Zealand to avoid harm as he has no family there to support him.

Applicant’s Evidence

The applicant’s evidence was that he was born on [date] in Auckland, New Zealand. His evidence was that he is an ethnic Cook Island Māori and that his religion is Christian. The applicant claims that he speaks Cook Island Māori.[10]
[10] Protection visa application form dated 21 March 2022, Dept File No [deleted]
The applicant’s evidence was that despite having been born in Auckland New Zealand, he lived in the Cook Islands until around the age of [age] years. The applicant’s evidence was that he attended school in the Cook Islands until year [grade]. The applicant’s evidence was that his father was an alcoholic and would from time to time abuse his mother. His evidence was that throughout his school days he suffered sexual and physical abuse. As a result, after he left school, the applicant went to live with his grandparents. He did not work and was engaged primarily in farming, fishing and helping his grandparents around their home.
When the applicant was [age] years of age, he went to Auckland, New Zealand to live with his aunty. The applicant did not work while he was in Auckland and became addicted to drugs. His evidence was that because of his drug addiction he was constantly getting into trouble in New Zealand. As a result, on the suggestion of his grandmother,[11] in or about 1997 he travelled to Australia to live with his aunty to help change his life.
[11] Protection visa application form dated 21 March 2022, Dept File No[deleted]
The applicant’s father and mother and his siblings all subsequently travelled to Australia. The applicant’s father had worked [in] the Cook Island and [in] New Zealand. The applicant claims that in addition to his mother and father he has [several] siblings; his parents and [a number of] siblings are all permanent residents in Australia, while the other [siblings] are Australian citizens.[12] His evidence was that he does not maintain contact with relatives outside of Australia.
[12] Applicant’s statutory declaration dared 5 June 2022, AAT file 2206198, Doc ID 9848290
The applicant’s evidence was that in or about 1999 he entered a de-facto relationship with his wife. They were married in 2004. The applicant separated from his wife [in] December 2009[13]. The applicant’s evidence was that he has a has [an age]-year-old stepdaughter who is domiciled in Australia.
[13] Protection visa application form dated 21 March 2022, Dept File No [deleted]
The applicant commenced working in Australia as [an occupation]. The applicant completed a [course] at [TAFE] and commenced work [in that industry] from in or about January 1998 for approximately two years. He then worked as [another role] for [a company][in] Victoria.[14]
[14] Protection visa application form dated 21 March 2022, Dept File No [deleted]
In or about 2011 the applicant was charged with rape against his stepdaughter. The applicant’s evidence was that he was convicted of the charge and sentenced to 9 years imprisonment. The applicant has served his sentence. The applicant has been in immigration detention since 2019.
The applicant’s evidence was that while he was in detention some fellow inmates who are New Zealand Bikie Gang members (N.Z. Bikies) discovered that he had been charged and convicted of rape. The applicant claims the N.Z. Bikies were in immigration detention waiting to be deported to New Zealand. The applicant claims that while he was in detention because he was convicted of rape the N.Z. Bikies threatened to kill him and bury him alive. The applicant claims that the N.Z. Bikies know the area that he comes from in New Zealand, and that he was threatened with serious harm if he returns to New Zealand.
The applicant’s evidence was that in detention inmates are separated into protection and mandatory sections. The applicant was in the protection section of detention and did not speak to other inmates. The applicant claims to have spoken to another detainee, known as [Mr A] regarding the threats by the N.Z Bikies. The applicant claims that [Mr A] spoke to a person from the Australian Border Force (ABF) and on the same day he was moved into [another wing of immigration detention].
In addition, the applicant claims that he received threats via social media. The applicant provided the Tribunal with copies of text messages and photos which he claimed had been sent to him via [social media] by members of the N.Z. Bikies. The applicant’s evidence was that the photos had been altered to look like photos of [deleted]. The applicant claimed that members of the N.Z. Bikies threatened the applicant to post the photos on social media if he returned to New Zealand for the purposes of exposing his identity and background in New Zealand.
The applicant claims that the N.Z. Bikies hate people who have been convicted of a sexual offence. As a result, he claims that if he is returned to New Zealand, he will be found by the N.Z. Bikies and killed. The applicant claims that the technology today will enable the gang members to threaten him electronically without being traced.
In addition, the applicant claims that he cannot return to the Cook Islands as he will be required to travel through New Zealand and will not be protected.

Applicant’s supporting documentation

The applicant has provided the following material in support of his Protection visa application:

(a)A copy of an email from the New Zealand Ministry of Health regarding a travel declaration he provided them prior to his ‘no isolation’ travel to New Zealand[15]
(b)Screenshots of exchange of messages on [social media], which includes alleged explicit images of the applicant.[16]
(c)Applicant’s statutory declaration dated 5 June 2022, outlining the applicant’s background, family composition, past criminal offence relating to rape, why he fears returning to New Zealand, devoid of effective protection in New Zealand and acts of self-harm.[17]
[15] Dept File No [deleted]
[16] ibid
[17] Applicant’s statutory declaration dated 5 June 2022, AAT file 2206198, Doc ID 9848290
COUNTRY INFORMATION

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 (the Department), 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.
There is no Country Information Report on New Zealand prepared by DFAT for protection status determination purposes, therefore, the Tribunal has referred to the following supplementary information and notes:

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 outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Credibility

When assessing the applicant’s claims, the Tribunal must make findings of fact in relation to each claim. In doing so, the Tribunal is mindful of the difficulties faced by an applicant, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[18] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[19]
[18] Section 5AAA, the Act.
[19] MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70].
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[20] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[20] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at p.482.
If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[21] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[21] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

Applicant’s claims as a refugee
Applicant’s claim within s 5J(1) of the Act

The applicant claims to have a well-founded fear of persecution within the scope of s 5J(1)(a) of the Act by reason of his membership of a Particular Social Group (PSG), that is as a person who has been convicted of a serious crime who fears being seriously harmed by bikies upon his return to New Zealand. A PSG is defined in s.5L of the Act which states:
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.
Therefore, pursuant to s.5L of the Act to be considered a member of a PSG it is necessary for the applicant to share (or be perceived to share) an innate or immutable characteristic with each member of the group or the characteristic must be fundamental to a member’s identity or conscience or distinguish the group apart from society.[22] In this case, the applicant claims that he will be seriously harmed on his return to New Zealand by N.Z. Bikies due to the fact that he has committed a serious crime. While having been charged with a serious crime cannot be described as innate, it may be possible to describe it as an ‘immutable characteristic’ in the sense that the fact the applicant has been charged and convicted of a serous crime cannot be changed. In addition, the fact that the applicant has been charged with a serious crime may be described as a characteristic that distinguishes the group from society.[23] As a result the tribunal accepts that the applicant is a member of a PSG as claimed.

Applicant’s well-founded fear

[22] Section 5L of the Act.

[23] Section 5L(c)(iii)

Section 5J of the Act states that for the purposes of an application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[24] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[25]
[24] (1989) 169 CLR 379 at 396.
[25] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted if he returns to New Zealand.
However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [26]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[26] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.
In MIEA v Guo, the Court stated that:^[27]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[27] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Having considered the available country information and the applicant’s evidence to the Tribunal, for the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on a subjective but does not accept that he has a well-founded fear on an objective basis if he is returned to New Zealand.

Accepted facts

Based on the applicant’s evidence and the documentation provided to the Tribunal by the applicant, the Tribunal accepts and finds that:
(a)The applicant was born on [date] in Auckland, New Zealand.
(b)The applicant is an ethnic Cook Island Māori.
(c)The applicant is a Christian.
(d)The applicant speaks Cook Island Māori.[28]
[28] Protection visa application form dated 21 March 2022, Dept File No [deleted]
(e)The applicant attended school in the Cook Islands until year [grade] and at the age of around [age] years of age travelled to Auckland New Zealand.
(f)The applicant initially arrived in Australia [in] November 1997.[29]
(g)The applicant’s father and mother live in Australia and are permanent residents.
(h)The applicant has [a number of] siblings living in Australia, [a number] are permanent residents and the other [are] Australian citizens.
(i)The applicant completed a [course] at [TAFE] and commenced work [in that industry] from in or about January 1998 and in or about 2000 commenced work as [another role] for [a company][in] Victoria.
(j)The applicant entered a de-facto relationship with his wife in or about 1999 and were married in 2004.
(k)The applicant separated from his wife [in] December 2009[30].
(l)The applicant has daughter who was born in [year] and a stepdaughter who was born in [year]. Both are domiciled in Australia.
(m)In or about 2011 the applicant was charged and convicted of sexual offences against his stepdaughter for which the applicant has served nine-year term of imprisonment.[31]
(n)The applicant has been in immigration detention since 2019.

Applicant’s claims of being threatened by N.Z Bikies.

[29] Applicants Movement records dated 2 June 2022; AAT file 2206198, Doc ID 9836953

[30] Protection visa application form dated 21 March 2022, Dept File No [deleted]

[31] [Source deleted].

The applicant claims that if he is returned to New Zealand, he will be seriously harmed by reason of threats he received from N.Z Bikies while he was in detention. The applicant claims that while he had been in detention some N.Z Bikies, who were also in immigration detention waiting to be deported to New Zealand, discovered that he had been charged and convicted of rape. He claims that the N.Z. Bikies threatened to kill him or ‘bury him alive’ if he was returned to New Zealand. The applicant was not able to identify the individual who had verbally threatened him. In addition, he was not able to say how the N.Z Bikies came to know that he had been convicted of rape. The applicant claims that the N.Z. Bikies know the area that he comes from in New Zealand and that they will find him if he is returned to New Zealand. However, the applicant was not able to say how the N.Z Bikies knew where he came for in New Zealand as claimed.
The applicant’s evidence was that, while in detention, he was separated from other inmates and did not speak directly to the NZ Bikies. The applicant claims that he spoke to a fellow detainee, [Mr A], who spoke to the ABF about the threats received by the applicant. As a result, the applicant was moved to [another wing of immigration detention].
The applicant provided a copy of his International Health and Medical Service Clinical (‘IHMS’) Records for the period he has been detention, including his IHMS Health Summary Report for Commonwealth Ombudsman dated [September] 2021 (‘the IHMS Summary’) (‘the medical records’).[32] The applicant did not provide any evidence of having been harmed while in detention and the medical records provided indicate that the applicant had not been physically harmed by any fellow detainee. Finally, the there was no record of the applicant having been moved to [another wing of immigration detention] as claimed.
[32] Applicant’s International Health and Medical Service Clinical Records (‘IHMS”), AAT file 2206198, Doc ID 10100529
In addition, there is no record of the applicant having been threatened by NZ Bikies in his medical records. The IHMS Summary notes that [in] November 2021, [January] 2021, and [January] 2022 the applicant attended consultations with his IHMS mental health team reporting symptoms of depression and anxiety. The IHMS Summary reports that [in] January 2022 the applicant reported that he had cut his wrists two days prior, which he described as having made him ‘feel better.’ The applicant has been diagnosed with bipolar disorder and antisocial personality traits.[33] The applicant had a history of self-harm and suicide attempts in jail and in the community.[34] On or about [date] May 2022 the applicant attempted to commit suicide by hanging himself by a noose from the bathroom door.[35] The applicant’s evidence was that he had been previously admitted to a psychiatric hospital. His medical records state that he has a history of having been admitted to hospital for his mental health condition. The report notes that the applicant has been prescribed medication (including amitriptyline, mirtazapine and meloxicam)[36] to assist with managing his mental health issues. The applicant has had a history of not maintaining his medication, however, the clinical report dated [June] 2022 notes that the applicant was feeling better and stable. The applicant reports he understood the implications of not taking his medication and that he is able to ‘distract himself from the voices as they come.’[37]
[33] Applicant’s IHMS Clinical record dated [April] 2021 & [June] 2022, AAT file 2206198, Doc ID 10100529
[34] Applicant’s IHMS Clinical record ‘General Health Summary’ [April] 2021, AAT file 2206198, Doc ID 10100529
[35] Applicant’s IHMS Clinical record dated [May] 2022, AAT file 2206198, Doc ID 10100529
[36] Applicant’s IHMS Clinical record ‘General Health Summary’ [April] 2021, AAT file 2206198, Doc ID 10100529
[37] Applicant’s IHMS Clinical record dated [June] 2022, AAT file 2206198, Doc ID 10100529
While the Tribunal accepts that it is plausible that N.Z Bikies in immigration detention may have threatened and intimidated the applicant as claimed upon discovering his criminal conviction, the applicant was not able to inform the Tribunal of the identity of the N. Z. Bikies who threatened him or how they came to know that he had been convicted of rape. The applicant evidence was that he had not been threatened directly but had been informed by others.
The IHMS Clinical records[38] notes that the applicant has been in Australia for over 20 years, served an 8-year prison sentence and has been in detention for 14 months. The General Health Summary refers to the applicant having a ‘criminal history’ and reports that there was one incident for which he was jailed for 9 years. There is no mention of the charges for which he was convicted and notes that the applicant did not want to talk about it.[39] The applicant’s evidence was that he had not discussed his conviction out of fear of reprisals. However, the applicant’s medical records did include intimate details about the applicant’s past, including having been sexually assaulted as child.[40]
[38] Applicant’s IHMS Clinical record dated [April] 2021, AAT file 2206198, Doc ID 10100529
[39] Applicant’s IHMS Clinical record ‘General Health Summary’ [April] 2021, AAT file 2206198, Doc ID 10100529
[40] Applicant’s IHMS Clinical record ‘General Health Summary’ [March] 2021, AAT file 2206198, Doc ID 10100529
The medical reports note that the applicant took issue with his potential involuntary deportation and was appealing his deportation,[41] but makes no mention of him having been threatened by N.Z Bikies as claimed. There is no report of the applicant fearing for his safety because of threats received by N.Z. Bikies either in detention or upon him being returned to New Zealand. In addition, despite his evidence that he had been isolated for other inmates in detention, there is no mention in his medical reports of him being kept away for the general population for his safety as claimed. In circumstances where the medical records indicate that the applicant had poor medication compliance and had suffered severe mental health issues, including bipolar disorder, and where he had a history of self-harm and attempted suicide, if the applicant had received threats as claimed and felt so insecure and threatened by fellow inmates, the Tribunal would have expected that this would have been noted in his medical reports. No such record has been made. In fact, the Tribunal notes that the clinical report dated [June] 2022 states that there is only a low risk of the applicant being harmed by others.
[41] Applicant’s IHMS Clinical record ‘General Health Summary’ [March] 2021, AAT file 2206198, Doc ID 10100529
Therefore, based on the applicant’s evidence and the documentation provided to the Tribunal, the Tribunal does not accept the applicant’s evidence that he was threatened by N.Z Bikies in immigration detention as claimed.

Applicant’s claimed threats by social media.

In addition, the applicant claims that he received threats via social media. The applicant provided the Tribunal with copies of text messages and photos which he claimed had been sent to him via [social media] by a member of the N.Z. Bikies. The applicant was not able to identify the NZ Bikie who he claimed sent the text messages and photos.
The text messages appear to threaten to publish nude photos of the applicant on ‘all social media platform’ and to have him reported to the police. The applicant claims that the threat to publish the nude photos is if he is returned to New Zealand. The threat is to publish the photos on social media sites such as [deleted]. Having considered the nature of the nude photos, the Tribunal finds it extremely unlikely that they would be able to be published the nude photos on those sites mentioned in the format as presented to the Tribunal. Accordingly, the Tribunal finds that there is no real chance that the photos would be posted as claimed.
In any event, the text message correspondence between the applicant and the person alleged to be threatening to post the nude photos makes no mention of publishing the photos if the applicant is returned to New Zealand. Rather, the correspondence appears to be an attempt to extort money from the applicant by demanding a ‘little payment’ of [amount]. The natural meaning of the words of the text messages indicates that if the applicant pays [amount] to the person sending the messages, he will avoid having the photos published. The Tribunal notes that at the time of the hearing, the applicant had not paid any money and the photos remained unpublished. Finally, the Tribunal notes that the person allegedly threatening the applicant with the publication of the photos provided his mobile phone number in the body of the text. In such circumstances, it would appear possible for the applicant to have the authorities track down the person responsible for the post in the event it is posted to social media.
Finally, the nude photos and text messages appear to be an elaborate hoax by the applicant. The applicant claims that the photos were not of him rather they had been altered to make it look like him in the photos. The applicant claims that the N.Z. Bikies have access to technology to be able to change the photos to give the impression it is him. The applicant did not provide any explanation as to the technology available to alter the photos. In any event, even considering such technology, the photos are taken at such an angle and in such a manner, that they appear to have been taken by the applicant himself. In addition, the commentary accompanying the photos appears to be confused as to the harm to be inflicted on the applicant. It claims that the photos are to be posted on social media for the purpose of him being arrested and punished for his bad deeds, in circumstances where he has already been convicted of his crime. The fact that the person’s phone number is included in the commentary appears illogical and gives it the impression that the post is nothing more than an attempts by the applicant to make the post appear to be a threat as claimed. Accordingly, the Tribunal does not accept that the applicant has been threatened by NZ Bikies to post his nude photos on social media if he is returned to New Zealand as claimed. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to New Zealand by reason of nude photos of him being posted on social media as claimed.

Applicant’s mental health

The applicant did not specifically refer to his mental health, but it was open to him to claim that because of his mental health he will be seriously harmed if he is returned to New Zealand.
As noted above, the applicant was lucid and cognisant throughout the hearing and able to give evidence and respond meaningfully to the Tribunal’s questions.

The applicant provided the medical records, including his IHMS Summary to the Tribunal.[42] His records indicate that the applicant suffers from mental health conditions including bipolar disorder, borderline personality disorder and depression.[43] It was open to the applicant to claims if he is returned to New Zealand, it would deeply exacerbate his anxiety and cause him extreme distress having the potential to unravel his mental health situation. As a result, he is likely to be unable to self-regulate and will become anxious triggering suicidal thinking and negative interactions with people around him.[44] For the reason expressed above the Tribunal has found that there is no real chance that the applicant will be seriously harmed by reason of any threats from N.Z.Bikies.
[42] Applicant’s International Health and Medical Service Clinical Records (‘IHMS”), AAT file 2206198, Doc ID 10100529
[43] Applicant’s IHMS clinical records [June] 2022, AAT file 2206198, Doc ID 10100529
[44] Applicant’s IHMS clinical records [June] 2022, AAT file 2206198, Doc ID 10100529

The country information reports[45] that New Zealanders have access to a range of health services, which are largely funded by the government. Inpatient and outpatient hospital services are free at the point of delivery, along with preventative health care, mental health care and some disability support (social care) services. Co-payments exist to access general practice and related services. These co-payments are offset partially by government subsidies for all patients, with additional support for those on low incomes, children and people with long-term conditions.
[45] Nuffield Trust ‘Primary care for the 21^st Century’ research report by Ruth Thorlby, Judith Smith, Pauline Barnett and Nicholas May September 2012. >
Its reported[46] that in response to the He Ara Oranga (Report of the Government Inquiry into Mental Health and Addiction), the New Zealand government invested $455 million over four years to expand primary mental health and addiction services, enabling people with mild to moderate needs to access free and immediate mental wellbeing advice and support, when and where they need it.
[46] >
A key workstream in this “Access and Choice” work programme is the Integrated Primary Mental Health and Addiction (IPMHA) service which provides easy access to mental wellbeing support available in GP sites across the country. Other workstreams include those focussed on the expansion and development of kauapapa Māori, Pacific and youth specific services. It’s claimed that the IPMHA programme reduces waiting times and barriers to access with 43% of people being seen on the same day they asked for support and the vast majority being seen within 3-5 days.
Therefore, based on the available country information, the Tribunal finds that there are range of mental health facilities in New Zealand that would be able to be accessed by the applicant. The quality of care is good and comparable with most developed countries. The country information indicates that the New Zealand government has positively recognised mental health within society and acted positively towards those suffering from mental illness. The country information indicates that mental health care is available to those who require it. Therefore, based on the available country information the Tribunal is not satisfied that the applicant would be denied access mental health services such that any refusal would amount to a deliberate act or omission on the part of the New Zealand authorities. There was no suggestion that the applicant would be denied access to mental health care services to the same level as other New Zealand citizens or that he would be specifically denied such mental health services. As a result, the Tribunal finds the applicant would not be subjected to systematic and discriminatory conduct by New Zealand authorities in the provision of mental health services.

The Tribunal accepts that it is not possible to monitor whether the applicant would access mental health services in New Zealand and that there is a risk that he will avoid accessing any such services. It was put to the Tribunal that given the lack of family support in New Zealand its likely he would avoid his his medication and would be at risk of self-harm or even attempted suicide. In the event if the applicant fails or refuses to access mental health services in New Zealand, due to his lack of family support or any other reason, the Tribunal does not accept that the applicant possesses a well-founded fear of persecution because of his mental health condition. That is, any failure of the applicant to access mental health services in New Zealand would not involve systematic and discriminatory conduct[47] and as such would not amount to a well-founded fear of persecution in the event he is returned to New Zealand.
[47] Section 5J(4) of the Act.
For these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in New Zealand and as such finds that there is not a real chance, he will suffer serious harm if he is returned to New Zealand as a person suffering from a mental illness.

Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm arising from her economic circumstances for reasons mentioned in s 5J(1)(a) or any other claimed reasons, if he was to return to New Zealand from Australia, now or in the reasonably foreseeable future.
Having assessed all the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now or in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1) of the Act if he is returned to New Zealand and he does not satisfy the criterion in s 36(2)(a).

Applicant’s complementary protection claim

The applicant claims that, without conceding in any way his claims under s 36(2)(a) of the Act that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s 36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm on his return to New Zealand based on his claims detailed above. The Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[48]
[48] MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. In particular, the Tribunal has not accepted the applicant’s evidence in relation to his claim of being threatened by NZ Bikies and receiving threats by social media. Accordingly, it found that there was no real chance the applicant would be seriously harmed by the NZ Bikies or by social media posts as claimed. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia because of threats received by NZ Bikies or by social media as claimed by the applicant.
The Tribunal has considered if there is any reason to believe the applicant will face a real risk of significant harm as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 5J(4)(b) in the context of s 36(2)(a).[49]

Applicant’s mental health
[49] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

In relation to any claim that there is a real risk the applicant will be significantly harmed upon his returns to New Zealand by reason of his mental condition, the Tribunal refers to the country information referred to above when considering the applicants claim as a refugee. As previously noted, the applicant was lucid and cognisant throughout the hearing and able to give evidence and respond meaningfully to the Tribunal’s questions.
Therefore, based on the available country information in relation to the mental health services in New Zealand and the applicant’s own evidence as referred to above in these reasons, the Tribunal finds that the applicant will be able to access the necessary care and support in relation to his mental health when appropriate. In particular he would be able to receive adequate treatment (e.g. counselling; psychotherapy; medication) for his diagnosed conditions.[50] Accordingly, the Tribunal finds that there is no real risk that he will suffer significant harm by reason of his mental health in the event that he returns to New Zealand.
Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand, there is a real risk he will suffer significant harm as required by s 36(2)(aa).

Conclusions

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 the Act for the reasons mentioned in s 5J(1)(a). Therefore, the applicant does not satisfy the criterion set out in 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 complementary protection criterion in s 36(2)(aa) and 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 criterion in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Senior Member

Attachment - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

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

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.
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.
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.
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.
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.
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

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.

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.

…

Protection visas – criteria provided for by this Act

…

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.
…

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established