2319894 (Refugee)

2319894 (Refugee) [2024] AATA 2699 (3 April 2024)

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2319894

COUNTRY OF REFERENCE: New Zealand
MEMBER:Simone Burford
DATE:3 April 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 April 2024 at 12:48pm

CATCHWORDS
REFUGEE – protection visa – New Zealand – race – Pacific Islander community – deportee – fear of gang violence – religious extremism – employment – mental health issues – criminal offences in Australia – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499, 501
Migration Regulations 1994, Schedule 2
CASES
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CHB16 v MIBP [2019] FCA 1089
CQG15 v MIBP [2016] FCAFC 146
CSV15 v MIBP [2018] FCA 699
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
FMN17 v MICMSMA [2020] FCA 326
GLD v Minister for Home Affairs [202] FCFCA 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC V SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZSKC v MIBP [2014] FCCA 938
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
WAKK v MIMIA [2005] FCAFC 225
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 5 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is [an age]-year-old citizen of New Zealand.
He arrived in Australia initially in 1999 as the holder of a Class TY-444 Special Category (Temporary) visa (available to New Zealand citizens). He returned to New Zealand in 2004 for a visit and last entered Australia [in] August 2004.
The applicant applied for a protection visa on 20 November 2023. On 5 December 2023 the delegate refused to grant the visa on the basis that he was not owed protection obligations. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.
On 6 December 2023 he applied to the Tribunal for a review of that decision.
Issues
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether he is 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 of such a person. The relevant law is set out below.
Protection claims
Protection visa application
In his application for protection the applicant indicated he was born in New Zealand and held a New Zealand passport. He indicates he reads, speaks and writes English and lists his religion as the Church of Jesus Christ of Latter-day Saints (the Mormon Church). He has never been married. He lists his mother and aunt as being alive and having been born in [Country 1], holding New Zealand citizenship. Both are listed as currently living in Australia. He indicated he does not have contact with relatives outside Australia. He lists a number of friends in Australia.
The applicant detailed his claims for protection in his application form as follows (in summary):
·His parents brought him to Australia to start a new life and get away from all the family conflict that has been happening in New Zealand since his early childhood.
·He is afraid of returning to New Zealand because of the conflict that his family had with gangs in New Zealand.
·He may be attacked as [his named Relative A] was brutally attacked and killed by a gang.
·He is also fearful for his life after the massacre in Christchurch.
·He doesn’t want to return to New Zealand as the community hates 501 deportees.
·Returning to New Zealand won’t help with his stress disorder because he has been in immigration detention for five years.
·He had offences in Australia which involved him being under the influence of drugs ‘which caused drug induced sycosis (sic)’ and that he feared for his life going back because he doesn’t want to be killed.
·He does not consider he will have protection from the New Zealand authorities who provide ‘unreliable support’ and ‘despite their best efforts people in the community are still known for getting harmed and killed’.
He did not submit any documents to the Department in support of his application and was not interviewed.
The delegate’s decision
The delegate found the applicant’s claims that he is unable to return to his country because he fears general gang and criminal violence did not relate to any of the reasons in
s 5J(1)(a), and there was no other information to suggest that he would be subject to harm on his return to New Zealand for one or more of those reasons. As such, the delegate was not satisfied the applicant had a well-founded fear of persecution as he did not fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
The delegate noted country information suggesting New Zealand’s principal piece of legislation dealing with the punishment of criminal offences is the Crimes Act 1961 (New Zealand). This legislation proscribes a range of offences, including offences feared by the applicant such as assault and murder, and lists punishments relevant to these offences. The delegate found there was no information before them indicating that this legislation is drafted in a manner that is persecutory against any persons within New Zealand, or that it is applied in a discriminatory manner.
The delegate considered information contained in the 2021 Country Security Report for New Zealand, published on 23 September 2021, the US Department of State’s Overseas Security Advisory Council (OSAC) regarding the New Zealand Police and information from the US Department of State reports which reported that the New Zealand Police, under the Minister of Police, are responsible for internal security, and the armed forces, under the Ministry of Defence, are responsible for external security and that civilian authorities maintained effective control over the security forces and that members of the security forces did not commit any significant abuses. The delegate noted that it was reported that New Zealand law provides for an independent judiciary, and that the government respected judicial independence and impartiality and that the law provides for criminal penalties for corruption by officials and that the government generally implemented the law effectively.
The delegate noted country information which indicates that New Zealand has a Witness Protection Programme available to witnesses who give evidence against gang members and other serious criminals. The programme monitors these people’s welfare and if required helps them create new identities. As an example of the New Zealand authorities’ actions against bikie gang members, in June 2013 the president of Central Hawke’s Bay’s Mongrel Mob chapter was jailed for eight years for an attack on another member of the gang. A further member of the same gang was sentenced to four years’ prison for being an accessory after the fact.
In August 2013, police conducted Operation Maggies across the greater Auckland area, which led to 18 people linked to the Mangu Kaha chapter of the Black Power gang facing charges In December 2019, the Sydney Morning Herald reported that New Zealand police were involved in a taskforce with Australian and Fijian police with the aim of countering drug trafficking and associated taskforces in 2019.
Having considered the country information, the delegate was satisfied that the protection provided by the New Zealand State consists of appropriate criminal laws, a reasonably effective police force and an impartial judiciary. The delegate was satisfied that this protection is durable and that the New Zealand State is both willing and able to protect the applicant. The delegate found there was no information before it which would lead them to accept the New Zealand State would withhold its protection from the applicant.
The delegate was satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm as outlined in s 36(2B)(b). Therefore, there was taken not to be a real risk that the applicant will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
Review application
On 6 December 2023, the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant attended a hearing before the Tribunal on 10 January 2024 to give evidence and make submissions in support of the review application. Further hearings were held on 18 March 2024 and 26 March 2024 following the submission of post-hearing information discussed further below.
The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearing. This information and the applicant’s oral evidence to the Tribunal at the hearing are discussed further below.
Prior to the hearing the applicant submitted the following documents:
·NZ Herald, ‘Death party teens held in custody’, 30 Jun 2000.
·NZ Herald, ‘Albany bus station killing: 16-year-old accused of murdering Epapara Poutapu battling to keep name secret’, 30 Jun 2000.
·Sydney Morning Herald, article about the shooting at a Christchurch Mosque – undated.
That material and the applicant’s claims were discussed at the first hearing. The Tribunal allowed the applicant additional time following that hearing to submit further information in support of his application.
Following the hearing the applicant submitted the following documents to the Tribunal:
·Additional statements prepared in support of the application for protection:
o   Statement from the review applicant – undated.
o   Statement from applicant’s cousin [Cousin A] – 12 Jan 2024.
o   Statement from applicant’s cousin – [Cousin B] – undated.
o   Statement from [Relative B], applicant’s cousin – undated.
·Letter from Department of Immigration and Border Protection (DIBP) with questionnaire – 4 Jul 2019.
·Applicant’s response to DIBP questionnaire – 4 Jul 2019.
·Country information articles
o   Extract from report “Bottom lines for Pacific Peoples” – Te Aorekerkura – undated.
o   Report from NZ Ministry of Health – Racial discrimination and New Zealand Health Survey – 29 Jun 2023.
o   Online article – The Journey for Pacific Peoples – undated.
o   Report from Pacific Health Dialog – Towards a NZ-born Samoan identity: some reflections on ‘labels’ – undated.
o   Report “The pervasive effects of racism: Experiences of racial discrimination in New Zealand over time and associations with multiple health domains” – undated.
o   Report – New Zealand Productivity Commission – Colonisation, Racism and Wellbeing – 9 Jun 2022.
o   Report – Youth2000 Survey Series – Negotiating Multiple Identities: Intersecting Identities among Māori, Pacific, Rainbow and Disabled Young People – undated.
o   Report – Australia & New Zealand journal of Psychiatry – Impact of the “Like Minds, Like Mine” anti-stigma and discrimination campaign in New Zealand on anticipated and experienced discrimination – Jun 2015.
o   Report – Race, racism and everyday communication in Aotearoa New Zealand – 2014.
o   Report – New Zealand Council for Educational Research – A rapid review of racism in schools: Working paper – 2020.
o   Report – Statistics New Zealand – Working together: Racial discrimination in New Zealand – Sep 2012.
o   Report – Macquarie University Sydney – “Unsettling” the Christchurch Massacre Foregrounding Settler Colonialism in Studies of Islamophobia – 2021.
o   Report – New Zealand’s Hui on Countering Terrorism and Violent Extremism - Jun 2021.
o   Report – New Zealand State Services Commission – All About the Treaty – 2005.
o   Academic paper – Victoria University of Wellington – Patching up the differences: an exploration into Whanganui gang identity – Jan 2021.
o   Academic paper – Victoria University of Wellington – Silencing and institutional racism in settler-colonial education – 2018.
o   Sara Salman ‘Countering the Threat of Terror: Lessons from the Global and Local Context’ , June 2021, Conference paper.
o   Kaswar Ali, ‘“Unsettling” the Christchurch Massacre Foregrounding Settler Colonialism in Studies of Islamophobia’, Journal of the Contemporary Study of Islam, Volume 2, Issue 2, 2021.
o   News articles and editorials from the New Zealand Herald website:
§Brutal violence: Rebels gang members cause chaos in Coromandel - 20 Sep 2023.
§Innocent father bashed outside supermarket in ‘shocking’ racist unprovoked North Shore assault – 25 Jul 2022.
§The Front Page: Guns rage and racism – Has NZ become an angry nation? – 1 Aug 2022.
§‘Blatant racism’: Pacific Island workers abused on Devonport street – 3 Feb 2021.
§Manurewa shooting: Single gunshot killed one teen, left another fighting for life in unsolved attack – 10 Jan 2024.
§Auckland home invasion: Men shot point blank in Manurewa, one escapes under gang gunfire – 26 Nov 2023.
§“Victim” in attack story turns out to be newspaper’s owner – 22 Aug 2009.
§Racist taunts at Devonport beach shocks Māori family – 2 Feb 2021.
§“I don’t feel safe in my country”: Teenagers bottled in racist attack at North Shore park – 12 Mar 2020.
§Prison for man who shot three people in Auckland CBD, including Jay-Jay Feeney’s brother – 18 Dec 2023.
§Auckland gang warfare – city sees 109 reported gun crimes in a single month – 19 Jul 2022.
·Statements of support provided in the context of the applicant’s request for revocation of his visa cancellation in prior proceedings:
o   [Mother A], the applicant’s mother – 5 Aug 2020.
o   [Aunt A], applicant’s aunt – 22 Jul 2020.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
o   [Name], applicant’s friend – undated.
·Screenshots of log of [Agency 1] meetings attended by the applicant, from 10 Oct 2022 to 1 May 2023 and certificates of Course Completion for a range of education, rehabilitation and self-improvement courses undertaken by the applicant.
As it was not clear how some of this material related to the application for protection or which of the statements had been prepared in support of the application for protection, the Tribunal invited the applicant to a further hearing by Teams on 18 March 2024. At that hearing the Tribunal invited the applicant to explain the relevance of the material submitted and the findings the applicant was asking the Tribunal to make with respect to the information. The applicant indicated that three of the statements had been prepared in support of the application for protection – those from [Cousin A], [Cousin B] and [Relative B].
The other statements had been prepared either in the context of the cancellation proceedings or the applicant’s request for Ministerial intervention. The Tribunal has reviewed those statements which support the applicant remaining in Australia and address some of the challenges he may face in New Zealand but notes, as discussed with the applicant at the hearing, that they do not directly address the matters raised as his claims for protection. The Tribunal accepted the earlier statements demonstrated support for the applicant in the community including the witnesses’ support for him remaining in Australia, his good character, capacity for rehabilitation and connection to Australia and the difficulty he may face if he was removed and required to start-over in New Zealand.
At that hearing the Tribunal indicated it wished to talk to the three witnesses who provided the current statements. Email addresses had been provided with the statements but no telephone contacts. The applicant told the Tribunal he did not have contact numbers of the witnesses but usually communicated with them on [social media]. The Tribunal Registry reached out via email to the witnesses. [Cousin A] responded on 18 March 2024 providing a telephone number, however, the Tribunal was unable to contact him at that hearing and the hearing was adjourned to another day to enable follow up with the witnesses. That further hearing on 20 March 2024 was postponed as two of the witnesses had not responded to outreach and [Cousin A] had responded by email on 19 March 2024 to the request to give evidence before the Tribunal:
I acknowledge that this correspondence pertains to my cousin, [the applicant]. Regrettably, due to work commitments this week, I am unable to find time for a phone conversation.
However, I want to assure you that everything stated in the letter I wrote on my cousin's behalf is true and accurately reflects his situation. [The applicant] is indeed facing significant challenges integrating into the community, primarily due to the presence of local gangs and the prevalence of hate crimes targeting individuals of our nationality who are not native to certain areas in New Zealand.
A follow-up email from the Tribunal was sent on the same date, offering to schedule a hearing outside New Zealand business hours to accommodate the witness and asking for his available times. The Tribunal did not receive any response to that correspondence. The other two witnesses did not respond to the Tribunal’s outreach and the applicant did not provide any alternate contact details for those witnesses prior to the resumed hearing on 26 March 2024.
The adjourned hearing was held on 26 March 2024.
At that hearing the Tribunal noted the unavailability of the witnesses and invited the applicant to make any further submissions or provide any further evidence. The Tribunal also put to the applicant information under s 424AA which would be the reason or part of the reason for affirming the decision under review. The Tribunal explained why the information was relevant and asked if the applicant wished to comment on or respond to this information, noting the applicant could seek further time if required.
The particulars of the information were, firstly:
·In the context of the cancellation of the applicant’s visa in 2019 and the review before the Tribunal in 2020 information indicates that the applicant did not raise any claims to fear harm on return to New Zealand due to gang violence or fears arising from the Christchurch massacre for any of the reasons now claimed; and
·The Tribunal in that case found that non-refoulment obligations did not arise with respect to the applicant’s return to New Zealand.
The Tribunal noted this information was relevant because the fact the applicant did not raise claims to fear harm on the basis of gang violence or the Christchurch massacre in the context of consideration of the cancellation of his visa may raise concerns regarding the credibility of those claims and may lead the Tribunal not to accept them. This would be the reason or part of the reason for affirming the decision under review.

Further information detailed was:
·Tribunal records indicate that attempts to contact two of the witnesses who offered statements in support for the protection visa application, [Cousin B] and [Relative B], have been unsuccessful and that the other, [Cousin A], indicated he was not available to give evidence. Offers to provide an alternate hearing time have not been responded to.
The Tribunal noted this information was relevant because the fact that the Tribunal had been unable to contact or interview witnesses about their unsigned statements may lead to the Tribunal placing less weight on those statements or not accepting them. This may cause the Tribunal to have concerns about the applicant’s claims for protection which were in part relying on those statements. This would be the reason or part of the reason for the Tribunal affirming the decision under review.
In response the applicant said that the cancellation proceedings focussed on his character and rehabilitation and that is why he didn’t bring up issues of protection. Further he said that the witnesses might have been too busy to give evidence or pick up the phone.
The evidence is considered further below.
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 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.
The Tribunal notes that DFAT has not issued a country information report with respect to New Zealand.
Credibility assessments
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[1] The mere fact that a person claims to fear persecution for a particular 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.
[1] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ.
The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]
[2] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
CONSIDERATION
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Country of reference
The applicant travelled to Australia on a New Zealand passport and claims to be a New Zealand citizen. The delegate accepted his claimed nationality and the Tribunal accepts the applicant is a New Zealand citizen and has assessed his protection claims accordingly.
The Tribunal finds that the applicant is a citizen of New Zealand, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Claims and evidence
The applicant told the Tribunal he was born in New Zealand in [specified year]. His parents were born in [Country 1] but were living in New Zealand when he was born and are New Zealand citizens. He has not been to [Country 1] and does not know if he has any right to enter or reside there. He described his ethnicity as [Country 1] Community which he said was ‘separate to other [Islanders]’. He said he had aunties and uncles from his mother and father’s side who were living in Auckland. He said he came to Australia in 1999 with his parents, siblings and one of his grandparents. He has [specified family members] in Australia and [others specified] in New Zealand.
He said [one] brother [lives] in New Zealand but he has not been in contact with him since about 2004. He said he had [another sibling] in New Zealand but he had also not been in contact with [them] since 2004. [Specified family members] live in Australia but he is not sure where. [Another member] lives with [their] parents in Victoria. He remains in contact with his parents.
He has been in detention since 2019 following the cancellation of his visa. He told the Tribunal he was under the influence of drugs and [shoplifted] and his visa got cancelled. He said he was sentenced to [period] for that offence but that he had been sentenced previously to three years for earlier offending.
He went to school in Australia, finishing at the end of [grade] and did a [specified qualification] and [specified jobs].
The Tribunal asked him about why he feared returning to New Zealand and he said he wasn’t really raised in New Zealand and the native New Zealanders, the Māori, have a problem with the New Zealand community. He said his [relative] was targeted by some people from New Zealand. He said in 1999 or 2000 his [Relative A] was targeted. He offered a news article reporting on his [Relative A’s] death. The Tribunal noted the article didn’t mention his [relative] was targeted because he was [from Country 1] and he said that people have their own communities and they don’t really get along, communities have clashes with other island communities.
He said that he would be randomly targeted as a threat to the community. The Tribunal asked what he meant by that and he said that the article about the Albany bus station killing showed how it was for people deported back to New Zealand. He said they are targeted as outcasts. He said some of the people deported back get back into ‘their old ways’ and, some people try and do good for themselves. He said the article was a demonstration of what happened when those who return after being deported try to do their own thing.
The Tribunal asked why he thought the person referred to in the article had been targeted as someone returned to New Zealand after character cancellation (under s 501 of the Act) and he said that ‘maybe they saw him as a 501, thinking he was better then them.’ He said that when you return people might notice how you are talking and if he went back to New Zealand people would laugh at his accent. He said people will ‘catch up’ with how you talk, and the way you dress.
The Tribunal asked about his [Relative A’s] death and what happened with the people who attacked his [this relative] and he said he was attacked because of his race or what he was wearing. The Tribunal noted the article didn’t mention gang membership and he said he was referring to gangs targeting his [Relative A] because they were in a gang. He said the people who did that to his [Relative A] were targeting him by nature of where he is from, he looks different to the people in that gang and has a different background. The Tribunal asked if those responsible for his [Relative A’s] death had been convicted and he said he wasn’t sure.
The Tribunal asked if there had been any threats against the applicant or family members linked to his [Relative A’s] death and he said no. The Tribunal put to the applicant that the fact the attack had happened many years prior and the family had not faced further threats suggested that it may have been an issue specifically with his [Relative A], or a random event, and he said there could be more involved.
The Tribunal notes he said he had sought a review of the decision not to revoke the cancellation of his visa and asked if he had raised his claims to fear harm in the context of that review and he said at the time he was under pressure and he did the best he could. He said maybe he should have raised it though he didn’t think too quickly at the time.
The Tribunal mentioned the convention grounds expressed in s 5J and noted it did not appear the harm he said he feared from gangs would be directed at him for any of the reasons mentioned and he said the points he raised have nothing to do with being a refugee.
The Tribunal asked what they related to and he said they were to do with gang violence and said there was ‘a big chance’ he might get involved with disputes with the gangs in New Zealand.
The Tribunal asked why they would target him and he said because he is not a native New Zealander and they would not accept the way he looks and conducts himself. He said he could be ‘randomly walking around and could be attacked’. He said that violence was a way of life in New Zealand. The Tribunal asked whether his family members could assist him and he said that they don’t have the time. He said that if he was to return to New Zealand he wouldn’t have the support he needed and he needed to get home to his family here because they need him.
The Tribunal notes the country information and his own circumstances suggested he would have financial and other supports in New Zealand, including as a returnee from Australia.[5] He said he understood that but it had nothing to do with what the community is. He said that is the good side of things but there is also a bad side.
[5] Get publicly-funded health services | New Zealand Government ( undated. Moving to New Zealand – Work and Income
He said the community don’t care what you are going through and he had heard about a lot of people getting into mischief. He said he would try and integrate into the community.
He said he had previously had a drug problem but that stopped five years ago. He provided evidence of rehabilitation programs directed towards drug addiction.
He said he was also fearful because of the Christchurch massacre and that he wouldn’t want that to happen to him. He said that man was targeting the Muslim community and that could happen to his community.
The Tribunal noted country information suggesting New Zealand had an effective police force that would not withhold protection from him for any reason and he said that despite their best efforts things happen like when randomly standing at a bus stop and being targeted.
The Tribunal also noted that the complementary protection criteria required, among other things, that a person would suffer significant harm as a necessary and foreseeable consequence of returning from New Zealand to Australia. However, it did not appear on the information before the Tribunal that there was a real risk the applicant would suffer such harm for the reasons he claimed. The Tribunal noted that while it was understandable that people may wish to stay in a country where they felt they had better economic prospects, that would not ordinarily give rise to a claim for protection. The Tribunal noted the protection visa criteria were directed to protecting people from certain kinds of harm and it was difficult to see how the types of harm he feared would come within those criteria.
Relevant country information
As noted above, DFAT does not produce a report prepared expressly for protection status determination purposes with respect to New Zealand. The delegate’s decision contained a summary of country information including from the US State Department. The Tribunal has had regard to the information contained in the delegate’s decision and more recent information from similar sources.[6] The Tribunal has also considered articles and reports submitted by the applicant in support of the application for review.
[6] OSAC Country Security Report New Zealand, OSAC, 23 September 2021; and more recently OSAC Country Security Report New Zealand, OSAC, 28 August 2023
The Tribunal put to the applicant the country information in the delegate’s decision which the Tribunal noted was consistent with current information before the Tribunal including in relation to New Zealand and general information available regarding circumstances in New Zealand.
New Zealand’s population was estimated to have surpassed five million by June 2022. Until recently, most immigrants had arrived from the United Kingdom, Australia and northern Europe. According to the DFAT Country Brief on New Zealand ‘A growing number of migrants now come from the Pacific Island countries, particularly Samoa, Cook Islands and Niue, and from Asia.’[7]
[7] DFAT, New Zealand Country Brief, >
Credible country information suggests that human rights and the rule of law are generally respected in New Zealand.[8] There are no reports of arbitrary or unlawful killings, politically motivated disappearances, political prisoners or detainees. Torture and other cruel, inhuman, or degrading treatment or punishment is prohibited by law and government officials do not employ such practices. Freedom of religion is protected by law and respected in practice. Discrimination based on race is legally prohibited and the government enforces the law effectively.[9]
[8] OSAC Country Security Report New Zealand, OSAC, 28 August 2023
[9] 2022 Country Reports on Human Rights Practices: New Zealand, US Department of State
According to the US Department of State Human Rights Report:[10]
Pacific Islanders were 8 percent of the population in the most recent national census (2018). They experienced some societal discrimination and had higher-than-average rates of unemployment and among the lowest labor force participation of any ethnic group..Several government ministries, including the Ministry for Pacific Peoples and the Ministry of Health, had programs to identify gaps in delivery of government services to Pacific Islanders and to promote their education, employment, entrepreneurship, culture, languages, and identity.
[10] 2022 Country Reports on Human Rights Practices: New Zealand, US Department of State
This was consistent with country information submitted by the applicant suggesting Pacific Islanders (together with Māori and Asian New Zealanders) suffer higher rates of socio-economic disadvantage and discrimination but also that there are a range of government and non-government institutions working on reducing discrimination and providing greater opportunities for people of Pacific Islander heritage in New Zealand.[11] While the applicant referred in oral evidence to [specified countries]. the Tribunal took references to Pacific Islanders in the material he submitted to include those groups (who were not specifically membered). Individuals and organisations may seek civil judicial remedies for human rights violations, including access to the Human Rights Review Tribunal. Administrative remedies for alleged wrongs are also available through the Human Rights Commission and the Office of Human Rights Proceedings.[12]
[11] See for example: Report from NZ Ministry of Health - Racial discrimination and New Zealand Health Survey – 29 Jun 2023.
[12] 2022 Country Reports on Human Rights Practices: New Zealand, US Department of State
New Zealand has an independent police force and judiciary and respects the rule of law. The government investigates, prosecutes, and punishes allegations of official abuse, including by police, with no reported cases of impunity. Civilian authorities throughout the New Zealand maintain effective control over the security forces. Arbitrary arrest and detention are prohibited, and the government observes these prohibitions. The right to a fair trial is protected by law, and an independent judiciary generally enforces this right.[13]
[13] 2022 Country Reports on Human Rights Practices: New Zealand, US Department of State; Freedom House, Freedom in the World 2022: New Zealand >
There was no country information before the Tribunal suggesting that someone in the applicant’s circumstances would be discriminated against or persecuted by employment assistance agencies, social support service providers or any other government agency on the basis of his ethnicity, religion, marital status or health.

The New Zealand government provides social security benefits for New Zealanders for old age, disability and survivors, sickness and maternity, work injury, and unemployment, and family allowances. Additionally, although there is private health care, since the Social Security 1938, the government has had a fundamental role in providing for New Zealanders’ health care.[14] In addition, there are monitor arrangements which apply to some returnees who have been the subject of visa cancellation in Australia and supports provided to link with government support organisations.[15] When the Tribunal discussed this information with the applicant at the hearing he said from what he knew returnees don’t get much support and all the guys who have returned end up being locked up or joined gangs.
[14] Get publicly-funded health services | New Zealand Government ( NZ Herald – Death party teens held in custody 30 Jun 2000; NZ Herald – Albany bus station killing: 16-year-old accused of murdering Epapara Poutapu battling to keep name secret – 16 November 2023 undated.>
In light of the applicant’s claims regarding medical complaints or conditions the Tribunal has had regard to country information regarding to the health care that would be available to the applicant in New Zealand. As discussed with the applicant at the hearing, New Zealand has a comprehensive health, education and social security network.
Country information indicates the applicant will be able to register and access health care and social security support if he returns to New Zealand. Social security entitlements include provisions for medical assistance, pension and related services, parental, unemployment and disability benefits.[16]
[16] Moving to New Zealand – Work and Income; Get publicly-funded health services | New Zealand Government (>
There was no country information before the Tribunal suggesting that the applicant would be persecuted or discriminated against on the basis of his physical or mental health needs. Nor was there any evidence before the Tribunal that the applicant persecuted or discriminated against on the basis of his prior history of drug use or on the basis of a prospective return to drug use in New Zealand.
With respect to the applicant’s claims regarding risks from gang violence, the applicant submitted articles related to incidence of gang violence in New Zealand,[17] including one related to his [Relative A] in 2000.[18] Those reports document complaints about gang violence in specific parts of New Zealand, what is reported as a racially motivated attack against an Asian New Zealander, an attack on a person in a bus stop who had returned to New Zealand following cancellation of their Australian visa under s 501, a person ‘screaming racist abuse from a car’ at Pacific Islander works in Auckland, a shooting on New Year’s Eve and police probing possible gang links, a home invasion in Manurewa, a story about a report of a police assault on a Chinese man who turned out to be the owner of the paper who reported the assault and who was arrested with respect to a road rage incident, a racist taunt against a Māori family, a Korean who was injured in an attack where he was ‘bottled’ which he claimed was racially motivated, the sentencing of a man who shot three people in a gang-related attack in Auckland, a report on 109 reported gun crimes in Auckland in one month and reports of government plans to ‘crack down on gang violence’ (including firearms prohibition orders and strengthening of criminal proceeds recovery laws).[19]
[17] NZ Herald – Albany bus station killing: 16-year-old accused of murdering Epapara Poutapu battling to keep name secret – 16 November 2023; Brutal violence: Rebels gang members cause chaos in Coromandel – 20 Sep 2023; Innocent father bashed outside supermarket in ‘shocking’ racist unprovoked North Shore assault – 25 Jul 2022; The Front Page: Guns rage and racism – Has NZ become an angry nation? – 1 Aug 2022 (commenting on the alleged racially motivated bashing on the North Shore); ‘Blatant racism’: Pacific Island workers abused on Devonport street’ – 3 Feb 2021; Manurewa shooting: Single gunshot killed one teen, left another fighting for life in unsolved attack – 10 Jan 2024; Auckland home invasion: Men shot point blank in Manurewa, one escapes under gang gunfire – 26 Nov 2023; ‘Victim’ in attack story turns out to be newspaper’s owner – 22 Aug 2009; Racist taunt at Devonport beach shocks Māori family – 2 Feb 2021; “I don’t feel safe in my country”: Teenagers bottled in racist attack at North Shore park – 12 Mar 2020; Prison for man who shot three people in Auckland CBD, including Jay-Jay Feeney’s brother – 18 Dec 2023; Auckland gang warfare – city sees 109 reported gun crimes in a single month – 19 Jul 2022.
[18] NZ Herald, ‘Death party teens held in custody’ – 30 Jun 2000.
[19] See also OSAC Country Security Report New Zealand, OSAC, 28 August 2023.
At the second hearing the Tribunal told the Tribunal these articles showed the sort of trouble he could get himself into in New Zealand, a country he hadn’t lived in for a long time. When asked what he meant by getting himself into trouble, the applicant said from what he knew, especially for a person being deported from Australia, there are a lot of gangs in New Zealand. When asked why the gangs would be interested in him he said they were very territorial, and by the looks of him they would know he wasn’t from the area and was not associated with any gangs or anything. He said the community have a ‘bit of a problem with the 501 deportees that get deported back to New Zealand.’ He said they would be able to tell by his accent and the way he conducts himself. He said he would be out of place and they would question him and they would approach him and ask him where he is from. He said that at the end of the day, he will be walking alone randomly around the area and he will be attacked. He said the majority of the population are in gangs.
Consistent with country information contained in the delegate’s decision, country information suggests crime rates in New Zealand are low. The OSAC reports that recently in the New Zealand media much attention has been paid to increasing levels of property and violent crime. Police sources are cautious to draw conclusions, however, most if not all admit that reports of crimes are on the rise. More and more crimes involving firearms are being reported and local police have enacted new laws to help combat gang violence. The New Zealand Police force 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 force trains to a Western standard and is actively involved in crime prevention and response. The force has specialised units to deal with armed offenders and hostage situations. [20]
[20] OSAC Country Security Report New Zealand, OSAC, 28 August 2023.
When the Tribunal discussed with the applicant the country information contained in the delegate’s report regarding the protections afforded by New Zealand police, the applicant stated that most of the police officers in New Zealand have transferred to Australia and the majority of the gangs in New Zealand outnumber the police in New Zealand. He said police they may do a good job but that despite the police’s best efforts questioned ‘will they be there on time?’
The applicant also submitted articles and academic papers relating to the Christchurch mosque shooting in which 51 people were killed. Those articles report the attack as one carried out by a lone gunman. The academic papers examine the incident in the context of colonialism and Islamophobia and recommendations for countering lone wolf white supremacist terrorism.
Findings
The Tribunal has carefully considered the claims made by the applicant.
As noted above, the applicant expresses a general anxiety about returning to New Zealand. The applicant claims to fear harm from gang violence in New Zealand and from religious extremists, on the basis of the Christchurch mosque attack. The applicant also claimed to fear harm as a returnee from Australia deported as a result of a s 501 visa cancellation on character grounds and discrimination on the basis of his race as a descendant of Pacific Islanders, specifically [Country 1] peoples. He claims that he would suffer on return to New Zealand including that he would struggle to establish himself, his mental health would suffer and he would be isolated. He did not raise a concern in evidence that he would use drugs and provided evidence that he had undertaken drug rehabilitation and was drug free. He did not raise any concerns in evidence that he would suffer ‘drug psychosis’.
The Tribunal notes it spent significant time exploring the applicant’s circumstances and claims through his evidence. The Tribunal went to significant lengths to explain the limitations of the criteria for a protection visa and to understand any basis on which the applicant feared or may face a real chance or real risk of harm on return to New Zealand.
It is clear the applicant is concerned about returning to New Zealand due to a lack of familiarity with the country and the fact his family and support network is largely in Australia. At the final hearing, when asked what he feared on return to New Zealand, the applicant said that there was a big problem in New Zealand and given his circumstances of having been living in Australia for a long time it was not safe for him to go back there. He stated the government was ‘not much help at the moment’ because they didn’t understand the gang culture was entrenched. When asked why he would be personally at risk from the general risk of violence gangs presented to the community he said it was because he had spent so much time in Australia and people will look at him differently.
As put to the applicant at the hearing, the Tribunal was concerned that the applicant’s claims to fear harm on return to New Zealand due to gang violence, the Christchurch mosque attack or his Pacific Islander heritage were not raised in the context of the cancellation of his visa. This caused the Tribunal to have concerns regarding the genuineness of his claim to fear harm on return to New Zealand for the reasons claimed. While the applicant claimed he did not raise these issues in the context of those applications because they were focussed on other matters the Tribunal considers that if the applicant was genuinely fearful that there was a real chance he would be seriously harmed for these reasons he would have raised those claims earlier in the context of consideration of the cancellation of his visa and his removal to New Zealand. Accordingly this caused the Tribunal to have concerns about the genuineness of those claims.
Having considered all the applicant’s claims and evidence the Tribunal finds that the applicant has failed to demonstrate that there was any real chance he would suffer serious harm on return to New Zealand or that he faces a real risk of significant harm as a necessary and foreseeable consequence of his return to New Zealand now or in the reasonably foreseeable future for any of the reasons claimed.
Claims associated with the applicant’s [Country 1] or Pacific Islander background or ethnicity or family background
The applicant made various claims linked to his identity as a [Country 1] and/or [Pacific] Islander.
While the Tribunal accepts that the applicant’s [Relative A] was killed at a party in 2000 there was no reference in the medica reports of that attack to suggest it was targeted at his [Relative A] because he was a Pacific Islander or [from Country 1]. There was no evidence or submission that authorities had not responded to that attack to bring the perpetrators to justice, including for any reason which was racially motivated. Nor was there any evidence that the applicant’s family had been targeted for this reason, or for any reason associated with his [Relative A’s] death in the more than 20 years since the attack occurred. The unsigned statement from [Relative B] indicated that:
We have experienced a tragic event in the past that has profoundly affected our family. The death of my [family member], [Relative A], has left us in a state of grief and disbelief. The circumstances surrounding his passing were deeply troubling, as they were linked to the escalating racial tensions in our community here in Auckland, New Zealand. The aftermath of these events have put additional strain on myself and my family, The potential separation from [the applicant’s] family and the uncertainties ahead have added to the emotional burden we are already carrying…… Given the circumstances surrounding my [family member's] tragic death and the racially charged environment that contributed to it, I believe that [the applicant’s] safety are at great risk if he's deported to New Zealand.
The Tribunal notes attempts to contact [Relative B] were unsuccessful and the applicant did not provide telephone contact details for him. As such the Tribunal was unable to speak to [Relative B]. Giving the applicant the benefit of the doubt, the Tribunal accepts the applicant’s [Relative B] wrote the letter. The Tribunal also accepts [Relative A], whose death was reported in the article was the applicant’s [relative]. However, there was nothing in the material to support the applicant’s assertion that the attack on [Relative B] was racially motivated or that any of those related to him face a real chance or real risk of harm because of the attack 20 years ago or for any other reason associated with his [Relative A’s] death. The Tribunal does not accept that they do.
[Cousin B], who also did not respond to outreach, notes the difficulties the applicant would have adapting to a ‘new and potentially hostile’ environment. [Cousin A], who indicated he was not available to give evidence at the hearing, notes the applicant:
will face severe challenges in New Zealand due to racism and discrimination, which will be a dangerous environment for him. These experiences have significantly impacted the well-being of me and my family's safety. I have witnessed the distressing effects of these issues in New Zealand. Given the circumstances, I firmly believe that it is too perilous for [the applicant] to return to New Zealand.
He later stated that the applicant faced a risk of ‘hate crimes’ on the basis of the family’s ethnic background. As the Tribunal was unable to speak to these witnesses it was unable to clarify the nature of the harm being identified with respect to the applicant’s return. Based on the statements and the applicant’s evidence, the Tribunal infers the witnesses were raising a similar concern to that raised by the applicant, that due to general violence in the community from gangs and because of either his Pacific Islander or [Country 1] background or the fact he had been absent from New Zealand for so long, he would be at risk of harm on return to New Zealand.
In general terms, the applicant raised concerns that Pacific Islanders or [people from Country 1] were at risk of discrimination in New Zealand. Country information suggests that discrimination and economic disadvantage were an issue of concern for Pacific Islander communities but that both government and non-government organisations were attempting to address discrimination and disadvantage for Pacific Islanders and for other minority groups in the community. Country information suggests that while there is discrimination impacting a range of groups, Pacific Islanders are afforded the same protections under the law and the same access to government supports as other New Zealanders. Further, while the articles submitted in support of the applicant’s claims document several instances of violence which were claimed to have been racially motivated, those instances related to other ethnic groups. In any event, in the Tribunal’s view the individual instances of violence did not support a finding that the applicant faced a real chance of harm on return to New Zealand for any reason associated with his race or ethnicity, Pacific Islander background or [Country 1] heritage.
Fear of gang violence
The applicant claimed to be at risk of harm from gangs in New Zealand. The Tribunal explored with him the reasons for these fears. The applicant repeatedly claimed he would be at risk from gangs because he would be a returnee from Australia. This would place him at risk both because it would mean he would stand out as a non-local through his accent and appearance, because people didn’t like returnees and because he would be unfamiliar with New Zealand and may inadvertently get into trouble. He was also fearful because of what had happened to his [Relative A] and because of reports of gang violence in the media.
While his application mentioned a fear due to conflict his family had with gangs, he did not claim any members of his family were involved with gangs or that he had any gang affiliation in Australia or New Zealand which might place him at risk. He mentioned his [Relative A] had been killed because he was a Pacific Islander, he did not claim his [Relative A] was killed due to a gang association but rather that a gang killed his [Relative A] because of his Pacific Islander background.
As the applicant did not claim any personal profile or connection with gangs as the basis for his claim to be at risk from them, the Tribunal understood the applicant to claim he was at risk from ‘random’ or generalised gang violence and that his risk was elevated due to his Pacific Islander heritage and status as a returnee/criminal deportee from Australia. The Tribunal notes he said these were things which could be known about him on the basis of his appearance or accent. No evidence was offered to support the contention the applicant would be so identified and the Tribunal does not accept that he would be identified as a returnee from Australia on this basis though it does accept, giving the applicant the benefit of the doubt, that he may be identified as a Pacific Islander though his appearance or other cultural features.
As noted earlier, while there was country information to suggest that gang violence is an issue in New Zealand the Tribunal was not satisfied that information established there was a real chance of the applicant being seriously or significantly harmed by gangs or gang violence in New Zealand. This includes for any reasons associated with being a returnee from Australia, a Pacific Islander or a s 501 deportee or any combination of these.
Further and in any event, the Tribunal finds that to the extent gang violence presents a risk to the New Zealand population and noting there was no evidence the applicant was connected with gangs in New Zealand, the Tribunal considers the apparatus of the New Zealand legal system and its law enforcement agencies offer effective protection for such harm. The Tribunal finds there is no real chance the applicant will be seriously or significantly harmed by gangs on return to New Zealand. Further the Tribunal considers the New Zealand authorities are willing and able to provide effective protection to the applicant from such harm.
The Tribunal finds there is no real chance the applicant will be seriously harmed by gangs on the basis of his Pacific Islander or [Country 1] background, because he is a returnee from Australia or 501 deportee or for any other reason. The applicant does not have a well-founded fear of persecution on this basis on return to New Zealand now or in the reasonably foreseeable future.
Claims associated with the Christchurch attack or the applicant’s Mormon religion

100. The applicant also claimed to fear harm due to the Christchurch mosque attack. The Tribunal notes the applicant is not Muslim. He is a member of The Church of Jesus Christ of Latter-day Saints (the Mormons). No evidence was offered to support a claim that members of the Mormon Church were at risk of extremist violence in New Zealand of the type experienced in the Christchurch attack or that any other group in the community to which the applicant belonged (or would be imputed to belong to) would be at risk from such harm.
101. Country information suggests the threat of terrorism in New Zealand is low and that New Zealand is vulnerable to terrorism in similar ways as other countries ‘through the openness of the internet, international travel movements, and a globally heightened number of disconnected individuals susceptible to extremist messaging and ideology.’[21]
[21] OSAC Country Security Report New Zealand, Overseas Security Advisory, OSAC, 28 August 2023.
102. In any event, that was an attack by a lone extremist who was apprehended and is being dealt with within the New Zealand justice system. The applicant provided no evidence to support a claim that he was at risk from extremist violence of the type seen in the Christchurch massacre, or that there is any real chance of such violence to members of the New Zealand community now or in the reasonably foreseeable future.
103. The Tribunal finds there is no real chance the applicant will be seriously or significantly harmed on the basis of his religion, or on any basis associated with the attacks on a Muslim mosque in Christchurch in 2019, now or in the reasonably foreseeable future on return to New Zealand.
Claims associated with being a s 501 deportee or returnee
104. The applicant also claimed he would be targeted because he had his visa cancelled under s 501.
105. He pointed to the article regarding the attack on a person who had returned from Australia after having his visa cancelled as evidence that he would be targeted on that basis. As noted earlier and discussed with the applicant at the hearing, the article regarding the attack at the bus stop did not indicate the victim had been attacked because they were a recent returnee who had their visa cancelled under s 501. The article mentioned this as a description of the applicant’s background. There was no information that returnees were targeted for harm on the basis of character cancellations under s 501 or for any other reason associated with return from Australia. There was no country information to suggest there is a real risk or real chance of harm on that basis from unidentified persons including gangs or gang members.
106. Further, there was evidence that returnees are provided with supports to assist their reestablishment and reintegration. While there is evidence returnees who were subject to character cancellations or were convicted of criminal offences in Australia may be subject to supervisory controls under New Zealand law there was no evidence to suggest those rules are administered on a discriminatory basis or that the impact of such laws or orders would amount to serious or significant harm and the applicant did not raise any claims on this basis.
107. The Tribunal accepts that the applicant does not wish to return to New Zealand and that returning may cause him to suffer stress or anxiety. He may also suffer financial disadvantage as he re-establishes himself. However, the Tribunal is satisfied there is government support available to him during this period such that there is no real chance or real risk of harm on this basis including an inability to subsist. Further, the Tribunal is satisfied he would have access to health care and social supports to assist in his reintegration into the New Zealand community.
108. The Tribunal finds on the evidence that the applicant has worked in Australia in a range of occupations. He indicated he has family in New Zealand, including those who provided statements in support of his application to whom he could reach out for emotional or social support, notwithstanding they may be ‘busy with their own lives’ as claimed by the applicant.
109. The Tribunal also finds based on country information and the applicant’s evidence that he would have a range of social and economic support services available to him in New Zealand which would assist with his resettlement and other needs. The Tribunal finds that the applicant would not face a real chance of serious or significant harm due to financial hardship or lack of access to essential services on his return to New Zealand. Likewise, the Tribunal finds there is no real chance or real risk the applicant would be harmed due to being a s 501 deportee or otherwise because he is a returnee from Australia.
Claims associated with mental health or drug dependency
110. As noted above, in the application for protection the applicant claimed returning to New Zealand ‘won’t help with his stress disorder because he has been in immigration detention for five years’ and that his offences in Australia which involved him being under the influence of drugs ‘which caused drug induced sycosis (sic)’ and that ‘he feared for his life going back because he doesn’t want to be killed’.
111. The applicant did not articulate any specific fears regarding his mental health or history of drug use before the Tribunal. However, the Tribunal accepts on the information before it that the applicant has a past history PTSD, has been detained for a significant period of time and had a history of illicit drug use, including in the context of his offending. The Tribunal accepts the applicant is concerned that return to New Zealand will be stressful and negatively impact his mental health. He did not claim that he would be persecuted for an essential and significant reason associated with his mental health and there was no information before the Tribunal to suggest he would be. The Tribunal finds he does not face a real chance of serious harm on this basis.
112. While the applicant did not suggest that his return might lead him to resume use of illicit drugs, the Tribunal accepts there is a risk of such behaviour. However, the Tribunal notes the applicant provided evidence of rehabilitation undertaken in detention for substance use and submitted supporting statements regarding his commitment to rehabilitation.
113. In any event, the applicant did not suggest he would be subject to serious harm for the essential and significant reason of having used illicit drugs in the past or because he may do so in the future and the Tribunal does not accept there is a real chance he would be. Further, country information suggests the applicant would have access to health programs and supports on return should he seek to access assistance in maintaining his commitment to not using drugs in the future and that access to such services would not be withheld from him for any reason, including for any reason arising under s 5J.
PROTECTION ASSESSMENT
Does the applicant meet the refugee criterion?
114. Based on the evidence before it, the Tribunal finds That there is no real risk the applicant will be seriously harmed by unspecified gangs or any other person or group of people in New Zealand for any reason including because he was a returnee from Australia unfamiliar with New Zealand or a returnee the subject of s 501 visa cancellation in Australia or because of his Pacific Islander or [Country 1] background or ethnicity or his mental health or drug use now or in the reasonably foreseeable future.
115. Further and in any event, the Tribunal finds based on credible country information that to the extent there is a risk of harm from gang violence in New Zealnd, protection measures are available from New Zealand authorities which are accessible, durable and include appropriate criminal law, a reasonably effective police force and an impartial judicial system.
116. With respect to the applicants claims related to his Pacific Islander or [Country 1] background or ethnicity the Tribunal finds while there is evidence of discrimination against persons of Pacific Islander background country information suggested such discrimination would not meet the thresholds of serious or significant harm. The Tribunal finds the applicant does not have a well-founded fear of persecution on the basis of his Pacific Islander or [Country 1] background or ethnicity now or in the reasonably foreseeable future.
117. Further and in any event, the Tribunal finds based on credible country information that to the extent there is a risk of harm in New Zealnd due to the applicant’s Pacific Islander or [Country 1] background or ethnicity, protection measures are available from New Zealand authorities which are accessible, durable and include appropriate criminal law, a reasonably effective police force and an impartial judicial system.
118. The Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to New Zealand, he would be seriously harmed for reasons of his religion based on the Christchurch mosque attack or for any other reason associated with his religion are not well-founded.
119. Further and in any event, the Tribunal finds based on credible country information that to the extent there is a risk of harm from religious extremist violence in New Zealnd, protection measures are available from New Zealand authorities which are accessible, durable and include appropriate criminal law, a reasonably effective police force and an impartial judicial system.
120. To the extent the applicant raised claims he would suffer harm in the form of mental health issues from the stress of return, relapse in drug use or difficulties re-establishing himself in New Zealand, the Tribunal finds are a range of supports available to the applicant in New Zealnd to support his return and that there is no real chance of `serious harm on this basis.
121. Considered individually and cumulative, there is nothing to suggest that the applicant would face a well-founded fear of persecution now, or in the reasonably foreseeable future due to on return to New Zealand for any of the reasons claimed on for any reason arising from the material before the Tribunal.
122. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in the Act.
Does the applicant meet the complementary protection criterion?
123. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s.3(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
124. The Tribunal notes that the threshold for the real risk element in the complementary protection criterion at s 36(2)(aa) is the same as that for the real chance test in the refugee criterion at s 36(2)(a) of the Act.[22] That is, the Courts have held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. The Tribunal notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.[23]
[22]MIAC V SZQRB (2013) 210 FCR 505.
[23]SZSKC v MIBP [2014] FCCA 938 (Judge Lloyd-Jones, 16 May 2014) at [71]–[73] and [84].
125. The Tribunal has carefully considered each of the integers of the applicant’s claims to fear harm discussed above with respect to his claims for refugee protection in the context of the complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa) and finds that the applicant’s return to New Zealand does not give rise to a necessary and foreseeable risk of significant harm for the purposes of s.36(2)(aa) of the Act.
126. The applicant claimed he would be at risk of significant harm due to gang violence and religious extremism in New Zealand. For the reasons outlined above, the Tribunal does not accept there is a real risk he would be significantly harmed by gang violence or religious extremist violence in New Zealand. To the extent there is a risk of violence from gangs or religious extremists in New Zealand the Tribunal considers that the protections afforded by the New Zealand state, demonstrated in credible country information, are such as to reduce the risk of significant harm to less than a real risk.
127. Further, to the extent that there is such a risk of generalised violence from criminal gangs or religious extremists, the Tribunal considers this risk is one faced by the population generally and not the applicant personally. While the applicant claimed his Pacific Islander or [Country 1] status, position as a returnee having lived most of his life in Australia, position at a s 501 deportee and religious profile as a Mormon meant the real risk of significant harm from such violence was a risk faced by him personally, the Tribunal does not accept that country information or the evidence offered by the applicant supports a finding that his personal profile carries such a risk.
128. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of his removal to New Zealnd there is a real risk the applicant will suffer significant harm for any of these reasons.
129. The Tribunal has considered the applicant’s evidence that he will suffer emotionally if returned to New Zealand and that his mental health would suffer. The Tribunal accepts the applicant has more limited established social networks in New Zealand than he does in Australia and that he fears being socially isolated in New Zealand because of the time he has spent in Australia and the effects of gang violence. The Tribunal has considered all these factors cumulatively in assessing whether there is a real risk that the applicant would suffer significant harm if he was to return to New Zealand.
130. Country information confirms that New Zealand has safety nets in place to take care of vulnerable members of society when they are in need. This includes support for reintegrating returnees who have been the subject of cancellation proceedings in Australia.
131. The Tribunal accepts the applicant may initially struggle to find suitable employment and accommodation but that supports are available to him including from government authorities. There was also evidence of support from family members in New Zealand. While their capacity to provide financial or practical support might be limited, the Tribunal finds on the basis of their statements that they would provide some social support to the applicant. The Tribunal also finds based on credible country information that the applicant is eligible to access government welfare services while he looks for suitable employment and accommodation.
132. As detailed above, the Tribunal accepts that the act of being removed from Australia may cause him emotional distress and may worsen his ‘stress disorder’. While the applicant did not offer specific evidence relating to mental health issues, the Tribunal notes there was information suggesting that he has previously been diagnosed with PTSD and the Tribunal accepts this may mean he has ongoing support needs with respect to his mental health.
133. As noted above, the Tribunal considers the applicant will have access to mental health services available to New Zealand citizens on return there should he require mental health treatment or support.
134. In GLD v Minister for Home Affairs,[24] the Full Court confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include harm the applicant suffers arising from mental illness where such harm arises by reason of the applicant’s removal to their home country and not due to harm intentionally inflicted on an applicant by ‘others’.[25]
[24] At [88]–[89].
[25] See also FMN17 v MICMSMA [2020] FCA 326.
135. As noted by the Full Court in GLD v Minister for Home Affairs:[26]
[26] [202] FCFCA 2 at [50] per Allsop CJ and Mortimer J.
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.

136. The Federal Court noted that s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’.[27] As detailed above, s 5(1) requires an actual, subjective, intention on the part of a person (in this case New Zealand) to bring about the suffering by their conduct.[28] The Tribunal finds that the applicant’s mental health or connections to Australia are not of themselves grounds for granting complementary protection. Further, the Tribunal does not accept that there would be any intention on the part of another person or New Zealand authorities to cause him significant harm because of any underlying mental health or emotional issues associated with his return or otherwise.
[27] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[28] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
137. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are 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 that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Conclusion
138. 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).
139. 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).
140. 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 any of the criteria in s 36(2).
DECISION
141. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2699

3 April 2024

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