1511272 (Refugee)

1511272 (Refugee) [2017] AATA 1404 (28 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511272
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Rodger Shanahan
DATE:28 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 July 2017 at 11:12am

CATCHWORDS
Refugee – Protection visa – Jordan – Religion – Muslim – Social group – Homosexual – Insufficient evidence – Lack of credibility – No significant harm
LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Jordan, applied for the visa [in] February 2015.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CLAIMS AND EVIDENCE
PV Application
The applicant claims to be the only son from an observant Muslim family, who from an early age knew himself to be gay. His family suspected this but were in denial. After completing school he met [Person A], with whom he worked as a [occupation]. They were comfortable around each other and one day confessed to each other that they were gay. Other people around them began to notice their closeness. He was afraid that if people found out that he was gay he and [Person A] would be beaten to death, so they had to stay apart.
He needed to escape Jordan and told his brother in Australia that he was gay. His brother welcomed him with open arms and told him that he would be welcomed in Australia. He arrived in Australia [in] November 2014
AAT Hearing
The application and supporting documents were gone through. He was asked what the photos were evidence of and he claimed that they were of his boyfriend [Person A] in Jordan and of the applicant in clubs. There were also what appeared to be text messages from a phone that were interpreted. He advised that the phone they were taken from had been stolen from him in April 2015.
Asked if he had an Australian telephone number, he claimed the person was in Jordan but the phone was in Australia. He never reported it to the police and he was asked if there was any evidence that it was stolen and he claimed that he didn’t. Asked if he bought a new phone after it was stolen, he claimed the stolen phone had a Jordanian sim card. He bought a new phone two days after the other was stolen. He was asked if he had evidence that he had purchased a new phone two days after the former was stolen – he claimed he didn’t and he was asked to provide evidence following the hearing that he had purchased a new phone at this time.
He was also asked if there was any way of proving that the person in the photo he produced was the person he claimed and he said that he didn’t have any evidence. He was asked about the tickets he had to Gender Trailblazers’ and he claimed when he first came to Australia he went to a party in the city in February. It was a play that talked about people who changed gender. Asked if he knew who was there, he said there was an old lady but didn’t know her name – he didn’t really know English.
There were about five or six people presenting but didn’t remember any of their names. The show was like a play performing things related to transgender, a person from America and someone was singing. He said he knew some English and was asked to explain to the member in English what occurred at the show; he said he understood everything but couldn’t speak well. He was asked into explain in English what occurred at the play but was unable to do so.
Asked why he went to the event, he claimed that he went to watch – he was new and wanted to see what sort of activities were there. It was put to him that it was strange that he chose to go to an English-language performance two months after coming to Australia given he didn’t understand English. He said he wanted to go to listen and learn English. Asked how he would learn English from the play, he claimed he didn’t mean to learn tut to know what activities there were out there.
He was staying at his [relative’s] house; she was [Person B]. Asked who [Person C] was, he claimed that it was him. It was his email address in Jordan. He claimed he didn’t access it much but accessed it last one month ago. He used it for emails. He also used it for his Facebook account and was asked what it was called – he was then asked to bring it up on his phone.
He was asked what other accounts he had besides his cheque account and he claimed he had a [Australian bank] account that he didn’t use. He was asked to provide a copy of his [Australian bank] statements. There was a photo with two of his friends but they were not asked to attend the hearing by the applicant. He was asked if he could produce his payslips and bank statements from Jordan as he had been requested. He claimed he asked the bank and his account had been closed due to inactivity (it was closed after six months). He tried to get proof from the [overseas] bank in Australia but was told there was no contact with the bank in Jordan.
It was put to him that his bank in Jordan would have notified him if they were going to close his account and he claimed he didn’t know. He was asked to contact his bank and provide evidence. He claimed there were no pay slips in Jordan and only paid in cash. It was put to him that they would pay into a bank account and he claimed that only government employees or people working in companies were paid into their accounts.
Ordinary workers didn’t get paid this way, only in cash. It was put to him that he was a marketing manager, not a labourer. This was a serious job – he claimed he was paid via an envelope. Technology in Jordan was not that advanced. It was put to him that he must then have put his money into his account as he would have had to show evidence of funds in order to get his Australian visa. It was put to him that not much weight would be put on letters but account details from the bank such as a computer-generated bank statement that couldn’t easily be fabricated would be required.
He was asked if he transferred his money from his account into an Australian account and he claimed that he brought all his funds in cash to Australia[amount]. He kept it until he opened an account. He was asked where the AUD [amount] in his Australian account came from and he claimed he had been working. He worked as an educator in family day care. It was put to him there were no deposits evident in his account and he claimed he took cash money from them after taxes.
He was asked to provide a group certificate and formal notification of his employment (he had commenced working there from May 2016 until February 2017). It was put to him that there were no deposits recorded in his statement and was asked where his AUD [amount] came from. He claimed it was savings and his [relative] gave him some. He was again asked for his contract, group certificate and when his account was opened.
He claimed that if he returned to Jordan he would be harassed and would be unable to see his family because Jordanian society didn’t accept gays. He would be killed by his father and the rest of the family (his [relatives]). He felt suffocated and scared in Jordan as he couldn’t tell anyone about his sexuality. His [relative] came to Jordan and he saw she was nice and asked her about life in Australia. She said that men work and go out on weekends. He was too scared to tell her he was gay but said he wanted to come to Australia.
He told her he would go out with boys in Australia and she suspected he was gay. When he came to Australia he decided he wanted to live here from the time he first arrived. He was scared about telling his father he didn’t want to return. His purpose in coming to Australia was to change his way of life, to rid himself of society, to see the world and how people live. He was also worried about his [relative’s] husband as he was Jordanian but he was good. He told his [relative] he was gay and she was shocked but accepting as was her husband.
In Jordan he wasn’t able to live a homosexual lifestyle nor did he have any gay relationships except for the one that was away from the public eye. This was with [Person A] – he worked in a [shop] that [Person A] owned. The applicant worked there for [number] months. He worked there from the end of 2013 until the end of 2014 when he came to Australia. He also used to work occasionally at a shop when they needed him. He was [full time] – he could go out and come back if he needed and would be paid depending on the number of people he saw that day. He had no qualifications and learnt on the job – he tried to get some evidence of this but was unable to.
The other job he was called when goods came in and he would coordinate the goods on the shelf. He did this about twice a week and had done this for about two years from 2012. He no longer had contact with [Person A] as it stopped in June 2015. [Person A] started seeing someone else and they finished the relationship. [Person A] never tried to see the applicant – he didn’t know why.
Since the applicant had been in Australia he had been going to Oxford St, to the [Club 1]. He was shocked to start with but began to meet people. He met [Person D] in the [Club 2] and [Person E] who was also from Jordan. He met [Person E] in September 2015 at [Club 2] but it was in Oxford St next to the [Club 3]. [Person E] introduced him to friends including someone called [Person F]. [Person F] is from [Country 1] and has broken English and they had a two-week relationship but [Person F] hurt him emotionally. Their relationship stopped.
He then met [Person G] in [Town 1] who was half-[Country 2], half-[Country 3] who spoke some Arabic. He was asked if he could offer any evidence to support his claim that he had a gay relationship, such as a gay dating site, was he connected with the gay Arab group(s) in Australia. He said that he had photos but it was put to him that this just showed a group of people out socialising and was not indicative of any type of sexuality. He claimed he had a membership card to [Club 4] that was a club for gay Arabs but he never went there as he didn’t want people to know he was gay, he preferred Oxford St. Asked why he didn’t have a relationship with an Arabic speaker and go to Oxford St so at least they could converse, he claimed that he didn’t like to go to gay Arab clubs.
He had no current gay partner, and was asked if he had any proof that he had had a homosexual relationship in the past, such as photos of him in a loving relationship, social media messages that indicated the same. He claimed he couldn’t do this on Facebook as he didn’t want anyone in Jordan to know. It was put to him that his name was different in Jordan and he said this was what he was known by. Asked why he just didn’t open an account in a different name. he claimed he was thinking of doing this, and it was put to him that he had several years to do this but hadn’t. Asked if he a profile on Grinder or other gay dating site, he claimed he wasn’t good with technology but also had trouble because of the English language barrier.
It was put to him that he had provided an email showing gay Arab services in Sydney and was asked if anything had been done. He claimed he had registered but hadn’t done anything. It was put to him that he claimed language was a barrier and this was a way of addressing that, yet he hadn’t done anything about it. he claimed he met [Person E] who spoke Arabic and said speaking to people was a good way of learning English. It was put to him that he had been here three years so he could have studied the language. He claimed he was thinking of doing this.
He was asked if he wished to call the people he nominated as witnesses. He claimed they would tell the Tribunal about how the applicant was living his life. He was then advised about s 424AA and it was put to him that in his tourist visa application he stated that he was [occupation] at [named] market and had been there for [number] years and there was an employment letter to that effect. Yet today he claimed to have worked full-time at this [shop] as a full-time worker for a year under the supervision of [Person A]. There was no mention of this employment to the embassy, nor had he provided any evidence that he worked there despite being asked to do so. This may go to the issue of his credibility, and whether [Person A] existed and/or he had a relationship with someone called [Person A] and it may have been fabricated.
He claimed that the [shop] was not a registered company. It was put to him that he claimed it was his full-time job, whereas he claimed he worked at [named] market perhaps two days a week. He claimed [named] was a known market not like a shop, and he couldn’t provide papers from the shop. He could come and go as he pleased from the [shop], it wasn’t like an 8-5 job.
He was asked why he wanted to come to Australia to exercise his freedom yet only applied for protection after [number] months, just before his [temporary] visa expired. He claimed he was waiting around seeing the country before he applied. It was put to him that the delay may call into question how real his fear of serious harm was. He said he was living with his [relatives] and was a bit afraid.
Under s 424AA it was also put to him that the member had viewed some video of ‘Gender Trailblazers’ that appeared to be an ‘in-conversation’ style production, yet he described a play with people singing and acting. This was inconsistent with his description which may call into question whether he ever went, as well as the question that going to a spoken two-hour production when he didn’t understand English may call into question how this revealed a proclivity for homosexuality. He claimed people were acting and one person came and sang.
It was put to him that the Tribunal had concerns that he was actually gay, and may have come to Australia for economic reasons and he had not been truthful regarding his financial situation. He had not provided a statement for his other account and had not provided 12 months’ worth of his statements. He was asked to provide all statements of his bank accounts for all of his time in Australia.
A call was made to [Person E] (one of the applicant’s witnesses) who went by the name of [name]. He claimed that he met him around [number] months ago and was his best friend. [Person E] was gay and Jordanian and understood how he felt. They met in [Club 5]. Asked why he believed the applicant was gay, [Person E] said that the applicant told him he was gay and based on the way [Person E] viewed the applicant, he believed he was gay. Language was a barrier and he couldn’t even say hullo in English but was now helping him to speak.
He knew the applicant was in a relationship for two weeks with a man who cheated on him. This was four or five months ago. The applicant and the [Person F] met in a hostel. [Person E] tried to introduce the applicant to the gay scene with his non-Arab friends. Asked how they conversed with a non-English speaker, he claimed they had weak English so could communicate.
He was also advised about s 5J(6) and it was put to him that if he did go to gay nightclubs and the performance, there were concerns that he may have gone for the sole purpose of creating a refugee profile, and it was not reflective of his sexual orientation. He had no comment on this.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa [in] November 2014 and applied for a protection visa [in] February 2015. The applicant is a [age] year-old single Jordanian national and his application will be assessed as such. He claimed that he would be killed if he returned to Jordan because he was homosexual. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.

I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Credibility Issues
There were several occasions in which the applicant’s credibility was found wanting when tested, and his finances are one of these. When he was asked to provide bank statements from Jordan he originally stated that he had asked them by phone, but couldn’t access them because the account had been closed after six months due to inactivity. He nevertheless said that he withdrew all his money [amount] in cash and brought it with him to Australia where he opened a bank account with it.
Post-hearing he produced both Jordanian bank statements and additional Australian bank statements from [Australian bank]. He had provided at hearing copies of his [other Australian] bank statements from a [account], the earliest of which was from November 2016, two years after he arrived. Asked if he had any other accounts he claimed that he had a [Australian bank] account that he didn’t use. Post hearing he provided copies of statements from a [Australian bank] account, the first entry of which was dated [in] February 2014, and the last of which ended February 2017 with a balance of AUD [amount].
In November 2014 he withdrew all of his funds from his Jordanian account which amounted to [amount] yet his opening [Australian] account in November was only [amount] AUD and further funds (amounting to AUD [amount]) were not deposited until February 2015. The inconsistency between him claiming not to be able to access Jordanian bank statements but then doing so, and also regarding the inconsistent claims of his total funds and his transfer of them into Australia adds to other concerns about the applicant’s lack of credibility I have highlighted below.
Homosexuality
There is no single test to determine one’s sexual orientation. I am satisfied however, based largely on the lack of credibility of the applicant that his claim to be homosexual is entirely fabricated and he neither is, nor does he identify as being homosexual.
To begin with I do not accept that the applicant had a homosexual relationship with [Person A], the owner of the [shop] where the applicant worked full-time. To begin with, in his visa application in Jordan (folio 88) there is no mention of him working in a [shop.] Rather he claims to have been a [occupation] assistant at [named] market in Jordan and a letter to this effect was provided.
Yet in his hearing he claimed that he worked full-time at the [shop] and worked at the markets when called which was about two days a week. He was unable to provide any evidence that he worked at the [shop], never mentioned this employment to the embassy when applying for his visa and it appears implausible that he would be employed at the [shop] without qualifications and, even if he were taught on the job that they would allow him to come and go as he pleased, including devoting two days to work at the markets.
I have taken into account information that he provided post-hearing however lend it little weight. The letters he claimed were from his employers were simple notes in poor English that could have been typed up on any home computer.
Because he never worked at the [shop] it follows that he never had a relationship with [Person A] who ran the [shop]. I have taken into account the evidence that he has provided but lend it little weight. There is no indication as to the date(s) when they were sent, and it is impossible to check their validity as the applicant claims that the mobile phone on which they appeared was stolen. I am not satisfied that this occurred given he has not reported it to the police and, when he was asked to provide evidence that he purchased a new phone two days after his was stolen, he failed to do so.
Similarly, he has provided three photos of a person he claims is [Person A] (folios 29-31) yet they could be of anybody taken by anybody and just handed to, or downloaded by the applicant. The veracity of the images relies entirely on the credibility of the applicant, which I have found to be lacking. Post-hearing he also provided copies of photos and a letter however I lend them little weight. The letter was written in poor English and could have been produced by anyone. The photos show someone [working in a shop] without any way of verifying for the member who the person is. There is also a photo of five people in what appears to be a [shop] sitting around in a group with one person half reclined on another. There is no indication of who is in the photo, nor the context in which the photo was taken.
I also place little weight on the tickets to the Gender Trailblazers show he produced (folios 96-98). To begin with he described it as a play with actors and singing whereas the press described it as a ‘conversation between actress/musician Calpernia Addams and trans-activist and musician Paige Phoenix as Gender Trailblazers.’[1]
[1] accessed 24 July 2017
I also do not accept that a non-English speaking Jordanian would be able to understand much if anything of a two-hour on-stage discussion in English with a transgender American musician/activist. I am therefore not satisfied that he attended, or was asked to attend such a production. This lack of English language skills was mentioned several times as a barrier to his interacting more closely with the gay community in Sydney, yet he has made no attempt to attend English language classes in his two and a half years in Australia. It seems anomalous that if this was such a barrier that either learning English to interact with English-speaking gays, or going to Arabic-speaking gay venues wouldn’t have been a high priority in order to allow him to give expression to his alleged homosexual identity.
I also place little weight on the emails (folios 99-104) as any indication that he is gay. Neither are written to him, and even though one indicates the way to contact the gay scene for Arabic-speaking gays he took no action to follow this up. He was vague as to why he didn’t contact them, other than because he didn’t want people to know he was gay. This appears to be inconsistent with his willingness to tell his [relatives] he was gay, go to gay nightclubs in Oxford St and a a transgender in-conversation show at the Seymour Centre.
He has no social media presence that would indicate any embracing of a gay identity. Although he claimed nit to be technically savvy, it is a simple process to start some of the applications and platforms. Even though he claimed not to have opened a Facebook page because he didn’t want people to know he was gay, he could have easily opened one in another name with minimal effort.
I have also taken into account some photos presented at hearing that he claimed indicated he was homosexual but lend them little weight as they simply show a group of people out socialising with no indication there is any degree of sexual intimacy between them, nor of a common sexual identity shared by them. I also lend little weight to the telephone interview with a witness, [Person E], who claimed he knew the applicant to be gay. It is impossible to verify the accuracy of what the person said regarding the applicant’s relationship with [Person F] or his sexual identity, and I place much more weight on the applicant’s own lack of credibility.
Because I do not accept that the applicant is gay it follows that he never had a relationship with a [Country 1] backpacker called [Person F], nor with a [Country 2]-[Country 3] person called [Person G]. I also place little weight on the threatening email (folio 37) which said the person would kill him because the applicant was gay. It was not referred to by the applicant during his hearing, there is no date on it and it could have been written by anyone.
There is a s 438 certificate on the file (folio 128) which I do not believe to be valid given it has not specified why it is not in the public interest to release it. Regardless, I relied on elements of the document in my finding (his claimed employment in Jordan) but the applicant was given an opportunity to comment on that information under s 424AA of the Act.
Because I do not accept that the applicant is homosexual, it follows that he would not be harassed on return to Jordan, nor would his family seek to kill him. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s claimed attendance at gay nightclubs for the purposes of the applicant’s refugee claims, I have had regard to it in assessing his claims relating to s.5J(6). Because I do not accept that the applicant is or would be perceived to be gay, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1404

28 July 2017

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