1512821 (Refugee)

1512821 (Refugee) [2017] AATA 2946 (15 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512821
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Rodger Shanahan
DATE:15 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 November 2017 at 2:45pm

CATCHWORDS
Refugee – Protection visa – Lebanon – Interfaith marriage –Threatened by family members in Lebanon – Credibility issues
LEGISLATION
Migration Act 1958 ss 5H(1)(a)-(b), 5J, 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 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 Lebanon, applied for the visa [in] December 2014.
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
Protection Visa Application
The applicant came to Australia on a [temporary visa]. Since he had been in Australia he had married an Australian citizen of Shi’a Muslim faith. This was not an issue for either her family in Australia or his. Unfortunately they had a miscarriage. At this time his mother told him that she had received threatening calls from his wife’s family in Lebanon who were Shi’a. They had been unhappy about the marriage, thought it wouldn’t last but became angry when they found out about the pregnancy and threatened to kill the applicant if he returned to Lebanon because they feared the children would be Sunni.
His mother didn’t want to tell them while his wife was pregnant but felt it was necessary to do so once she knew about the miscarriage. They were shocked but he was confident his mother would be okay as her relatives and family would protect her. At the same time he had a partner visa application but this was refused due to a mix-up.
His wife’s family found out when she became pregnant again and then the threatening phone calls to his mother re-started. The people also threatened to kill the applicant’s son at the same time. He lives in constant fear of returning to Lebanon about what these Shi’a extremists will do. The Lebanese government can’t protect him or his family as they are corrupt and infested with Shi’a Islamists.
AAT Hearing
The applicant claimed that he feared for his life in Lebanon because he married a Shi’a woman and her family had threatened him and his children through his mother in Lebanon. He had not put in a separate claim for his children. Most of her family were in Lebanon – uncles and aunties.
They were married on [date] March 2012 in Australia; nobody came from Lebanon. [Sentence deleted]. They lost a child in July 2013 and then within a month his mother told him about receiving threatening phone calls. The callers wanted to kill the applicant and his children because they didn’t believe in mixed marriage. He didn’t take it seriously because they had a spouse visa application in and he wasn’t aiming on returning to Lebanon.
His mother had received around three calls then stopped taking calls from unknown numbers, but within the same month she received another three. Asked why she answered the second group of three calls, he said she had been [an occupation] and answered [calls]. She never reported the calls to the police as she was scared and didn’t think the police would do anything. She was scared of escalating the situation and being hurt. She hadn’t been hurt at that stage, and the police couldn’t do anything.
Asked what he meant when he said that the police couldn’t do anything when threats had been made against a Lebanese national, he said she would have to fill out a report and they would want to know where her son was and who was making the calls. They couldn’t do anything. It was put to him that the police could record the calls or track them. He claimed that one could get an unregistered sim card – it was put to him that they could trace the call and geo-locate the handsets to find out who was making the call given their locations, regardless of whether they changed sim cards. The member was familiar with Lebanese security force technical capabilities and this action was within those capabilities.
It was strange that his mother would not do everything to find out who was making the threats to her [child]. He claimed his mother knew from the accent the people were from the south. He repeated that his mother was afraid of reporting it to the police as the callers may then harm his mother, and she believed the police wouldn‘t know who made the calls. He told his mother that he could be protected from Australia.
Asked why his mother would tell him this news within a month of them losing their child – and that it would be more likely that a mother would want to shield their [child] from bad news. There seemed to be no point in telling him about the calls, particularly as she never reported it to the police and wasn’t going to do anything about it. He had originally told her that he would stay here on a spouse visa, but when he told her that he may have to come back she told him then about the threats. Asked if he then applied for protection, he claimed he appealed the spouse visa.
It was put to him that he could lodge a protection visa regardless. He claimed he thought his spouse visa would be approved. He claimed he had told his migration agent about the death [threats]. Asked if he was a registered migration agent, he said he didn’t think he was. Asked if there was anything that would prove he had told his [migration agent], he said that he didn’t think there was.
He was asked whether his mother changed her phone number and he claimed she hadn’t – she was afraid they would come and find her if they couldn’t get through by phone. It was put to him that they could have done this after the first time they called if they wanted. She was also working [in a certain role]. It was put to him that she could have just informed [others] that her number had changed – it was pretty straightforward. He claimed his mother didn’t want to change her number.
The people were still calling from 2013 and it happened all the time; every month. Asked whether it continued monthly for four years, he claimed she only answered private numbers if she was expecting someone to call. Asked what happened to [others] who were trying to get through to her, he claimed that she answered when she [was expecting a work call]. He was asked how she knew she was getting threatening calls if she didn’t answer the phone and he claimed that she answered [and] heard the threats. She hadn’t changed her number or reported this to the police, and nobody had come to physically see her.
He was asked if he could provide any evidence that such phone calls had been made other than his oral evidence, and he claimed there was an email from late 2014 saying he was receiving threatening calls. He said he had provided a copy of an email. He was asked if this was the only piece of evidence and he said this was all he could provide.
His wife’s family was broadly supportive of the marriage. It was put to him that they must not be happy with part of their family threatening their son-in-law and grandchildren and he agreed. He was asked what they had done to try and track down the perpetrators or involve the police. He claimed his father-in-law didn’t want to involve himself in religious issues. His daughter had been engaged to someone else in Lebanon. It was put to him [his] family-in-law had welcomed him so it was reasonable to believe they would try to do something about it. His father-in-law was a dual citizen, and he was asked what his father-in-law was doing as a Lebanese citizen to help his Lebanese son-in-law. He claimed that the applicant’s [father] and father-in-law met to discuss the issue – he was asked what was done about the father-in-law’s side of the family as this was where the problem was.
Her family was large and influential. Asked exactly what he meant by influential, he claimed that he didn’t know what positions her family occupied. He was then asked what individuals were influential. He claimed he didn’t know as he hadn’t met any of them. They were in the South but he didn’t know what access/connections they had. It was put to him that the Tribunal had to determine his credibility and simply throwing out terms without being to support the claim didn’t help his credibility. He said he understood. He knew her father had worked [in a public service role] in Lebanon as were his uncles. Asked what [position] he was, he claimed he just knew he was in [a certain department] from what he told the applicant. He claimed that he didn’t know his [position] or how many uncles were in the [same department] as they didn’t talk about it.
Their family in Lebanon were observant, and her father here was but not fanatical. He prays and goes to mosques and takes part in muharram. Asked if he knew what marja’ he follows, he claimed that he didn’t as they didn’t talk about religion. He didn’t know about her family in Lebanon.
Asked why there was a problem with marrying a Shi’a, he claimed that it may be because she was supposed to marry her cousin but didn’t, or because her family in Lebanon were fanatical. Asked what the opinions of the senior Shi’a clergy were about a mixed marriage, he claimed that the Shi’a didn’t give their girls to other religions marry – he had grown up with this view from Lebanon and knew of many Shi’a who wouldn’t marry Sunnis.
It was put to him that the religious opinions (fatawa) stated that mixed Sunni-Shi’a marriages are permissible as long as Sunnis didn’t mislead Shi’a – this was likely to be that Sunnis must admit who they were before marriage. Given it was religiously permissible, it was strange that her family would try to kill him for doing this. He claimed some people still didn’t allow this and her original engagement was to a Shi’a.
It was put to him that the Tribunal was unaware of examples of Sunnis being killed for marrying a Shi’a, which was why he had been asked to bring examples. He said he had heard stories but there was nothing noted. It was put to him that a claim he had made was that a phone call his mother received was that the applicant had disgraced Sunnis by marrying a Shi’a – this was a strange threat to receive from her family. He claimed that it may have referred to the blood that ran through his children’s veins.
It was also put to him that his statutory declaration said that they had both seen many people killed for marrying into different sects. The Tribunal had not seen country information indicating any, let alone many people had been killed for this reason. He was asked where he got this information from, and he claimed that perhaps these weren’t reported. It was put to him that he had stated this as a fact given it was on a statutory declaration and he was asked to provide the country information on which the claim was based. He agreed to.
Country information was put to him that there were nearly 20 per cent of all marriages were Sunni-Shi’a and there were 400,000 Sunni-Shi’a children. This was a large minority and a large number of mixed sect babies. He was asked why he had been singled out for death threats given these facts and the lack of evidence that such deaths as he claimed to fear actually occurred. He repeated that it was because she had been engaged to her cousin and he had to return to Lebanon so this made things much worse. Asked if it was about the failed engagement only, he claimed that it was not only this but it had exacerbated the situation. Asked whether he had mentioned this failed engagement to a cousin issue in his protection visa application statement, he claimed he thought it was written down or may have been mentioned in his interview.
He also said his father wanted the applicant to divorce his wife – so even his own family was involved. Asked if this was a separate claim, he claimed it was related. It was put to him that the protection claim related to return to Lebanon. He claimed that this showed how limited their families’ thinking was. His father had taken him to court here. He claimed his father’s family was in Lebanon. He was asked if he had a claim against his father’s family, given this was a new issue and he had said at the start that his sole claim was against his wife’s family.
Asked what serious harm he feared in Lebanon from his father’s family, he claimed that nobody would help him. It was put to him that he was an educated adult male and this claim alone would not likely meet serious harm levels. He then said that he didn’t know what would happen so he didn’t have any claim against his father’s family.
The applicant’s wife entered and wanted to support his application. She was asked if she could provide any factual evidence. She thought her father followed Ayatollah Fadlallah and wasn’t sure about her side of the family. Asked why she thought they would kill the applicant she said many people were against Sunni-Shi’a marriages. She was told of the 20per cent of mixed marriages, 400,000 mixed children, religious opinions and lack of evidence of people being killed because of such marriages.
She claimed that her side of the family were more strict. Asked how they could disallow it based on religious reasons given the clerics had allowed it, and given observant Shi’a had to follow a senior cleric it was strange they would target her husband. Asked what her father had done to find out who was making the threats, she said he had met her father-in-law. Asked if her father had spoken to the Lebanese police, she said the police didn’t work like in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa in October 2007 and subsequently lodged a [another] in March 2009 and, while awaiting the outcome of that, lodged an application for a partner visa in September 2011. This was refused in April 2013 and appealed but it was outside of the time limits and the MRT found it had no jurisdiction in the matter. In December 2013 he applied for, and in December 2014 withdrew an application for judicial review. The same day he applied for a protection visa.
The applicant is [an age] year old, married Sunni Muslim. He claimed that he feared being killed by his wife’s family in Lebanon because he, a Sunni, had married a Shi’a and they objected to the marriage.
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 that he fabricated his claim in order to be granted a protection visa.
Marriage and threats
I accept that the applicant has married an Australian citizen of the Shi’a faith. I do not accept that this has caused problems with her family to the extent that they have made threats against the applicant via his mother.
The account appears implausible. To begin with, it appears strange that she would inform him of the death threats a few weeks after they had a miscarriage. I do not accept that she did so because he told her that he may have to come back to Lebanon. If this was the case then it is reasonable to believe that he would immediately have applied for protection on the basis of these threats, rather than 18 months later.
The mother’s reaction regarding these alleged threats seems equally implausible. Despite receiving them on a monthly basis for a period of four years, she never reported them to the police, never changed her telephone number and the mysterious callers never visited her. There seems no point in making monthly calls for four years with no purpose. If their intent was to hurt the applicant once he came to Lebanon, then it appears counter-productive to threaten him via his mother while the applicant is overseas and hence make him reticent to return.

I do not accept that she never reported it to the police because they couldn’t do anything about it, given they could have done technical intercepts of her phone calls to geo-locate the callers and to record their voices. Country information indicates that telephone intercepts are allowed via the courts or an administrative decision by the relevant minister.[1] I also do not accept she never changed her phone number as she was afraid they would come in person if they couldn’t get through by phone. Not only could they have come in person any time they wished, it is also inconsistent with her claim that she never answered calls that were from private numbers (except when she was expecting [a work call] ), meaning most if not all calls weren’t getting through anyway. It is reasonable to assume that the callers were not calling every month for four years at exactly the same time as she was expecting a [work call].
[1] accessed 15 November 2017
I also do not accept that he was at threat of being killed because his wife’s family were vehemently opposed to a marriage between a Sunni and a Shi’a. Nor do I accept the claim made in their statutory declaration that ‘Many stories of honour killings are carried out on a daily basis. We have seen many Muslim boys and girls being killed for marrying into different sects.’ The Tribunal is unaware of such incidents and the applicant was asked to provide country information that supports such a claim post-hearing. He agreed to do so, but no such country information was provided.
Country information indicates that such unions are quite common in Lebanon; nearly 20 per cent of marriages are between Sunni and Shi’a[2] and a Chamber of Commerce study found there are 400,000 Sunni-Shi’a (sometimes colloquially referred to as Sushi babies) mixed sect births in Lebanon.[3] Senior Shi’a clerics such as the late Ayatollah Fadlallah[4] and Ayatollah Sistani[5] have both deemed such marriages permissible as long as the woman is not deceived (as to the husband’s true faith) or the wife’s father disagrees. None of these circumstances apply to this marriage.
[2] accessed 9 October 2017
[3] accessed 9 October 2017
[4] accessed 13 November 2017
[5] accessed 13 November 2017
The applicant provided a wealth of country information following the hearing (folios 97-117) but it was largely general in nature, dealing with geo-political, or intra-Lebanese political issues, centring largely on Hizbullah. Some (folios 167-170) are from a radical Sunni site and therefore would have no influence over the applicant’s family-in-law who are Shi’a, while others are of a general political nature. A large amount of country information was also provided pre-hearing (folios 65-91) but it is either general political in nature or dealing with honour killings.
There is one quote from a 2002 newspaper article (folio 87) that claims Shi’a women are prohibited from marrying men from different religions. I have also taken into account the copy of an email (39) allegedly from his mother in Lebanon telling him about the calls, however there is no way of verifying its origin, nor whether such calls were ever actually made. I lend more weight to the implausibility of the claim, the realities of intra-Muslim marriages and births, and the religious opinions of senior clerics contained in the aforementioned sources, than I do to the range of information he has provided (including the single unsourced newspaper quote).
I also find it lacks credibility that the applicant’s father-in-law would do nothing in the face of these calls that threatened to kill his son-in-law and his grandchild. He is a dual citizen and could have made a complaint to the Lebanese police, or sought to address the actions of his own family and to warn them off. I do not accept that his father-in-law did not want to interfere in religious affairs, or that the dispute may have been because his wife had refused to marry her cousin in Lebanon.
This latter claim relies on the applicant’s oral testimony, which I have found lacks credibility. I also do not accept that the father did not want to involve himself in religious affairs. He is an observant Shi’a and, given that senior clerics had allowed such unionist is reasonable to believe that he would have at least sought to influence his family’s actions in Lebanon using the religious argument (particularly given the applicant’s wife claimed the family in Lebanon were strict).
Other Issues
The applicant raised a claim (later withdrawn) that he feared serious harm from his father’s family in Lebanon. This claim was not made previously, and did not extend beyond a vague assertion that ‘nobody would help him’. While I accept that he may not have a good (or close) relationship to his father, given the lack of claim or evidence to this effect I am not satisfied that his father’s family have any interest in harming him on return to Lebanon.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicants do not have a well-founded fear of persecution for any s 5 (J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant’s marriage to a woman of Shi’a faith has caused problems with her family in Lebanon or that his mother has received any threatening phone calls as a result, or that his father’s family would look to harm him in any way, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm.
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 2946

15 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction