1512883 (Refugee)

1512883 (Refugee) [2018] AATA 3217 (9 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512883
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Mara Moustafine
DATE:9 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 July 2018 at 10:28am

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Shia – Particular social group – Educated woman – Divorced woman – Sunni extremists – Honour killing – Credibility issues – Delay in seeking protection – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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
BACKGROUND AND APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is [an age]-year-old woman and a citizen of Pakistan. She arrived in Australia [in] June 2007 as a dependent applicant on her former husband’s [temporary] visa. She applied for a Protection visa on 16 April 2013.
Evidence before the Department
Protection Visa Application
In her Protection visa application, the applicant claimed that she was a Shia Muslim, born in [year] in Faisalabad, Punjab province, where she lived until her marriage in [year], then moved to Lahore. She completed [number] years of education, including a [Qualification 1] and worked in various roles in Pakistan, including as [specified occupations]. In Australia she has worked as [specified occupations]. She identified [number of children] as members of her family who were not included in her application stating that they were part of their father’s application.
The applicant fears she will be harmed by the Sunni Islamic fundamentalists because of her profile as an educated woman and [Occupation 1], coupled with her Shia religious background. She also fears that, as a divorced woman, she may become a victim of an honour killing at the hands of her husband’s family and her family.
Protection Visa Interview
The applicant was invited to attend an interview with the Department on 11 Aug 2015 but failed to appear.
The Delegate’s Decision
The delegate refused to grant the visa on 24 August 2015 as he was unable to be satisfied that the applicant’s claimed fear of persecution in Pakistan was well founded, in the absence of an interview where he could verify the applicant’s claims and obtain substantiating detail from her.
Application for Review
On 20 September 2015, the applicant applied for review of the delegate’s decision, a copy of which she provided to the Tribunal for the purposes of the review and is, therefore, taken to be on notice of its findings and reasons.
On 3 April 2018 the applicant emailed to the Tribunal a statutory declaration and supporting documents. Key relevant points in her statutory declaration can be summarised as follows:
·     She was born into a middle-class Shia Muslim family, who were active in social and welfare work for the Shia community, and was a member of the Islamic Student Organisation (ISO), helping with the education of young girls. While working as [an Occupation 1], her Shia background became known and she received “different mixed threatening messages” directly and direct warning to [her manager].
·     Due to continuous threats from Islamic militant groups against her husband, [who had a military background and] was on their “Hit list” as he had been actively involved in operations against them, they applied for [temporary] visas in order to get out of Pakistan on advice that this was the easiest visa to get with least processing.
·     When her husband’s [temporary] Visa was cancelled in February 2008, the applicant applied for [her own temporary] Visa but this was refused due to the expiry of her substantive visa. She then applied to the MRT for a review of this decision.
·     As a highly qualified Shia [Occupation 1], she had been a “high target” for the Islamic extremist groups in Pakistan. If she returns to Pakistan, she and her children will be a “major target” for these groups. She has no protection for her life and cannot protect her children from harm and kidnapping.
·     She decided to divorce her husband because of immense pressure on her to earn and bring up the kids; and big fights between them as she was working 363 days a year without holiday at her [business] and he had no work rights and could not help her.
·     Divorced women in Pakistan are considered as a being of bad character, as prostitutes and get no respect. Her family has stopped communicating with her and refused to support her “just because of one reason” – that she asked for a divorce from her ex-husband; and believe she brought disgrace on her family. Her ex-husband’s family believe she has destroyed their honour and respect. If she returns to Pakistan she will be targeted for honour killing by them.
·     As she has been living in Australia since 2007, she is not in contact with anyone who can help her get a job.
The supporting documents included a copy of the delegate’s decision, academic certificates from Pakistan and Australia ([various listed]); two documents in Urdu (untranslated) purporting to be threat letters from Sipah-e-Sahaba to [her manager] and to the applicant; a Divorce Deed dated [date] (resubmitted at hearing due to corruption in transmission); and a letter of support from a friend, [named], later identified as her ex-husband’s new wife).
Further documents provided on the morning of the hearing, included generic country information about the situation of Shia Muslims and sectarian violence in Pakistan; media reports about the rape and murder of a female student in Faisalabad and child sexual abuse in Pakistan; and an untranslated document in Urdu, purporting to be a police report (FIR).
The applicant appeared before the Tribunal by teleconference between [City 1] and Sydney on 5 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. However, the applicant spoke in English throughout the hearing.
On 6 April 2018, after the hearing, the Tribunal wrote to the applicant in accordance with s.424A of the Act seeking the applicant’s comment or response to information which it considered would, subject to her comment or response, be the reason, or part of the reason for affirming the decision under review. This information, which was contained in the applicant’s statutory declaration of 23 February 2017 submitted to the Tribunal by her ex-husband in the context of his Partner visa review application, was inconsistent with her evidence at hearing about the custody of her children and where they lived after her divorce. The Tribunal noted that this information was relevant to the review because the inconsistencies raised serious doubts about the applicant’s truthfulness and undermined the general credibility of her evidence, as well as the veracity of the document presented as evidence of her divorce and the integrity of her evidence regarding her relationship with her former husband.
The applicant responded to this letter in a statutory declaration dated 20 April 2018. Relevant parts of her response are discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, Reasons and Findings
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
The applicant’s central claims are, firstly, that if she returns to Pakistan, she will be harmed or killed by Muslim extremists because she is a highly qualified Shia [Occupation 1]; and secondly, that she will be targeted for honour killing by her and her ex-husband’s families because she divorced him.
The Tribunal accepts that the applicant is a Pakistani national of Shia Muslim religion and was, at one time, [an Occupation 1] in Pakistan. However, for reasons outlined below the Tribunal did not find the applicant to be a credible or truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in her evidence throughout the process, the implausibility of key aspects of her claims and other reasons detailed below.
Harm from Islamic extremists as a highly educated Shia [Occupation 1]
The applicant’s claims as to why she feared harm from Islamic extremists in Pakistan evolved during the course of the Protection visa process. In her initial application, she expressed a general fear of harm from Islamic extremists based on her profile as a Shia and [an Occupation 1]. However, in new evidence submitted to the Tribunal in her statutory declaration and at hearing, the applicant presented herself as coming from a family that was active in the Shia community and a member of the activist Islamic Student Organisation (ISO). She now claimed that, as a qualified Shia [Occupation 1] she had been a “high target” for Pakistani Islamic groups; had received threatening messages directly and through [her manager]; and that Sunni extremists, whose relatives were [clients], complained that she was [promoting] the Shia religion, asked for her to be fired, harassed her and threatened to kidnap her.
The Tribunal has had regard to two documents handwritten in Urdu, purporting to be threat letters from Sipah-e-Sahaba to herself and [her manager], which the applicant submitted to the Tribunal in support of her claims. However, as discussed with her at hearing, because these documents are untranslated and in light of country information that document fraud is endemic in Pakistan, the Tribunal does not attach weight to this evidence.
Asked why she had not mentioned her new claims in her initial application, the applicant sought to attribute blame to the lawyer who assisted her with her original application form. The Tribunal does not accept this. As pointed out to her at hearing, the applicant signed a declaration at the end of her application form that the information she had supplied or caused to be supplied was “correct, complete and up to date in every detail”. The Tribunal is not satisfied that either the applicant or her [manager] received threats from Islamic extremists while she was [an Occupation 1] in Pakistan as claimed. In the Tribunal’s view, the applicant embellished her claims in an attempt to strengthen her case after the Department refused her application.
Harm and honour killing from family for divorcing her husband
In her initial Protection visa application the applicant expressed a general fear of being targeted by her and her ex-husband’s families and becoming a victim of honour killing because she divorced her husband. However, at hearing she introduced the unsubstantiated claim that her husband’s [Relative A] had actually threated her directly over the phone when she got divorced in [year]. She also speculated that should she return to Pakistan, the [Relative A] might gather other family members to take such action. However, she admitted to having no evidence that he was conspiring with others in this way, saying only that she knew that they all lived together in Lahore. The Tribunal finds it implausible that if her husband’s [Relative A] had, in fact, made such a threat against the applicant, she would have omitted it from her initial application. For reasons already discussed above, the Tribunal considers the applicant’s new evidence to be an embellishment of her claims in an attempt to strengthen her case.
As discussed with the applicant at hearing, the Tribunal has serious reservations as to whether her claimed divorce from her ex-husband is genuine. In her application form, the applicant identified her relationship status as “divorced” but omitted the date it took place. Asked about this at hearing, she initially gave only the year – [year], and was unable to remember the date, saying “I think May something - maybe 11th May”. The Tribunal finds it incongruous that the applicant would not remember the date of so significant an event as a divorce, which she claims she initiated. Moreover, the date the applicant gave was inconsistent with the date on the “Deed of Divorce” document she submitted to the Tribunal, which was [different date].
Further, several aspects of the Deed itself, raise doubts as to its authenticity. The Deed, which bears the signature of applicant’s husband, states that he signed it “in the presence of two witnesses” and that it was “made at Karachi”. This is inconsistent with the applicant’s evidence at hearing that she and her husband talked by telephone with the Imam who was in Karachi and registered the divorce with him. Although the applicant claimed that the Divorce Deed was a formal Pakistan government document, as was pointed out to her at hearing, it is in fact a statement on “rupee paper”, which can be purchased anywhere in Pakistan and is not a legal document[1]. In light of the above, as well as country information from DFAT and the Canadian Immigration and Refugee Board (IRB)[2] about the prevalence of fraudulent divorce documents in immigration matters, the Tribunal does not give weight to the Divorce Deed provided.
[1] US Department of State, DFAT, DFAT Country Information Report Pakistan, 1 September 2017; IRB of Canada, Pakistan: Fraudulent documents other than identity documents, including methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents; First Information Reports (FIRs), newspaper articles, academic qualifications, and land ownership titles, 13 December 2011,
The Tribunal’s concerns about the genuineness of the applicant’s divorce are compounded by the fact that, by her own evidence, she has been living with her ex-husband and children, as well as his new wife since 2015, when she moved from [City 2] to [City 1]; still owns property with her ex-husband; and he supports her, as well as her children, as she does not have work rights. As discussed with the applicant at hearing, this might suggest that there has not really been a breakdown of her relationship with her ex-husband and relationship but that they have undertaken a “paper divorce” for immigration purposes, notwithstanding the her comment that she and her ex-husband were living in separate rooms.
The Tribunal’s concerns about the applicant’s truthfulness and general credibility are exacerbated by inconsistencies in the applicant’s evidence regarding the custody of her children and where they lived after her divorce. The applicant told the Tribunal at hearing that [all her] children were in her custody, as was stated in the Deed of Divorce that she submitted; that after her divorce, the children remained with her in [City 2], while her former husband remarried and moved to [City 1] in 2012, while she and the children moved to [City 1] at the end of 2015. However, in her statutory declaration dated 23 February 2017, which her ex-husband submitted to the MRT in support of his Partner visa application, the applicant stated that, after he re-married, he became the legal guardian and had custody of the children; that her ex-husband moved to [City 1] with [number of children] in 2012, while [one child] later moved to [City 1] “with [their siblings] and father”.

In her response to the Tribunal’s letter which drew these inconsistencies to the applicant’s attention in accordance with s.424A of the Act, she affirmed that the children were in her custody and that they remained with her all the time. However, she qualified this, saying that for a few months (January to October 2012) [specified children] moved to [City 1] with their father; that it was clear from her statutory declaration that it was during this period that he was their legal guardian; and that she and her ex-husband never went to court to obtain legal documents for custody because there was mutual understanding between them to decide where the kids would be living based on their circumstances and best interests.
The Tribunal accepts that the applicant and her ex-husband never went to court to obtain legal documents for custody for the reasons claimed, but finds this explanation disingenuous and self-serving. If the applicant’s qualification, that her [specified children] only went to live with her ex-husband for a few months, is true, it begs the question why the applicant would mention it at all in a statutory declaration made in 2017, five years after the fact. Nor does it explain why she would state that [one child] later moved to [City 1] “with [their siblings] and father” if, in fact, the applicant and her children all moved to [City 1] together in 2015. In the Tribunal’s view, the applicant’s statutory declaration of 23 February 2017 was tailored to suit the purpose of her ex-husband’s Partner visa review, while her evidence to the Tribunal was seeking to strengthen her claims for Protection. This raises questions about the applicant’s truthfulness and the integrity of her evidence regarding her relationship with her former husband and further undermines the general credibility of her evidence.
In view of the above, the Tribunal is not satisfied that the applicant and her former husband are genuinely divorced. As the Tribunal is not satisfied that the applicant is genuinely divorced, it follows that it does not accept her claim that her family has stopped communicating with her, nor that she will be targeted by her and her ex-husband’s families for honour killing over this divorce.
Significantly, there was a delay of over six years between the time the applicant arrived in Australia in June 2007 and when she lodged her Protection visa application in April 2013. At hearing she said that she and her husband left Pakistan because of threats from extremist groups and were advised by their agent that the easiest way with least processing time was to apply for [temporary] visas but that they did not mention the threats to the Department because they thought the situation in Pakistan might change. However, she told the Tribunal that, although the threats against them were still active when her husband’s [temporary] visa was cancelled in February 2008, she then applied for her own [temporary] visa and made no mention to the Department about her fear of harm in Pakistan. The applicant said their intention was to go through the “proper procedure” and get permanent residency without the need to use a Protection visa but circumstances changed and they could not get what they planned. As discussed with the applicant, a person who was genuinely in fear for their life, would seek a Protection visa at the earliest opportunity and a delay of six years raised doubts as to how genuine her fear of harm was. By her own evidence, her real interest has been to acquire permanent residency and it was only after she exhausted other avenues, including her [temporary] visa application and Tribunal review, that the applied for protection visa. In the Tribunal’s view, this was to achieve a migration outcome.
Harm as a Shia Muslim and other issues
The Tribunal has also considered, but is not satisfied, that there is a real chance that the applicant will suffer serious harm on the basis that she is a Shia Muslim if she returns to Pakistan now or in the reasonably foreseeable future. While Shias have long been targeted by Sunni extremist groups in Pakistan, there is general agreement among independent sources, including DFAT, that there has been a substantial reduction in the level of generalised and sectarian violence in Pakistan since the government launched its counter terrorism military operation Zarb-e-Azb in June 2014. Overall DFAT assesses as low the risk of generalised and sectarian violence for most Shias in Pakistan and even lower in the applicant’s home province of Punjab[3]. In light of this the Tribunal is not satisfied that the applicant faces a greater risk of harm for reasons of his Shia faith than other members of the Shia Muslim community in Pakistan.
[3] DFAT, DFAT Country Information Report Pakistan, 1 September 2017
The Tribunal has examined the material provided by the applicant about the situation of Shia Muslims and sectarian violence in Pakistan, the rape and murder of a female student in Faisalabad and child sexual abuse in Pakistan. There is no persuasive evidence before the Tribunal to suggest that this form of violence is faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Pakistan would expose the applicant to a real chance of persecution for a Convention reason.
At hearing the applicant told the Tribunal that she feared returning to Pakistan because her children would not be able to survive there as they had spent most of their lives in Australia and didn’t know anything about Pakistan. The Tribunal noted that, in her Protection visa application, she indicated that her [specified children] were part of their father’s application and queried why the applicant had not included her children in her application, given her claim to have custody of them. The applicant responded that her ex-husband had applied separately for protection for [all the] children. The Tribunal affirmed that, under these circumstances, its consideration would be confined to the applicant’s claims.
Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about her experiences in Pakistan and the reason she fears harm there; or that any of her evidence can be relied upon. The Tribunal is not satisfied that while living in Pakistan the applicant ever received threats from Sunni Islamic fundamentalists or extremists directly or through [her manager] for [promoting] the Shia religion, nor that she was a “high target for Pakistani Islamic groups” as a highly qualified Shia [Occupation 1]. It follows that the Tribunal is not satisfied that, if she returns to Pakistan, the applicant will be targeted by these extremist groups because of her profile as an educated woman, a highly qualified Shia [Occupation 1] or for any other reason; nor that she will be a “major target” for these groups. As the Tribunal is not satisfied that the applicant’s divorce from her husband is genuine, it does not accept that the she may be targeted for honour killing by her and her ex-husband’s families because she divorced him; nor that she was threatened with honour killing by his [Relative A]. In the Tribunal’s view, the applicant fabricated these claims for the purposes of seeking a Protection visa in order to remain in Australia.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Pakistan the applicant will suffer serious harm amounting to persecution for the reasons claimed or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should she return to Pakistan now or in the reasonably foreseeable future.
The Tribunal has also considered the applicant’s claims under complementary protection. The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In light of country information referenced at paragraph 36 regarding the security situation for Shias in Pakistan, 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 Pakistan, there is a real risk that she would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.
The Tribunal accepts that the applicant would prefer to remain in Australia and that her return to Pakistan after seven years may cause her anxiety and distress and that she may have lost contact with anyone who can help her find a job. However, the Tribunal considers that with her multiple qualifications in a range of fields as well as her varied work experience in Pakistan and Australia, the applicant is well placed to overcome any initial difficulties in finding employment. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Mara Moustafine
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.
…

[2018] AATA 3217

9 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction