1513821 (Refugee)

1513821 (Refugee) [2017] AATA 1441 (2 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513821
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:2 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2017 at 3:35pm

CATCHWORDS
Refugee – Protection visa – Nepal – No Convention claims – Accused of taking money – Fear of generalised crime – Former relationship with a Christian – Failed business venture – Delay in application – Credibility issues
LEGISLATION
Migration Act 1958, ss 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA(1994) 52 FCR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510
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] September 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 Nepal applied for the visa [in] December 2014.
The applicant appeared before the Tribunal on 27 July 2017. He communicated in English.
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. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016, a copy of which was provided to the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, indicates the following. The applicant arrived in Australia [in] January 2009 on a [student] visa. The applicant completed a [course] [in] December 2010. A further [student] visa was applied for [in] April 2011. The applicant was issued with a Notice of Intention to Consider Cancellation of the visa on the basis of an average attendance rate of [number] per cent. The applicant indicated to the Department that he was suffering from depression as a result of a relationship breakdown. The applicant ceased his studies [in] June 2012. A further application for a [student visa] was applied for onshore. That application was refused [in] March 2013. The applicant sought review of that decision by the Migration Review Tribunal on 22 February 2013. The Tribunal determined that it had no jurisdiction as timeframes were not met. The applicant became an unlawful noncitizen [in] June 2013. Bridging visas were granted to the applicant [in] December 2014. The application for the Protection visa was made [in] December 2014.
The application for the Protection visa indicates the following. The applicant was born on [date]. He speaks, reads and writes both Nepali and English. He is of the Hindu religion. The applicant has never been married. The applicant lists one address in Nepal from birth up until January 2009. The applicant lists continuous education in Nepal from [year] until [year]. The applicant lists his occupation as a student. The applicant lists no employment in Nepal.
The written claims for protection indicate that, in Nepal, the applicant was a member of the Young Communist League (YCL). Whilst the written claims are somewhat unclear, the applicant seems to indicate that his own gang accused him of taking money for another gang that should have belonged to his gang. The applicant indicates that in June 2008 he got caught in his home [town]. He was the person most wanted by the group. The applicant was accused of stealing money, breaking group law and providing classified information to another group and spying. The applicant was detained for about three months. He was tortured and blindfolded. A hot metal rod was used on the applicant’s body. Another person managed to escape and the applicant went underground and left the country. The applicant fears harm on return to Nepal from this gang.
The applicant refers to high crime levels in Nepal. He indicates that one [sibling] was chopped up and died and another was shot in the head by authorities in the name of stopping crime.
The applicant refers to the potential for harm from the Christian society of Kathmandu who threatened harm to the applicant and punish him even when he was in [Australia]. This was because he had a relationship with the daughter of a pastor which ended the previous year.
Independent information
The Tribunal notes the following information dated 11 February 2015 provided by the Country of Origin Information Services Section of the Department of Immigration and Border Protection in relation to interreligious marriages between Christians and Hindus in Nepal[1]:
Limited information was located about inter-religious marriages in Nepal. No information was located that denotes a risk of harm to those in inter-religious marriages or their family. Some general information was located on religious freedom in Nepal and on attacks against Christians.
According to a 2006 Immigration and Refugee Board of Canada report,[2] in an interview conducted by the Research Directorate with an Associate Professor of Anthropology at Rutgers University who studied issues of gender and marriage in Nepal, the interviewee asserted that ‘inter-religious marriages are rare’ in Nepal. Moreover, the Associate Professor had not encountered any instances of inter-religious marriage during the course of her research.[3]
However, a 2011 Union of Catholic Asian (UCA) News[4] blog discussing inter-religious altars asserts that ‘it is not uncommon for minority Catholics in Nepal to marry Hindus or Buddhists’. The article includes an interview with a married Nepalese couple – a ‘parishioner of Kathmandu’s Assumption Church Catholic’ and ‘a Hindu man’. The article provides photographs of inter-religious altars exclusive to Catholic Christian inter-religious marriages. The article reports that the parish priest of the Assumption Church, Fr. Robin Rai, noted that a number of inter-religious altars exist in various houses in Kathmandu. According to Fr. Robin Rai “There are exemplary Catholics in our parish married to non-Christians who have inter-religious altars at home.”[5]
A 2014 Asia News IT article reports on ‘mixed families’ (families of mixed religions), asserting that religious freedom and harmony is increasing in Nepal. Reference is given to harmonious celebrations amongst mixed families during the 2014 Hindu Dashain Festival. In particular, the article gives reference to a quote from President Ram Baran Yadav that acknowledges religious harmony and the prevalence interfaith marriages in Nepal:
Kathmandu (AsiaNews) - In order to witness to the solidarity that must exist between different religions, Christians, newly converted Catholics, Buddhists and Muslims of Nepal celebrated together with fellow citizens, the annual Hindu festival of Dashain, which ends today. President Rambaran Yadav, said this “leads to social harmony”, given the “unique and special inter-religious character of Nepal, thanks to the many mixed marriage families”.[6]
No further reports were located that acknowledge the prevalence of inter-religious marriages in Nepal.[7]
[1] Country of Origin Information Services Section of the Department of Immigration and Border Protection, Nepal: CI150106085547325 – Rastriya Prajatantra Party Nepal (RPP-N) – inter-religious marriage – violence against Christians
[2] Information regarding inter-religious marriage in Nepal is limited. The most accurate and credible information located is dated 2006.
[3] Immigration and Refugee Board of Canada 2006, ZZZ101050.E Nepal: Whether a foreigner married to a Nepali citizen can obtain residence status in Nepal;the treatment of couples in inter-religious marriages (2004 – 2006) Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 21 February, p. 2 < Accessed 6 February 2015 <CISBE8E6BE644>
[4] The Union of Catholic Asian News is an independent Catholic news source based in Hong Kong. According to the UCA News website ‘The aim of our reporting, which comprises a convergent media approach that couples traditional journalistic practices with multimedia and social media, is to give shape and context to the political, social and religious trends that inform all faith communities in Asia, but in particular the Catholic community.’ See <
[5] Satyal, C 2011 ‘Inter-religious altars work fine in Kathmandu’ Union of Catholic Asian News, 20 July < Accessed 9 February 2015 <CXCB3E63420569>
[6] Sharma, C 2014, ‘Dashain Festival, a moment of solidarity and harmony for all the religions of Nepal’, Asia News IT, 10 July, para. 1 < Accessed 11 February 2015 <CX1B9ECAB9743>
[7] Sources consulted included BBC Monitoring, Refworld, CISNET, Ebscohost databases, the European Country of Origin Network (ecoi.net), Worldwide Religious News, International Religious Freedom News, International Religious Liberty Association, Religion Dispatches, and internet searches.
The recent DFAT Country Report – Nepal, 21 April 2016 provides as follows in relation to Christianity, generally:
The 2015 Constitution states Nepal is a secular state, signalling a major departure from the Hindu monarchy. It guarantees freedom of religion. Religious tolerance is broadly practiced and there are no restrictions on the sale or distribution of religious material. Nepal celebrates public holidays for numerous religious faiths in addition to secular and political anniversaries. Nepal’s 2015 Constitution prohibits one person from converting another. Religious schools requesting government funding are required to register with local district administration offices and curricula for the schools is provided by the Department of Education. Each registered religious school has one government-funded teacher.
According to the 2011 Population Census, approximately 81 per cent of Nepalis follow Hinduism, nine per cent follow Buddhism and four per cent follow Islam. Christians account for 1.4 per cent of the population. Syncretic faiths encompassing elements of Hinduism, Buddhism and traditional folk practices are widespread. Hindus and Buddhists have close links. Generally speaking, religious diversity and places of worship are respected. Catholic Masses, inter-denominational Protestant services, and Jewish services run by a Rabbi are conducted in Kathmandu, reflecting its size relative to other centres in Nepal.[8]
[…]
Christianity was introduced into Nepal in the 18th century and modern Nepal is home to an estimated 150,000 Christians, including 8,000 Catholics. Nepal has dozens of Christian missionary hospitals, welfare organisations, and schools that have operated for decades free from government interference. Christians have a long and accepted place in Nepali society and are generally able to freely worship their religion without interference from the state or society. However, according to Freedom House, Christian groups can face difficulty registering as religious organisations and, as a result, can find it difficult to own land. Christians can also face discrimination in obtaining senior positions in the civil service. Some core customs and values of indigenous people (for example relating to the use of alcohol, animal sacrifice, and other animistic practices) are challenged by Christian beliefs. These can, in some cases, lead to social discrimination and exclusion between indigenous communities and Christians.
Conversion to Christianity has increased from since the 1950s. More than 90 per cent of Nepal’s Christians are from marginalised groups such as indigenous communities (such as Chepangs and Santal) or Dalits, for whom Christianity provides an escape from the caste system. There are also anecdotal reports of occasional social tension because of perceived over-zealous activities of (particularly foreign) missionaries to induce conversion through the provision of health, education, housing or employment opportunities to converts. However, a lack of empirical data makes it difficult to comment on such issues in any specific detail. Generally speaking, DFAT assesses that Hindu citizens who convert to Christianity are publicly and safely able to do so, although they may experience low-level societal or family discrimination.[9]
[8] DFAT Country Report – Nepal, 21 April 2016, paras 3.18-3.19
[9] DFAT Country Report – Nepal, 21 April 2016, paras 3.21-3.22
Interview, hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nepal, and accordingly his claims will be assessed against Nepal.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, in the interview with the delegate the applicant made no mention of a fear based on stealing money from a YCL gang and being detained and tortured by them. Instead, the applicant made a different claim that he feared harm based on his involvement in a bid for a government tender in [business] venture that involved lots of money. This evidence in the interview and inconsistent claim was put to the applicant in the Tribunal hearing in accordance with the procedural requirements of s.424AA of the Act.
In response to the issue of the applicant failing to make his original claims in the interview and to make new claims, the applicant told the Tribunal initially that he did tell the delegate about his YCL issues. The applicant then indicated that he did have the problem in relation to the [business] tender and he thought that would be a stronger case. The applicant made reference to not trusting the Nepalese government. The Tribunal questioned the applicant how that would be relevant to what he was telling the Australian government. The applicant then indicated that perhaps he forgot and that he was under pressure because he was in Australia unlawfully and going through difficult issues.
The Tribunal is not satisfied that any of these explanations adequately explain why the applicant would not have repeated in the interview with the delegate significant claims of being chased by the YCL and detained and tortured by them. The Tribunal sees no reasonable basis on which the applicant would forget such key claims or fail to elucidate them because of stress or the difficult issue of being an unlawful noncitizen.
Secondly, although in the Tribunal hearing the applicant indicated that he feared harm based on being involved in the YCL and stealing money off them, he did not indicate that he was detained and tortured by the YCL, consistent with his written claims. The applicant’s evidence was that he fled to Kathmandu after stealing the money and then came to Australia to escape harm and specifically indicated that the YCL did not harm him. When it was pointed out to the applicant that his written claims stated that he had been detained and tortured, the applicant said that this had happened prior to stealing the money. The Tribunal indicated that the written claims indicate that it happened after the money was stolen, and for the reason of the money being stolen. The applicant made reference to losing documents. The applicant also indicated that the events happened a long time ago. In response to this explanation the Tribunal indicated that the events that are claimed would be very impactful and the Tribunal did not consider that the applicant could be confused about the sequence of events. The Tribunal does not see the issue of documents being lost affecting claims as to the sequence of key events.

Thirdly, the applicant has provided false information that one of his [siblings] was chopped up and died and another was shot in the head by authorities in the name of stopping crime. In the Tribunal hearing the applicant indicated that these claims were not true.
Fourthly, the delay by the applicant in applying for the Protection visa, in the context of the applicant indicating to the Tribunal that he left Nepal due to fear from the YCL, is undermining of the truth of that claim or any other claims made resulting in a fear of harm in returning to Nepal. The Tribunal notes, in particular, the delay of 18 months following the applicant becoming an unlawful noncitizen before he applied for the Protection visa.
In the hearing, in response to this concern, the applicant indicated that he did not know that the process would work out to him. He indicated that he had a Student visa. The applicant said that he could not focus because of the issues he faced in Nepal. He referred to relationship difficulties. He indicated that he did not know he could apply while he had a valid visa. The applicant also made mention of a gambling problem which has taken over his life.
The applicant claimed in the hearing that he left Nepal to escape the harm from the YCL. Whilst the Tribunal might make some allowance for delay based on the applicant being in Australia legitimately on other visas, the Tribunal considers that, if the applicant’s claims were true, at the very least, he would have made the application for the Protection visa when he was refused a Student visa in March 2013, or when he became an unlawful noncitizen in June 2013. The delay in the application is adverse to the applicant.
The cumulative impact of these four credibility concerns cause the Tribunal to consider that the applicant has been untruthful in his claims. The Tribunal is not satisfied as to any of the applicant’s substantive claims.
The Tribunal is not satisfied that the applicant was involved in the YCL in Nepal and stole money from a YCL gang and was detained and tortured by the YCL, or that the YCL have an ongoing desire to find and harm the applicant. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on these grounds. The Tribunal is not satisfied that the applicant was involved in a tender for a [business] venture which resulted in a real chance of the applicant facing serious or significant harm.
Despite the Tribunal asking the applicant in the hearing for comprehensive reasons as to why he feared harm in returning to Nepal, he made no mention of previous claims of a risk of harm based on him having a prior relationship with a Christian woman. When this omission was pointed out to the applicant, he indicated that he did have such a fear in Nepal from the family of this woman. He said that there are many claims in seeking to explain why he did not mention or remember this one. Although the applicant indicated the relationship had ended prior to him coming to Australia, he stated that her family still have a grudge against him because the relationship ultimately resulted in this woman marrying a person that her family did not approve of. The applicant made reference to calls threatening harm to the applicant which could have been from her family or from Maoists.
The Tribunal discussed with the applicant the independent information contained in this decision concerning Christianity in Nepal, including the attitude towards interreligious marriages and conversion to Christianity. Although this does not specially deal with interreligious relationships, it deals with the associated and relevant issue of interreligious marriages and attitude towards Christianity generally. The Tribunal indicated that, although it might accept that there may be some concern by families in relation to an interreligious relationship, there is not independent information before the Tribunal that would suggest that parties in such relationships were at a real chance of persecution or significant harm based on such relationships. The applicant maintained the risk of harm from this woman’s family.
Given the significant credibility issues in relation to the applicant, including the failure by the applicant to repeat this claim in the Tribunal hearing, the Tribunal is not satisfied that the applicant truly fears harm from the family of a Christian woman with whom he was in a past relationship of that there is a risk of harm to the applicant from the family. Given that the relationship is ended, such a claim is not plausible, including in light of country information concerning attitudes towards Christianity. The Tribunal is not satisfied that the applicant has been threatened by the family of his former partner after the relationship ended (or by Maoists). The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm from the family of a Christian woman with whom he was in a past relationship.
In the hearing applicant indicated that he faced difficulties because of the 2015 earthquake and that the home of his [relative] had been destroyed. The Tribunal noted to the applicant that he was an adult and would be able to obtain employment in Nepal and rent accommodation. The Tribunal indicated that it did not consider that the situation of his [relative]’s home being destroyed would lead to a real chance of the applicant facing serious or significant harm. The applicant acknowledged that he would not face such harm on this basis. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a consequence of the earthquake in Nepal in 2015 and its aftermath.
The Tribunal discussed with the applicant in the hearing prior claims that he would be at risk of harm based on generalised violence in Nepal. The Tribunal noted that the basis of this claim was the harm suffered by his [siblings] which the applicant had indicated was not true. The applicant indicated that he was not making a claim of harm based on generalised violence in Nepal. He indicated that the risk of harm was based on the other specific factors mentioned. For the avoidance of doubt, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of generalised violence in Nepal.
In summary, the Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm for any of the reasons claimed, or for any other reasons.
In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.
In summary, in relation to the complementary protection criterion, 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 Nepal, there is a real risk that he will suffer significant harm for the reasons claimed, or for any other reasons.
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.
David McCulloch
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 1441

2 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction