1513867 (Refugee)

1513867 (Refugee) [2017] AATA 1525 (29 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1513867
COUNTRY OF REFERENCE:                  Czech Republic
MEMBER:Roslyn Smidt
DATE: 29 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 August 2017 at 3:36pm

CATCHWORDS

Refugee – Protection visa – Czech Republic – Particular social group – Divorced women – Effective state protection – Denial of welfare and utilities – False charges – Eviction from home – Dismissal from employment – Corruption – Legal redress

LEGISLATION

Migration Act 1958, ss 5(1), 36, 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] September 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who are citizens of Czech Republic, applied for the visas [in] April 2015. The delegate refused to grant the visas on the basis that the applicants are from a country belonging to the European Union and had access to protection outside the Czech Republic.

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.
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.

BACKGROUND

The applicants are [an age] year old widowed mother Ms [name], (applicant A) and her single daughters, [name] aged [age] (applicant B) and [name] aged [age] (applicant C). Until 1991 they lived in the former Soviet Union in an area which formerly belonged to Czechoslovakia and is now part of [Country 1]. In 1991 they relocated to Brno in what is now the Czech Republic. Applicant A’s husband died in [year] and they have no surviving relatives that they are aware of in the Czech Republic.
The applicants left the Czech Republic [in] December 2012 and travelled to [another country] where they remained for several days before travelling on to [Country 2]. They resided in [Country 2] until [April] 2015 when they travelled to Australia on [temporary] visas. In [Country 2] they lived on their savings, then on emergency assistance provided by the [Country 2] government and finally on a lump sum pension payment to applicant A.

APPLICANT’S CLAIMS AND EVIDENCE

The applicants claim that they have suffered abuses and were denied rights by the Czech authorities for many years and fear that they will face similar problems if they return to the Czech Republic.
Applicant A graduated from university in [year] and worked as a [professional] until she retired in [year]. At the hearing it was established that she [worked] from her home in Brno until shortly before her departure from the Czech Republic in 2012. She also received a pension at some time. Exactly when this began and how long it continued is unclear.
At the hearing Applicant A claimed that she had been denied a pension for 5 years prior to her departure from the Czech Republic. She said that she was not given any reason for this. She complained repeatedly to the relevant bodies, but without success. After arriving in [Country 2] she went to the Embassy of the Czech Republic and someone helped her to lodge a complaint and demand for her pension. After some time she was told that the pension, or part of the pension, had already been paid to her, which was not true. At some point she received a payment of about [amount] kurona (about $[amount] at current exchange rates), which was half of the money she believed she was owed. She did not receive any further pension payments in [Country 2]. She used part of this money to pay for tickets to Australia.
Applicant B is [an age] year old single woman. She obtained a [subject] degree in [City 1] and worked at [workplace] there until the family moved to Brno. In Brno she worked for [Agency 1]. Her boss in Brno asked her to provide him with a car which she understood to be an attempt to extort a bribe so that she could keep her job. She refused and she was dismissed in [year] on the order of the Director. Her boss told her that the Russian KGB had ordered dismissal. She was not given any other reason and no formal notice of dismissal was provided. She went to the [professional organisation] for help, but she was told that she should complain to the local court. She took her case to the local court in [year] and then to the Constitutional Court and in 2007 went to the European Court of Human Rights in Strasbourg (France). None of these courts has made decision on her case. Later in the hearing she added that she had taken her case to The Hague[1] claiming that she had suffered a crime against humanity, but all she had received was an acknowledgement slip.
[1]It is not clear which court the applicant was referring to.
At the hearing I asked Applicant B if she had looked for another job after [that year]. She said that her case was before the court and she was waiting for a decision. After some discussion it was established that she had approached a private [business] on one occasion but was told that despite being better qualified that other employees she was not wanted. She also applied unsuccessfully for a room to establish a private [business]. Apart from that she did not seek employment in her profession or any other field because she was qualified as [an occupation 1] and she had a valid contract which she believed entitled her to the position she had held until [year] or similar position and she believed that it was up to courts to provide a solution for her. When asked if there was anything that would have prevented her from seeking employment in another field she repeated that she had been unfairly dismissed and had gone to the courts for assistance. I advised her that while she may have been unfairly dismissed this alone did not appear to amount to serious or significant harm as she did not appear to have been denied the right to employment or to earn a livelihood. She repeated her view that she was entitled to an appropriate job in her profession.
I advised Applicant B that it was my understanding that women in the Czech Republic were currently entitled to a pension when they reached the age of 62.[2] She said that this was not correct. She said that childless women were not entitled to a pension until they were 70 years old and in any event, she would not apply for a pension as she had good qualifications and she was entitled to a job in her field and would continue to insist on her rights.
[2] Public Pensions - >
Applicant C is [an age] year old single woman. She obtained a [subject] degree and [worked] in [workplaces] in [specified localities] and Brno until 2000 when she claims she was dismissed despite having a valid contract. She was never given a reason for her dismissal. She filed a case against her employer at the local court in Brno in 2000, the Constitutional Court of the Czech Republic in 2007 and the International Human Rights Court in Strasbourg in 2007. She claims that no decision had been made by any of these courts at any time. She claims that she is entitled to receive an income from her employer during this process, but she has not received an income of any kind from anyone since 2000.
At the hearing I asked Applicant C if she had sought other employment or investigated other means of earning a livelihood after losing her job. She responded that her case was before the court and she was waiting for a decision. After some discussion it was established that she had not looked for another means of earning an income. I advised her that it did not appear that she had been denied a right to work or to derive an income and observed that with her qualifications and language skills it appeared that she could have found work elsewhere. The applicant insisted that she had a right to the job for which she had a contract and that she was waiting for a decision on the case or cases relating to this job.
I advised applicant C that it was my understanding that women of her age in the Czech Republic were entitled to a pension. She maintained that she would not receive a pension if she returned to the Czech Republic.
The applicants purchased a house at [Address 1] in Brno in 1998 with money which Applicant A had obtained from the sale of a family home in what is now [Country 1]. At the hearing Applicant B explained that the family lived on one of the four floors in the building and there were a number of separate units on the other floors. To begin with some of the other units were rented, but the earnings were always small. By the time of the robbery none of the other units were occupied. At the time the applicants were repairing and renovating the units with a view applicant B using the ground floor for [an occupation 1 business] and to earn rental income from the others. She stated that the family had not taken out a mortgage to purchase the home or borrowed money for the renovations.
The applicants have consistently claimed that a group of men broke into the building [Address 1] on [a date in] July 2012 packed up all of their possessions and forced them out of their home.
At the hearing Applicant B said that about 10 men entered the building while another 10 remained outside. They broke the doors of all the units. When the men broke into her home Applicant B called the local police and they came to the house. The man in charge of the robbers showed them his identity card and after that the police left. I asked if the man had shown the police any documents which showed or purported to show that he had a right to enter their home and take their possessions. She said that the only document he had shown the police was his ID. She said that after the police left she contacted police headquarters in Prague and the office of the President in Prague, but they told her that the local police had responsibility for investigating the situation. She also contacted the local media, but nobody came. Later she and her family contacted the prosecutor and lodged a complaint. Following this, a notice was placed on the door of the building forbidding entry to everybody. At some time they also made a complaint to the Ombudsman, but still did not receive proper assistance. After being forced from their home the applicants lived outside or in a shed.
Applicant A and C confirmed that this account of events was correct. They have also provided photographs of men packing up their possessions and of themselves living in what appears to be a shed.
It appears that the case relating to the incident [in] July 2012 has yet to be resolved and that the matter was included in the family’s complaints to the European Court of Human Rights and The Hague. At the hearing Applicant B said that the complaint to these courts also related to invented cases. I asked her to tell me about these invented cases. She said that the cases were based on lies and added that after the family had been forced out of their home in 2012 her mother and sister had received a demand to pay [amount] koruna (about $[amount] at current exchange rates), but it was an invented claim. In December 2012 another judge sent a demand to her mother. She was unable to provide any information about who had made the claim or why.
Later in the hearing I asked applicant A and applicant C about this debt. Applicant C said that the family had received a letter from the Court, but she could not provide any details. Applicant A confirmed that the letter was from a Court. She maintained that the claim was based on lies and an invented debt. I asked if she had gone to the Court to contest the claim. She said that she would not respond to liars and she had not gone to the Court.
At the hearing Applicant B confirmed that she and her family still owned the property [at Address 1]. I asked if anyone else had any legal claim to the property or was attempting to make a fraudulent claim of ownership of the building. She said that she and her family owned the building and held the title deeds. She said that after the robbery they decided to sell the house. They did not take any steps to arrange this prior to leaving the Czech Republic because the thieves had changed the locks and they were waiting for the prosecutor in Brno to resolve the case, but nothing had happened. She added they now needed international lawyers to help them with the sale. Applicant A and applicant C agreed with this account of events.
I advised the applicants that I was not aware of any evidence which suggested that the Czech authorities would ignore a case of daylight robbery such as they were claiming and suggested that from their description of events it appeared that the men had a genuine or perhaps fraudulent document which suggested that they had a right to enter their home and take possession. The applicants maintained that the men who entered the home had no such documents.
In addition to the claims set out above the applicants also claimed at different times that they had experienced problems with the Czech authorities who cut off power and other services while they were living in a council flat prior to 1998, that they were fined [amount] kurona for complaining about inaction by the courts, that they had received a threatening letter saying that they would never be left alone and that Applicant A’s husband had experienced persecution similar to the problems that they had faced prior to his death in [year]. Attempts to clarify when or why these events occurred were largely unsuccessful.
At the end of the hearing I advised the applicants that it was my understanding that they were claiming that they had been unfairly treated and denied rights by the authorities in the Czech Republic and that they feared similar harm if they returned to their homeland. They confirmed that this was correct. I asked why the authorities wished to harm them. They said that they did not know, but suggested that the authorities might have benefited in some way.
Prior to the hearing the applicants provided a copy of the delegate’s decision on their cases which they claimed contained many factual errors, including the recording of an incorrect date for their interview. I explained that my role was to consider all of the evidence relating to their case and make a new decision. I also observed that the recording of the incorrect date appeared to be a simple error. They insisted that the delegate had lied in her decision and appeared to be convinced that this was done for a malicious reason. They also complained that someone from [Agency 2] (which was providing them with assistance at the time) had claimed that they owed a lodge $[an amount] for their accommodation, which was not correct. I observed that this was probably a simple mistake or misunderstanding, but they insisted that this was not the case.

FINDINGS OF FACT AND ASSESSMENT OF CLAIMS

The applicants chose to provide the evidence without the assistance of an interpreter. They all speak English well and there was nothing which suggested that their ability to provide evidence was hampered by problems with language. However, their determination to provide an account of perceived past wrongs sometimes resulted in difficulties obtaining evidence as they insisted on repeating irrelevant details and were reluctant to provide clear answers to some questions.
In assessing applicant A’s claims I have also taken account of her age. However, there was nothing in the manner in which she provided her evidence which suggested that her age had a significant impact on her ability to present her claims.
The applicants complained a number of times that they were not being given a proper opportunity to provide evidence. I explained that not all of the matters they were raising were relevant to their case and that I needed to ensure I received the information I needed to assess their case. At the end of the hearing I gave them all an opportunity to provide any additional information they wished. They spoke about their dissatisfaction with the delegate’s decision and repeated earlier claims, but failed to provide any new relevant evidence.
The applicant’s clearly have a strong sense of injustice and I accept that they genuinely believe that they had been treated badly and denied rights in the Czech Republic for some reason. However, I found much of their evidence unconvincing and implausible and I did not find them to be credible witnesses.

By way of background, reports indicate that government petty corruption is prevalent in the Czech Republic. According to a 2012-2013 survey, 15 per cent of households who had been in contact with eight government services in the previous year reported paying bribes for medical and health services, and one per cent reported paying bribes for utilities. There are also reports of police taking bribes. However, reports also state that the judiciary is largely independent, and the rule of law generally prevails in civil and criminal matters, that Czech Republic government agencies investigate and prosecute corruption by officials and police and that those prosecuted have included senior politicians and public servants who have been charged for corruption.[3]
[3] See overview in Czech Republic: Corruption and state protection Thematic briefing Country of Origin Information Services Section (COISS) Refugee and Humanitarian Programme Branch 17 January 2017 pp1 & 2 and Czech Republic–Country Report on Human Rights Practices 2016’, US Department of State, 13 April 2017
I accept that applicant A was in some kind of dispute over payment of a pension. However, the evidence she provided regarding this pension was confused and she has failed to provide any convincing evidence which supported the claim that she was denied her pension as a result of ill-will or dishonesty on the part of Czech officials. I note that evidence provided at the hearing indicated that she is quick to assign malicious intent in situations where there are more rational alternative explanations. For example, she insisted that the delegate had recorded the date of her interview incorrectly intentionally and appeared to be convinced that this was done to refuse her application. I also note that according to the evidence she provided at the hearing she was assisted by Czech officials at the Embassy in [Country 2] and succeed in obtaining payment of some of the money she believed was due to her. In these circumstances I am not satisfied she was denied a pension or pension payments to which she was entitled because the Czech authorities wished to harm her or that any problem she may have faced in relation to payment of her pension in the past indicates that she faces a real chance of suffering serious or significant harm as part of a pattern of malicious actions against her and her family by Czech authorities if she returns to her homeland in the reasonably foreseeable future.
With regard to the claims of unfair dismissal, neither applicant B and C has provided a convincing account of the circumstances in which they lost their jobs in [year] and 2000 and I am not satisfied on the evidence provided that either of them lost their jobs as a result of animosity or some kind of campaign against them and their mother by the Czech authorities or anyone else. Furthermore, even if I accept that they were unfairly dismissed, there is nothing in the evidence before me which suggests that they were denied the right to work or to earn a livelihood following the loss of these jobs. It is clear from the evidence provided at the hearing that neither of them made any real attempt to find another job or an alternative source of income, choosing instead to await the result of cases they had taken to various courts. In these circumstances I am not satisfied that the loss of employment by other applicant amounted to serious or significant harm or that it suggests that they would face a real chance of suffering serious or significant harm at the hands of the Czech authorities or anyone for any reason.
I found the applicant’s account of the July 2012 invasion and robbery at their home unpersuasive. It is not plausible that a gang of some 20 robbers would mount an attack on their home in broad daylight in order to take what they themselves described as items of limited value. It is not plausible that the police would respond to the applicant’s call for assistance and then leave merely because the person in charge of the thieves had identified himself. It is not plausible that nobody in authority in the Czech Republic would pay any attention to their situation despite the fact that they had photographed the event. It is not plausible that the thieves would have been able to deny the applicants entry to their home merely by changing the locks if, as they claim, ownership of the property was not in dispute. I can think of no plausible reason why anyone would have locked the applicants out of their home after removing all of their possessions if they were not also attempting legally or fraudulently to obtain ownership of the home or to enforce payment of a debt.
For the reasons set out above, I do not accept that the applicants have provided an honest or complete account of the events of [the date in] July 2012. I accept that they were evicted from their home and that their possessions were taken for some reason. However, on the evidence before me I am not satisfied that this was a robbery or that neither the police or the courts or anyone else in the Czech Republic would protect them from the perpetrators of this crime or provide them with any assistance. In the absence of a credible, coherent account of the reasons why the applicants were evicted or forced from their home I cannot be satisfied that this incident can be characterised as serous or significant harm or that it is evidence that they face a real chance of experiencing serious or significant harm if they return to the Czech Republic in the reasonably foreseeable future.
I have considered the applicants’ claim that invented claims or cases have been lodged against them. The only specific example of such cases provided is the claim that they had received letters from a court after they were forced from their home which contained false claims that they owed money to someone. I found their evidence regarding these demands unconvincing. None of them were able to provide any information about who had made the claim or the nature of the debt which they were supposed to have accrued. I find it difficult to accept that a letter of demand issued by a court would not have provided some indication of the nature of the debt, who had made the claim and why claim was accepted by the court. Furthermore, I find it impossible to reconcile applicant A’s evidence that she had not considered responding to the court letter and at least attempting to prove that the claims were false. According to the evidence which she and her daughters provided they were not unfamiliar with court processes and there is nothing in the evidence which suggested that they would have been unable to contest the claim had they chosen to do so. They did not claim to lack confidence in the court, but said she would not respond to the letter because it contained lies.
For the reasons set out above and in light of my findings on other aspects of the applicants’ claims, I am not satisfied that the applicants have provided a complete or accurate account of the situation which resulted in them receiving these letters from the court or that the letters are evidence of a campaign of abuse or discrimination against them by the Czech authorities or anyone else in the Czech Republic.
In considering the applicant’s case I have noted that it appears that they may have been left homeless for some reason after July 2012. While homeless does not necessarily give rise to a claim for protection or a request for the Minister to consider exercising his discretion and allow them to remain in Australia, I have considered whether they might face a similar situation if they return to the Czech Republic. However, it appears that they are entitled to pensions from the Czech government. Furthermore, if I accept their evidence at face value they appear to own a large building in Brno which is free from debt and would provide them with some financial resources if it was sold. In these circumstances I am not satisfied that they would face homelessness or destitution if they returned to the Czech Republic.
After considering all of the relevant evidence I am not satisfied that any of the applicants suffered serious or significant harm from the Czech authorities or anyone else in the Czech Republic prior to their departure in December 2012.
After considering all of the applicants’ claims both individually and cumulatively, for the reasons set out above I find that the applicants do not have a well-founded fear of persecution for any reason set out in 5J(1)(a) either now or in the reasonably foreseeable future or 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 the Czech Republic, there is a real risk that they will suffer significant harm.

CONCLUDING PARAGRAPHS

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Roslyn Smidt
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

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.
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.
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.
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.
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.
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

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.
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 1525

29 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction