1514117 (Refugee)

[2018] AATA 1362

1514117 (Refugee) [2018] AATA 1362 (11 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514117

COUNTRY OF REFERENCE:                  Germany

MEMBER:Frances Simmons

DATE:11 January 2018  

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2018 at 6:37 pm

CATCHWORDS

Refugee – Protection visa – Germany – Race – Mixed race children – Fear of kidnapping – Victim of sexual assault – Spiritual warfare – Voodoo witchcraft – Fear of societal discrimination – Third country protection – Credibility issues – New claims raised at hearing

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). There are three applicants: a mother and her two infant children.  The applicants applied for the visas [in] February 2015.  The delegate considered that, as citizens of the European Union, the applicants could obtain protection in a safe third country. The delegate concluded that the applicants were not persons to whom Australia owed protection.

2. [The first named applicant] appeared before the Tribunal alone. The Tribunal explained the refugee and complementary protection criterion. The Tribunal explained that pursuant to s 36(3) of the Act Australia is taken not to have protection obligations in respect of a person who has a right to enter and reside in any other country – whether permanently or temporarily – and has not taken all possible steps to avail herself of that right. The Tribunal explained that s 36(3) does not apply in the circumstances described in s 36(4), s 36(5) and s36(5A) of the Act.

BACKGROUND

1. The applicants are all German citizens. All three applicants were born in [City 1], a city in central western Germany. According to information in her protection visa application the applicant has lived in [City 1] since 1999 and, between 2010 and November 2014, she lived at the same address in [City 1].[1] The applicants all hold current German/European Union passports which are valid for ten years.

   [1] Departmental file, folio 26.

2. The applicant is a single mother. She is responsible for the care of her two children, [age] and [age]. In her application, she described her most recent job as [occupation] and she stated that she receives monthly child support payments from Germany. When she appeared before the Tribunal she advised that she no longer receives such payments as she is in receipt of asylum seeker assistance.

3. The applicant declares that she has previously travelled to various different [countries].[2] In January 2010 she was granted a [temporary visa], which was valid until January 2011. She travelled to Australia [in] January 2010 and departed Australia [in] February 2010.  In March 2011 she applied for and was granted another [temporary visa] which was valid until [date] March 2012. The applicant returned to Australia in March 2011 and departed in April 2011.

   [2] Departmental file, folio 27.

4. The applicants arrived in Australia [in] November 2014. They applied for a protection visa [in] February 2015.

Summary of claims before the Department

1. The applicant claims that her son, [the second named applicant] will be kidnapped by his father (Mr X) or his family. She claims that they live in constant fear and that her children will not be able to live normal lives in Germany. Protection cannot be guaranteed; even schools have no fences. She has tried to move to a different house, but she could not leave the country because she was taking care of her sick [relatives]. They both passed away and she has no close living relatives in Germany.

2. The applicant identifies the people she fears as ‘the father’ and the ‘family of his father’ who she states ‘come from Africa’. She stated they moved to another house, but they couldn’t leave the city as she was taking care of her [relatives]. Moving to another city was not enough as ‘they can find you everywhere’.  She also she fears ‘robbing and social discrimination’.

3. The applicant submitted a letter from a lawyer dated [August] 2015.  This letter, which is addressed to the applicant and written on the letterhead of a German family lawyer, confirms that the applicant visited the lawyer’s office after the birth of [the second named applicant]. The reason for this visit was that the father of her child had threatened her during the pregnancy and thereafter and spoke of death threats. The applicant had ‘huge fears’ concerning her newborn child. The lawyer indicates that she was given [legal documents]. Also, the German Youth Welfare office was informed. The applicant’s state of fear continued in the following years and her safety could not be guaranteed one hundred per cent.

4. The applicant told the delegate that she believes that the applicant’s father is [from an African country] and that he is an asylum seeker in Germany. She is not sure where he is or if he ever had residence status in Germany. She fears that he or his family could take [the second named applicant] away from her illegally because border controls are weak in Europe.

Summary of claims before the Tribunal

1. In a lengthy statement submitted to the Tribunal the applicant claims that she left Germany in November 2014 because she fears Mr X, a man who she believes could be the father of her eldest son, will harm her and her children.[3] She claims that the ‘main reason’ that she left Germany is the ‘significant ongoing life threatening behaviour via an African man towards me’. She claims that this problem ‘started about 9 years ago’ when she met Mr X in Germany. She claims that she now knows that Mr X was ‘trying to impregnate a German woman to get his residency in Germany’. She claims that  to ‘reach his goal he lied, betrayed, manipulated, harmed, bullied, abused & raped me’. When she appeared before the Tribunal she gave evidence that she did not know Mr X’s real name and described him as an asylum seeker of African descent who was known to her as ‘[name deleted]’.

   [3] Tribunal file, folio 75-78

2. The applicant claims that when she discovered she was pregnant she was not sure whether the father was Mr X or ‘a boyfriend also of African descent’.  She decided to keep the child. Her relationship with her boyfriend broke down and Mr X started to contact her. The more she blocked him, the more aggressive he became. She now knows that he was a member of the Blood Gang, which is very common in America. She claims that he is a dangerous criminal who deals drugs and the people who work for him are drug addicts who do what he wants and she is afraid they will harm her. She claims that she spoke with her lawyer as well as the police. She recorded his phone calls and showed them to her lawyer.

3. The applicant claims that Mr X wants to kidnap her eldest son. She claims that Mr X ‘started to use Spiritual Warfare’ against her and her children and that this is ‘still an ongoing process’. She claims she now knows this spiritual warfare started when she was pregnant with [the second named applicant]. She claims that Mr X wants her to die and tries to ‘destroy her life’ and her children have suffered because of this.  She claims that she was bullied in the ‘African scene’ and Mr X turned people against her. She claims she moved house and tried to start again but it didn’t work.

4. The applicant claims that there were rumours that Mr X wanted to kidnap her son.  She requested the police investigate his business. She tried to move to [Country 1] ‘several times’ but had to return to care for her sick [relative] in Germany. She also went to Australia twice. She tried to get help from spiritual experts but nobody was really able to help them. She was advised the only way to get away from the voodoo influence was to go far away. She claims that the voodoo Mr X is doing to destroy her will be stronger if she returns to Europe.

5. In her written claims the applicant also claimed that she had been raped on another occasion, before she fell pregnant with her second child. She also claims that when she fell pregnant with her second child her boyfriend threatened to kill her if she kept the child but she disconnected all contact with him.

6. In her written claims the applicant claims that if she returns to Germany with her children they will be homeless without any financial support and help. She claims that she has no family in Germany who could provide her with support or help them with a house. She claims that there is nobody in Europe who will help and that their lives are in imminent danger if she returns home.

7. The applicant provided the Tribunal with a copy of the delegate’s decision. This copy is marked with the applicant’s comments, which the Tribunal has read. The Tribunal has also considered the various letters and documents the applicant has submitted to the Department and the Tribunal (some documents have been submitted twice). Additional documents submitted to the Tribunal include:

   a.Support letters from members of the Australian community (including from the teacher of the second named applicant and two people who are interested in employing the applicant); various photographs of the infant applicants; information concerning arrangements for [the third named applicant] to attend [school]; and the school reports for [the second named applicant].

   b.A letter from [Hospital 1] dated [October] 2015 concerning the third named applicant (it addresses the following issues: [medical conditions deleted]) and a medical certificate from [a doctor] dated [July] 2017. 

   c.A support letter from [Father A], an assistant Priest at [Church 1], [Australian Suburb 1]; a letter from [Church 2] dated [July] 2017 confirming the applicant has met twice with a pastoral leader; an email from a self-identified American psychic; and information about ‘black magic’ symptoms and ‘voodoo witchcraft’.

8. In an additional statement the applicant states that she funded her travel to Australia with her savings. When she arrived in Australia she had approximately $2700 in cash. She now has no savings left and no assets in Australia or overseas. She does not have any family support in Germany. She does not have any contact with the fathers of her children, they cannot support her, and do not know that she is in Australia.

9. Where relevant her evidence is discussed further below in the Assessment of Claims and Evidence.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

6. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

   (a) the country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

7. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

Mandatory considerations

1. 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.

ASSESSMENT OF CLAIMS AND EVIDENCE

Nationality

1. The applicants entered Australia holding German passports, copies of which appear on Tribunal file. The Tribunal accepts that the applicants are nationals of Germany and have assessed their claims against Germany

Whether the applicant’s claims are credible

1. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims and the claims she has made on behalf of the infant applicants, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5] In this particular case, the Tribunal is mindful of the impact of traumatic events, including sexual violence, upon the applicant’s capacity to give evidence.

   [4] MIMA v Rajalingam (1999) 93 FCR 220

   [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

2. Having carefully considered all the evidence that has been presented to the Department and the Tribunal, the Tribunal accepts the following matters.

   a.The applicant was born in [City 1], Germany on [date]. She has lived in Germany for most of her life. She is the mother of the second named applicant, who was born in [City 1] on [date], and third named applicant who was born in [City 1] on [date].  The infant applicants are of mixed race.

   b.The applicants are all German citizens. As the applicant acknowledged at the hearing, by virtue of their German citizenship, they are also citizens of the European Union. As a result the applicants have a right to enter and reside in any of the countries in the European Union.

   c.The applicant is raising her two children as a single mother. The infant applicants have different fathers. The birth certificates of the infant applicants do not identify the father of either child. The applicants do not have any contact with either father. Neither father is, or has been, involved in the care of their child.  

   d.The applicant’s younger son suffers from [a medical condition] and he was hospitalised shortly after he arrived in Australia. [The second named applicant] attends a [school] in Australia and [the third named applicant] has secured a place in [school].

   e.Since [the second named applicant] was born in [year], the first and second named applicants have travelled to Australia twice (in 2010 and 2011). On both occasions the applicant departed Australia before her [temporary visa] expired. The applicants last arrived in Australia in November 2014. The applicant has also travelled to [Country 1] twice with the second named applicant.

   f.The applicant’s relationship with [the third named applicant]’s father ended badly and he is longer in the applicant’s life (in her written claims she stated her threatened to kill her when she fell pregnant but she disconnected contact with him). When she appeared before the Tribunal the applicant did not make any claims to fear harm from the father of [the third named applicant].

Claims that the applicants will be harmed by Mr X

1. For the purpose of this decision, the Tribunal is prepared to accept that Mr X exists and that the applicant believes that he may be the father of [the second named applicant]. The applicant testified that the question of who fathered [the second named applicant] had ‘never been cleared up’ and no-one was listed on the birth certificate. She told the Tribunal that she had interviews with the government department: the father had the right to say he was father but this man was an asylum seeker who couldn’t work; she suggested that this is why he never legally claimed to be the father. Although the Tribunal has serious concerns about the applicant’s credibility as a witness, the Tribunal is prepared to accept that in around 2008 she was a victim of rape and she believes that the man who raped her, Mr X, may be the father of her eldest child. The Tribunal is also prepared to accept that around the time the rape occurred Mr X was physically abusive to the applicant and that, after she fell pregnant, he attempted to contact her and made verbal threats against her. The Tribunal accepts that the applicant saw a lawyer when her eldest son was a newborn and reported the father of her child was threatening her. 

2. However, on the evidence before it, the Tribunal is not satisfied that these threats continued in the years after [the second named applicant] was born or that the applicants left Germany because [the first named applicant] was afraid that Mr X would harm her or her children. The Tribunal has significant concerns about the applicant’s credibility as a witness: her evidence shifted significantly over the course of the protection visa application process and the Tribunal found important elements of her evidence to be limited to vague and unsupported generalisations, lacking in any specific detail and highly speculative. Before the Tribunal, the applicant claimed for the first time that Mr X had sexually assaulted her and that he had subjected her, and her children, to spiritual warfare. The applicant claimed, improbably, that she did not know Mr X’s real name but that she knew him as ‘[name deleted]’ (she stated that ‘like a lot of African people he used several names’).  Despite claiming she did not know his name, she claimed Mr X had a criminal record and was involved in dealing drugs.

3. The Tribunal notes that the identity of [the second named applicant]’s father is not listed on his birth certificate and the applicant gave evidence that Mr X never legally claimed to be the father of [the second named applicant]. The Tribunal finds it strains credulity that Mr X threatened to kill the applicant when she refused to put his name on [the second named applicant]’s birth certificate and spread rumours about her amongst mutual acquaintances, but that he had never told her his real name and, despite her ongoing fears that he will harm her/kidnap her eldest child, she still does not know his real name. She claimed that he was using spiritual warfare as a weapon so people would think that she was crazy and when she was out of the way he would claim to be the father. Overall, the Tribunal found the applicant’s evidence about Mr X to be vague and lacking in any persuasive detail about the threats she claims the Mr X posed to her and her children in the years immediately before the applicants left Germany in November 2014.

4. The Tribunal finds that the applicants did not have any contact with Mr X at the time they left Germany in November 2014. The applicant’s evidence is that Mr X never took any legal steps to assert that he is the father of [the second named applicant] and nor is there any evidence before the Tribunal that he has ever had any contact with [the second named applicant]. Furthermore, while the applicant has claimed that Mr X wants to kidnap her eldest son, the Tribunal is not satisfied that Mr X has ever actually attempted to kidnap or otherwise harm [the second named applicant]. Before the Department [the first named applicant] gave evidence that she did not know where Mr X was residing and in a written statement provided to the Tribunal she stated she had no contact with either [the second  named applicant]’s father or [the third  named applicant]’s father.  Asked by the Tribunal when she last saw Mr X, she told the Tribunal it was more than three years ago, but she did not speak to him on this occasion. When asked what happened on this occasion, she claimed she was working [he] tried to make her lose her [job]. However, when she was questioned further, she told the Tribunal that she held this job up until she left Germany. 

5. In the Tribunal’s view, the fact that the applicant continued to live and work in [City 1] after the birth of [the second  named applicant] and until the applicants travelled to Australia in November 2014 undermines her claims that she fears that Mr X will harm her and/or kidnap her eldest child.  The Tribunal has considered, but does find not persuasive, the applicant’s evidence that she changed her life so the only place that [the second  named applicant] was alone was at [school]; that she was constantly watching [the second  named applicant]; that she had ‘proofs from people’ that Mr X was planning to kidnap him; that the danger ever present and that the spiritual attacks meant she became sicker and more isolated and eventually, as she got more into spiritual knowledge, she realised the only thing she could do was go. The applicant’s evidence indicates that she lived in [City 1] at the same address between 2010 and 2014 and that, after [the second named applicant]’s birth, she travelled in and out of Germany on multiple occasions to Australia and [Country 1]. As the Tribunal put to the applicant her son was born in [year], [number] years ago, in her home town in Germany, she had not moved to another part of Germany, she had travelled in and out of Germany to [Country 1] and Australia and she hadn’t sought asylum elsewhere.

6. The Tribunal does not accept that the applicant was living in fear of her son being kidnapped and that she had no real freedom because she couldn’t leave her son. When asked why she believed her son was in danger of being kidnapped by Mr X, she responded that she had heard this from ‘several people’ and suggested it was because he had no access to them anymore. He planned to impregnate her so he was safe in Germany and to put his name on the birth certificate. He raped her and when she refused to put his name on the birth certificate he started to threaten her, he threatened to kill her, he told her the only thing that matter was the child. He thought the child was the reincarnation of his dead father.. However, even if it is accepted that the applicant was threatened by Mr X when [the second named applicant] was a newborn, the applicant’s evidence indicates that she lived in [City 1] with her son [the second named applicant] from [date] until November 2014. Her second son [the third named applicant] was born in [City 1] in [year].  The applicant has not presented any credible evidence that, between [date] and 2014, Mr X actually attempted to kidnap or to otherwise harm or contact [the second  named applicant]. 

7. The only evidence that the applicant has submitted corroborating her claims that she has been threatened by Mr X is a letter, purportedly from a German family lawyer, which indicates that the applicant reported her concerns about the father of her newborn child when [the second named applicant] around the time that [the second  named applicant] was born. This letter does not specifically refer to her claims that she fears that Mr X will kidnap [the second  named applicant], nor does it provide any detail about any threatening action or conduct engaged in by Mr X in the years immediately before the applicants travelled to Australia in November 2014. While the letter does state that the applicant’s safety cannot be guaranteed it does not provide any details about why she is still in danger in 2015. The applicant has claimed that she reported her fears to the German police around the time [the second  named applicant] was born and that most of the time her lawyer spoke on her behalf to the police, but the lawyer’s letter does not specifically refer to reporting the applicant’s concerns to the police. Furthermore, as the Tribunal put to the applicant, she has not submitted any official documentation from the German police. In any event, even if it were accepted that the applicant or her lawyer reported the applicant’s concerns to the police in 2009, the Tribunal is not satisfied that Mr X physically harmed or otherwise threatened any of the applicants in the years immediately before they left Germany in November 2014.

8. In the Tribunal’s view the applicant’s migration history is inconsistent with her claims to fear harm in Germany, either because she fears that she will personally be harmed by Mr X and/or his associates or because she fears that her eldest son will be kidnapped or otherwise harmed. The applicant’s evidence was that after the birth of [the second named applicant] she travelled to [Country 1] on several occasions but she was still anchored in Germany as her son was in preschool, she had a house, and she cared for her [relative]. However, she claimed that she did not feel safe in [Country 1] as there are weak borders in Europe and she believed Mr X could find her. Asked whether anything happened to her whilst she was in [Country 1], she said yes, she had information that Mr X was looking for them and she could feel that he was watching her wherever they were going. She claimed she felt scared going back to Germany. The Tribunal does not accept the applicant’s evidence that she was travelling from ‘protection space’ to ‘protection space’ and that she tried to relocate by moving to [Country 1] but that she did not feel safe in [Country 1] and the spiritual attacks continued.

9. The Tribunal finds the fact that the applicant voluntarily return to [City 1] from [Country 1],  despite being entitled to enter and reside in any one of the 27 other countries in European Union, indicates that she was not, in fact, afraid of being harmed in her home area in Weisbaden. The Tribunal rejects, as contrived and lacking credibility, her claims that she believed she was being watched by Mr X in [Country 1]; her own evidence indicates that she travelled to [Country 1] on multiple occasions and returned to Germany voluntarily.  Furthermore, in the period of time that the applicant claims she was living in fear she travelled to Australia twice: first in 2010 and then in 2011. Before the Tribunal she described these visits as ‘holidays’ and on both occasions she voluntarily departed Australia despite holding [temporary visas] that were valid for a period of year.  The applicant has claimed that she did not know she could apply for a protection visa on these occasions but the applicant speaks English and the Tribunal considers it reasonable to expect that, if she was afraid of returning to Germany, she would have made enquiries about applying for asylum. Instead, the applicant voluntarily returned to Germany before her [temporary visas] expired. In the Tribunal’s opinion, her migration history indicates that she was not afraid of returning to Germany for any reason.

10. The Tribunal does not accept that the applicant has credibly explained why, if she was afraid that Mr X would kidnap her son or that she was being stalked, she did not seek assistance from the German police. At the hearing the Tribunal put to the applicant that Freedom House states that women’s rights are “well protected under antidiscrimination laws”. [6] Rape is criminalized, including spousal rape, and penalties can be up to 15 years in prison.[7] Domestic violence is prosecuted under criminal law provisions against bodily harm and verbal abuse.[8] Under the Protection against Violence Act there are specific legal protections available for victims of physical violence, threats and stalking including restraining orders and granting the victim sole occupancy of the home. Legal aid is also available to victims unable to meet the costs of court proceedings.[9]  There are also a large number of operational women’s shelters; 360 in 2012 and a number of women in children who use these shelters. Many NGOs at the local level provided hotlines, assistance, advice, and shelter.[10] The applicant did not dispute this country information but remarked sure, Germany’s a democracy. When she was asked why she couldn’t seek protection from Mr X, she responded how. When it was put to the applicant that, if she was concerned that Mr X she could have approached the police and sought a protection order, the applicant said she had no real evidence because the things he did were on a different level. She claimed she was subjected to spiritual warfare every day and had a very negative impact on her son.  She claimed the person who could protect her and her child was herself.  

    [6] “Freedom in the World 2014 – Germany”, Freedom House, 4 August 2014, CIS2F827D91638; “Freedom in the World 2013 – Germany”, Freedom House, 10 April 2013, CX306464;  “Freedom in the World 2012 – Germany”, Freedom House, 12 July 2012, CIS961F9401990; “Freedom in the World 2011 – Germany”, Freedom House, 16 May 2011 CISD9559B11886

    [7] Germany - Country Reports on Human Rights Practices February 2013", US Department of State, 27 February 2014, OG1F18C9065

    [8] White Case Lawyers, “Current Legal Framework: Domestic Violence in Germany”,  The International Models Project for Women’s Rights (IMPOWR), 4 July 2013,  “Current Legal Framework: Domestic Violence in Germany”, International Models Project on Women's Rights IMPOWER, 4 July 2013, CIS36DE0BB1657

    [9] “Guide to Urgent Applications under the Protection Against Violence Act”, Arbeitskreis Interventionen , 2012, CIS961F9402005; Germany - Country Reports on Human Rights Practices February 2013", US Department of State, 27 February 2014, OG1F18C9065

    [10]Germany - Country Reports on Human Rights Practices February 2013", US Department of State, 27 February 2014, OG1F18C9065

11. The Tribunal is not satisfied that, in the years immediately before the applicant travelled to Australia and sought asylum, the applicant ever approached the German police for protection for assistance.   When the applicant was asked whether she ever reported her fears about Mr X to the police, she claimed that she went to the lawyer when her son was born in [date] and, while in Australia, she has spoken for the first time to a [Mr B], a police officer in the German[City 2]. When it was put to the applicant it was difficult to understand why she contacted a police officer in [City 2]two hours from [City 1], she told the Tribunal this was because Mr X lived in[City 2]. She  claimed that she spoke to police in [City 1] as well but the main things that  came back was as long nothing happened, no physical attacks, nothing could happen. The applicant told the Tribunal that she had given [Mr B] all the information she had about Mr X, namely that he is  a dangerous criminal and dealing drugs, he violated her, and she has left her country because of him. The applicant did not request that the Tribunal take evidence from any witnesses in her response to the hearing invitation. However, she did provide a telephone number for [Mr B] and at the hearing she suggested that the Tribunal could verify that the telephone number she had provided for [Mr B] was that of a police station in [City 2]. However, as discussed at the hearing, the Tribunal does consider there would have been any utility in attempting to contact [Mr B]. This is because, in Tribunal’s view, even if it were to be accepted that the applicant had contacted a German police officer whilst in Australia to report her concerns about Mr X, this would only establish that the applicant had made allegations about an unidentified man to the German authorities. It would not establish that there was any objective basis for the applicant’s concerns.

12. At the hearing, the Tribunal discussed with the applicant whether she and her children could safely and reasonably relocate to other locations in Germany, and whether they could exercise their rights to enter and reside in other EU Member States, in terms of s.36(3)-(5) of the Act.The Tribunal did not find the applicant’s evidence as to why she could not relocate, either within Germany or by entering and residing in other EU member states, to avoid Mr X to be credible. Before the Tribunal the applicant claimed she could not live in [Country 1] because Germany had weak borders so Mr X could easily travel within Europe; and, as it was easy to see where a mother with a black child was going, her movements would be known. She claimed Mr X could still kidnap [the second named applicant] and/or subject her and her family to spiritual warfare. She stated she feels freer in Australia because she ‘has no contact with any African people’.

13. The Tribunal finds the applicant’s claims that Mr X would be able to find them wherever they were in Germany or in Europe are not credible as they relied upon vague, implausible and racialised generalisations that her whereabouts would be known because ‘black people’ or a ‘black network’ or members of the African reggae musician scene would alert Mr X to the applicants’ whereabouts. Furthermore, and in any event, the Tribunal is not satisfied that Mr X tried to locate any of the applicants in [City 1] in the years before the applicants travelled to Australia in November 2017.  The Tribunal finds that the applicants do not have any contact with Mr X and that they did not have any contact with Mr X at the time they left Germany and travelled to Australia.  The Tribunal finds that there is no real chance that this situation will change if the applicants return to Germany.

14. The Tribunal has considered the applicant’s claims that Mr X is a criminal who is involved in gangs and dealing drugs and that he might direct people working for him to harm her. In her written claims she suggests that this might occur because of ‘hate and racism’ against white people. She claimed she would still be the target as in Europe Mr X could stay with whoever he wanted and get them physically. When it was put to the applicant that Mr X not harmed her in the years after her son was born, she claimed that she was harmed on the street. Asked whether she had previously mentioned this, she said that she has not told the Tribunal but she had written that she was targeted on the street. She claimed the last attack was shortly before she left Germany; a guy took her phone and attacked her physically. She claimed she knew this guy was a friend of Mr X and that they did music.  The Tribunal notes that the applicant did not refer to this incident in her protection visa application or in the more detailed statements she provided to the Tribunal. The Tribunal does not accept that the applicant was physically attacked by a friend/associate of Mr X shortly before she left Germany and it is not satisfied that this incident ever occurred.

15. Overall, the Tribunal found the applicant’s evidence that she would be physically harmed or harassed by Mr X and/or criminal individuals to be  speculative and  lacking in any meaningful detail. The Tribunal does not accept that there is a real chance that [the first named applicant] or her children will be harmed by criminal associates of Mr X. She claimed that she would be fearful in Germany and that she ‘didn’t want to get shot down out of the car by any crazy African hip hop drug dealer’. As the Tribunal discussed with the applicant, her evidence does not indicate that she has ever been the victim of such crime even though she lived in Germany for an extended period of time and nor does her evidence indicate that she would be targeted or singled out by criminals in Germany. The applicant has claimed that Mr X is a criminal and wants her die, she suggested he told her such crimes would happen to her, it had happened in places close to her; they killed women in those places and they have high security and guns. However, as the Tribunal put to the applicant, if Mr X wanted to harm her it appeared he had already had an opportunity to do so while she was living in Germany. In response, she claimed he had harmed her spiritually and she was a shadow of herself.  On the evidence before it, the Tribunal does not accept that the applicant is now of any interest to Mr X. The Tribunal does not accept that, if the applicant returns to Germany, she will be targeted, threatened, singled out or harmed in anyway by Mr X or by criminal individuals or gangs for any of the reasons claimed.

1. For the purpose of this decision, the Tribunal is willing to accept that the applicant has been the victim of two separate sexual assaults in the past. The applicant did not claim that she would be at risk of sexual violence at the hands of Mr X or the perpetrator (said to be a friend of her then boyfriend) of the second sexual assault if she returned to Germany now or in the reasonably foreseeable future. The Tribunal acknowledges that sexual violence disproportionately affects women, but the applicant has not claimed and, on the evidence before it, the Tribunal does not accept that there is a real chance that she will be a victim of rape or sexual violence if she returns to Germany now or in the reasonably foreseeable future. However, the Tribunal does not accept that the adult applicant was attacked by an associate of Mr X before she left Germany or that she had been harassed, monitored, stalked or otherwise subject to harm by Mr X or the friends, family or criminal associates of Mr X.

2. For the reasons set out above, the Tribunal does not accept that there is a real chance that the applicant will be harmed by Mr X in any way if she returns to Germany now or in the reasonably foreseeable future and nor, on the evidence before it, does the Tribunal accept that there is a real chance that the applicant will be harmed, harassed or pressured to work for criminal associates of Mr X who are involved in dealing drugs. Furthermore, on the evidence before it, the Tribunal does not accept that there is a real chance that the applicant will be specifically targeted by criminals for any reason (including for reasons of her race and/or gender or for any other reason).  To the extent that the applicant has suggested that is a real chance that she will be subjected to serious harm or significant harm as a result of criminal activity, the Tribunal finds her evidence to be highly speculative. On the evidence before it, the Tribunal is not satisfied that there is a real chance that any of the applicants will face serious harm or significant harm as a result of criminal activity in Germany.

Spiritual warfare

1. The Tribunal has considered the applicant’s claims that Mr X is using spiritual warfare to try and destroy her life, her mental strength and her children and that this warfare will affect her more in Europe. The applicant claims that African priests and an African person advised her she needed to leave Germany and go as far away as possible. She claimed Mr X was using this as a weapon so people thought she was crazy. When she was out of the way he would claim to be the father. However, given the applicant’s evidence is that Mr X has never legally claimed to be his father and there is no credible evidence that he has ever sought to contact [the second named applicant] (even though, according to the applicant, fathers are protected in Germany), the Tribunal finds it strains credulity to suggest that he is waging an ongoing spiritual war against the applicant in the hope of ultimately asserting his rights as a father. 

2. Furthermore, as the Tribunal put to the applicant, she did not mention her fears that she and her sons were being targeted by spiritual warfare before the Department. The applicant told the Tribunal she didn’t mention the issue of spiritual warfare in her protection visa because she was scared to do so: such matters were stigmatised in Germany and nobody really believed what was going on. While the Tribunal accepts that the applicant may have felt constrained giving evidence to the delegate in the presence of her children, as the Tribunal put to the applicant, there is no mention of spiritual warfare in the written claims that accompany her protection visa application.

3. Nonetheless, the Tribunal has considered the applicant’s evidence that she did not raise her concerns that she was the subject of spiritual warfare because she believed she would be laughed at and disbelieved. At the hearing the applicant spoke at length about her claims that she and her children were being subjected to ‘spiritual warfare’. She told the Tribunal it was like being in a constant war, one which could not be seen, where someone was permanently attacking her in her spiritual life, her soul, her heart and using her as a living voodoo doll. Her children were also affected by this negativity. She gave evidence that she has approached Australian churches [as] well as individuals in Australia and Germany to seek help in relation to the spiritual warfare that she claims is being waged against her. She told the Tribunal that she had never met [Ms C] as [Ms C] lives in [another country] and they had communicated online. She also provided a strange and detailed account of seeking assistance from a woman in Germany who had advised her that the devil was in her house and that she must place [specified items] in her sleeping room to draw the negativity into the [items]. 

4. The Tribunal has read the various reports about voodoo and black magic the applicant has submitted, as well as correspondence from [Ms C], who describes herself as ‘[psychic] spiritualist and healer’[11], and [Father A] of [Church 1], [Suburb 1].[12] [Father A] writes that the applicant wrote him a ‘long handwritten account of her experiences of the effects of voodoo from her first child’s African father, who practises voodoo’ and that he respects these experiences ‘as genuine for her’. He writes that the applicant’s account was ‘real enough that I was able to get [a Catholic Archdiocesan] exorcist to come to our presbytery in [Suburb 1] to perform an [exorcism]’. He states that ‘this did not have a decisive effect, though it did calm her.  

   [11] Tribunal file, folio 55—56.

   [12] Tribunal file, folio 42.

5. The Tribunal doubts that the applicant genuinely believes that she is subject to spiritual warfare. However, even if it is accepted that the applicant does currently believe that she and her sons are the subject of spiritual warfare –such as voodoo attacks – perpetrated by Mr X, the Tribunal is not satisfied that there is any objective basis upon which to conclude there is a real chance that any of the applicants will suffer serious harm or significant harm as a result of the actions of Mr X if they return to Germany now or in the reasonably foreseeable future. The applicant has claimed that the spiritual attacks made her sick, but this claim is not supported by any objective evidence: her evidence indicates that she was employed in Germany up until the time she travelled to Australia and that, since the birth of her son [the second named applicant], she travelled in and out of Germany on numerous occasions, including to Australia and to [Country 1]. While she has stated she suffers from [a medical condition], she did not suggest this was as a result of spiritual warfare. The Tribunal is not satisfied that the applicant or her children suffer from any medical conditions as a result of being subject to spiritual warfare.

6. The Tribunal is not satisfied that there is any objective basis upon which to conclude that the applicants have previously suffered serious harm or significant harm as a result of spiritual warfare. Looking forward, the Tribunal finds that there is no real chance that any of the applicants will face serious harm or significant harm for reasons relating to the spiritual warfare if they return to Germany now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicants had any contact with Mr X at the time they travelled to Australia in November 2014. The Tribunal is not satisfied that there is a real chance that Mr X will attempt to subject any of the applicants to serious harm or significant harm through any means (including spiritual warfare/ voodoo attacks) if the applicants return to Germany now or in the reasonably foreseeable future. The Tribunal does not accept that there is a real chance Mr X or any individuals or groups acting on his behalf will kidnap [the second named applicant] or otherwise seek to harm any of the applicants.  The Tribunal does not accept that there is a real chance that any of the applicants will be subject to serious harm or significant harm by Mr X, his family, criminal individuals or groups, or any other person or group in Germany.

Other claims

Homelessness, hardship, and discrimination

1. At the hearing the Tribunal raised with the applicant her claims that if she and her children returned to Germany they would become homeless. It was put to her, and she did not dispute, that she had obtained child support in Germany in the past and she would be able to do so again. It was also put to the applicant that, despite the challenges she faced as a single mother raising two children in Germany, she had been able to take holidays, travel to other countries, and find rental accommodation. When asked if there was any reason that she would not be able to do this in the future, the applicant said it was a very big step to cut all cords and she referred to the difficulties she experienced when she first arrived in Australia.  She claimed that [the third named applicant] had [a medical emergency] and he almost died in hospital in Australia when they had no housing; they ended up in campsite in a boarding house.

2. While the Tribunal acknowledges the hospitalization of [the third named applicant] in Australia was a stressful experience for the applicant, as the Tribunal put to her the information she has provided to the Tribunal indicates that he has recovered. She said he still had a disability and she could see when something was not ok he reacted very fast. The Tribunal accepts that [the third named applicant] suffers from [a medical condition] but the applicant has not claimed, and nor does the evidence before the Tribunal suggest, that [the third named applicant] would be unable to access appropriate medical care in Germany. When it was put her medical services in Germany were good, she agreed but expressed concern about having to give up their house in Australia and leave school. She told the Tribunal they would face the same problems in Germany and stated she did not want her children to be involved in the ‘African scene’.  She didn’t want [the third named applicant] to have a breakdown like he did before. She was not healthy; she had [a medical condition]. She feared what it would be like it was for her in the beginning in Australia when she did not have a house.

3. The Tribunal has considered all the evidence about the applicant’s circumstances as a single mother of two young children, including the letters from Australian educators and medical professionals. The Tribunal accepts that the applicant was employed in a sports bar in [City 1] up until the time she left Germany in November 2014.  She used to receive support payments from the German government but these payments stopped when she started receiving asylum seeker assistance in Australia. The Tribunal accepts that she is not in contact with any family members in Germany and that, in the past she has been victim of two separate rapes, which may have resulted in her experiencing ongoing anxiety and trauma. However, the applicant has spent most of her life in Germany and lived for extended periods of time in [City 1], where she and her two children were born. Her evidence indicates that she has been able to secure accommodation and employment in Germany in the past, travel in and out of Germany on multiple occasions, and care for her two children.

4. The Tribunal is not satisfied that the applicant will be unable to re-establish herself in Germany or that her previous experiences (those that have been accepted by the Tribunal), or any trauma she experienced which is ongoing as a result of these experiences, will be such that she will be unable to re-establish herself in Germany, or that she will be unable to care for her children. Since the birth of her eldest son the applicant has travelled in and out of Germany on multiple occasions. The Tribunal accepts that the applicant may find it difficult and challenging to return to Germany and that her children may also experience some stress and anxiety upon returning to Germany. The Tribunal notes that her evidence suggests she experienced some initial difficulties securing a rental house in [Australia] but that she ultimately did so. The applicant has not claimed, and the Tribunal does not accept, that she has had difficulty securing rental accomodation in Germany in the past.

5. Having regard to her history of past employment in Germany and her evidence concerning her capacity to find employment in Australia, the Tribunal considers that  she will be able to find employment and rental accommodation if the applicants return to Germany. The Tribunal is not satisfied that there is a real chance the applicant or her sons will suffer serious harm or significant harm in Germany due to any difficulties they face readjusting to life in Germany or that the applicant faces securing employment. Furthermore, the applicant has obtained child support payments in Germany in the past and she has not suggested that, if she returned to Germany, she would be unable to do so in the future. Having regard to the applicants’ circumstances, the Tribunal finds the prospect that the applicant will be unable to find accommodation and employment and provide care and shelter to the two child applicants is remote. The Tribunal has considered the applicant’s evidence that she suffers from [a medical condition] and that her youngest son has [a medical condition] as well as the medical evidence that have been submitted to the Tribunal about the medical problems [the third  named applicant] has experienced in Australia.[13] However, there is no suggestion that [the third named applicant] would be unable to access appropriate medical services in Germany.

   [13] Tribunal file, folio 29 ([Hospital 1], Letter from[Doctors’ names deleted]) folio 34 (Medical certificate,[Doctor’s name deleted])

6. While the Tribunal has considered the applicant’s evidence that English has become [the second  named applicant]’s first language and that [the third  named applicant] understands German but only speaks English, the Tribunal is not satisfied that any difficulties that the applicants may face readjusting to life in Germany, even after spending a significant period of time in Australia, could be said to create a well-founded fear of serious harm amounting to persecution or amount to significant harm. Having considered all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant and her infant children will be homeless if they return to Germany now or the reasonably foreseeable future or that they will be denied access to basic services or that [the first named applicant] will be denied a capacity to earn a livelihood of any kind. The Tribunal does not accept that any of the applicants will face significant economic hardship that threatens their capacity to subsist if they return to Germany in the reasonably foreseeable future. .

7. Before the Department the applicant claimed that her sons might experience discrimination on the basis of race and expressed concerns about “robbing and social discrimination”. The Tribunal accepts that the applicant’s sons are of mixed race. When the Tribunal put to the applicant that Germany had anti-discrimination laws in relation to racial discrimination[14] and it was difficult to see why her sons would face serious harm or significant harm on the basis of their race, the applicant did not expand upon these claims but reiterated her claims that she would face spiritual warfare in Germany. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the infant applicants will face serious harm or significant harm for reasons relating to their race or because they are the mixed race children of a white woman. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the adult applicant will suffer discrimination amounting to serious harm or significant harm for reasons of her race, gender and/or as the mother of two children of mixed race or for any other reason. Nor, for the reasons given above, does the Tribunal accept that there is a real chance that any of the applicants will face serious harm or significant harm as a result of criminal activity in Germany.

Conclusion: the applicants are not refugees

[14] United States Department of State, 2016 Country Reports on Human Rights Practices - Germany, 3 March 2017, available at: type="1">

The Tribunal has considered the claims advanced by the applicants singularly and cumulatively. For the reasons given above, the Tribunal does not accept that there is a real chance that any of the applicants will be homeless or experience any hardship or discrimination that amounts to serious harm if they return to Germany now or in the reasonably foreseeable future. While it is clear that the applicant would prefer to have her children continue their education in Australia, nothing in the evidence before the Tribunal satisfies it that any of the applicants have a well-founded fear of persecution for one or more of the reasons set out in the refugee definition. Having regard to what it has accepted of the applicants’ claims and circumstances, the Tribunal is not satisfied that there is a real chance that any of the applicants would face persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion now or in the reasonably foreseeable future in Germany.  Accordingly, the Tribunal is not satisfied that any of the applicants are refugees.

Complementary protection criteria

1. As the Tribunal is not satisfied that any of the applicants meet the refugee criterion under s 36(2)(a) of the Act, it must consider whether any of the applicants meet the complementary protection criterion under s 36(2)(aa) of the Act. For the reasons given above, the Tribunal is not satisfied that the applicant or her children are now, or were at the time they left Germany, of any adverse interest to Mr X. With respect to the second named applicant, for the reasons given above, the Tribunal does not accept that there is a real risk that he will be kidnapped or otherwise harmed by Mr X or individuals or groups acting on his behalf. Having regard to its findings of fact, the Tribunal does not accept that there is a real risk that any of the applicants will be subject to significant harm as a result of the actions of Mr X, his family members, or criminal individuals or criminal gangs.

2. The Tribunal has rejected the applicant’s claims that she and her sons will be homeless. The Tribunal has considered the applicant’s circumstances as a single mother with two young mixed race children. Having regard to what it has accepted of the applicants’ claims and circumstances, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Germany there is a real risk that any of the applicants will suffer significant harm as a result social discrimination and/or criminal activity or for any of the reasons claimed. On the evidence before it, the Tribunal is not satisfied that any discrimination that the infant applicants may encounter as a result of their race and/or being the mixed race children of the first named applicant would amount to significant harm.

3. The Tribunal has considered the claims presented on behalf of the applicants singularly and cumulatively. While the applicant may prefer to educate her children in Australia, the Tribunal is not satisfied that any hardship or difficulty that any of the applicants may encounter returning to Germany will amount to significant harm for the purpose of the complementary protection criteria. The Tribunal is not satisfied that, if the applicants were to return to Germany that there are substantial grounds for believing that there is a real risk that any of the applicants would suffer significant harm as that term is defined in s.36(2A) of the Act and s 5(1) of the Act. Accordingly, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

CONCLUDING PARAGRAPHS

1. 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.

2. As the Tribunal has found that the applicant does not meet the requirements of s.36(2)(a) and s.36(2)(aa) of the Act, in relation to Germany, it is unnecessary for the Tribunal to assess whether Australia is taken not to have protection obligations in respect to the applicants, as a consequence of their legally enforceable rights to enter and reside other EU Member States, pursuant to s.36(3), as qualified by ss.36(4) and 36(5).

DECISION

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

Frances Simmons
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.

…

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Natural Justice

• Procedural Fairness

• Jurisdiction