1514693 (Refugee)

1514693 (Refugee) [2017] AATA 1958 (19 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514693
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Luke Hardy
DATE:19 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2017 at 5:40pm
CATCHWORDS
Refugee – Protection visa – Nepal – Political opinion – Nepalese Congress Party member – Fear of Harm from Maoists – Can obtain protection in India – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H(1), 5J(1), 5J(2)-(6) , 5H(1)(a), 36, 36(2)(a)-(c), 36(3) 65, 499
Migration Regulations 1994, Schedule 2
CASESMIAC v SZQRB [2013] FCAFC 33
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] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant [is] a citizen of Nepal. He entered Australia [in] July 2008 on a tourist visa allowing him multiple stays of up to three months for one year. He overstayed his first three-month visit and became an unlawful non-citizen in Australia [in] October 2008. Six and a half years later, [in] May 2015, [the applicant] lodged a protection visa application, which the Minister’s delegate refused [in] October 2015, relying on s.36(3) of the Act (see Attachment below).
[The applicant] subsequently sought review of that decision by this Tribunal. He appeared before the Tribunal on 18 October 2017 to give oral evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the English-Nepali medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
Another issue in this matter is [the applicant]’s reliability as a witness.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In his 2015 protection visa application, [the applicant] claimed he was a [driver] who was involved with his local village development committee (VDC) in [a village] near Chitwan. He claimed that the Nepalese Congress Party (NCP), which he supported and joined, was the dominant party in his area. He claimed he was elected [an official] of his local VDC. He said that the Maoists in Nepal were, around the same time, interfering with social and political processes in Nepal, damaging homes and infrastructure. He said that the populace in his village, however, was united around the NCP. He claimed that due to the NCP’s strength and appeal in his local area, the Maoists were afraid to destroy infrastructure and private property and unable to carry out threats against members of political parties it opposed.
[The applicant] claimed that the Maoists were allowed to enter the democratic political process pursuant to an agreement that ended what he called the “revolutionary war” in 2005. He said that Maoists set up an electoral office in different wards. He said they transported party members from place to place and collected donations from the public. He said they trained their cadets with the donations.
[The applicant] claimed he was asked verbally by some Maoists at some stage to lend them his party’s [vehicle]. He claimed he lent the [vehicle] to the Maoists on two different occasions. He claimed that on another occasion he declined to lend the [vehicle] for a Maoists election campaign activity because he and his party were using it themselves to campaign ahead of the national Constituent Assembly elections. These, I note from independent sources, were held in April 2008.[1]
[1] “Nepal sets new date for elections”, BBC News, 11 January 2008,
[The applicant] claimed that on this occasion he declined to lend the [vehicle], as his Congress colleagues had already lent it on past occasions and needed it for their own use. He claimed the Maoists later torched the [vehicle] and assaulted him. He claimed they also said to him that they would kill him if they saw him again. He further claimed that they began making threatening telephone calls. He claimed briefly in his protection visa application form that he told the police who were too afraid to do anything. He claimed in his longer statement that local party officials also said they could not help him because, due to the Maoists having acted through “different people” it was hard to identify any one individual, presumably with a view to bringing anyone to justice. [The applicant] later contradicted this particular item of evidence in his oral testimony to the Tribunal.
[The applicant] claimed he then fled to Kathmandu where a named NCP parliamentarian helped him organise his travel to Australia, telling him that the party could not help protect him in Nepal due to the risk of harm to any party members who tried to do so. He claimed he stayed in Kathmandu for three months. He claimed that the parliamentarian brought him to Australia and left him here. He did not provide any material to support this particular claim about travelling here with a politician.
[The applicant] did not suggest that he suffered any harm or threats in Kathmandu. He evidently left his family behind in his village, but did not discuss their situation in the circumstances in his protection visa application; I asked him for more detail about this at the Tribunal hearing. (See below.)
[The applicant] acknowledged he had illegally stayed a long time in Australia. He said he intended much of this time to go back to Nepal in the event of things improving. He claimed that just when he decided to go back to Nepal he received a letter from the Maoists demanding a large donation threatening to kill him if he did not provide it. He did not provide any evidence of this letter. It struck me as odd that the Maoists on the one hand were threatening to kill [the applicant] purely on sight whilst effectively suggesting he would be spared if he paid a donation.
[The applicant], who later claimed he had worked several years in Australia, claimed to the Department that he had been unable to pay the amount to which he vaguely referred in his statement of claims. He said this was why he decided he was unable to return to Nepal and lodged his protection visa application.
[The applicant] said he was also unable to return to Nepal due to the April 2015 earthquake in that country. He provided no evidence to suggest that Chitwan was seriously affected by the earthquake. UNESCO and blog material indicate that Chitwan was “not affected”[2], although for a time cheap road access from Kathmandu might have been interrupted. He was later to tell me that his family still resides in the house where he also lived in their village.
[2] see also
[The applicant] submitted photocopy material in support of his claimed membership of the NCP. He also submitted material linking him to activities at the local VDC level. He submitted letters from NCP, VDC and local social club colleagues back in Nepal attesting to his association with them up to 2008; all of these letters are dated around 2015 and 2014; none of them refer to [the applicant]’s claimed conflict with Maoists.
[The applicant] submitted to the Department some printouts of Facebook feeds; these evidently display images of his wife and NCP friends and colleagues. It is not suggested that they provide evidence in support of his claimed problems with the Maoists and for this reason, whilst accepting that [the applicant] was an NCP member and [driver] who was elected [an official] in his local VDC, I give the Facebook material little weight.
A separate submission to the Department from [the applicant]’s adviser states that [the applicant] was a businessman, arguing that this factor be considered as a “particular social group” factor in the present case. However, [the applicant]’s own evidence argues that the alleged threat from the Maoists did not exist but for his refusal to lend them his or his party’s [vehicle] for a third time.
Evidence to the Tribunal
As noted, [the applicant] said his wife and [children] continue to live in his house in his home village, near which one of his [siblings] also lives.
[The applicant] correctly said that an NCP-led coalition has been in power at the national level in Nepal for a number of years. He said that where he lives the NCP is overwhelmingly popular and currently forming government at the local level. [The applicant] also told me that, following a national government review, his former VDC and others like it were subsumed about a year ago into a new administrative structure due to the growing population in his home region. He said that his home is now part of a municipality. He said that his VDC no longer exists. He acknowledged that the NCP government appeared to have consolidated local administration in his home district according to its preferred model.
[The applicant] said his former VDC chief has retired and still lives in what used to be the village. He said that the deputy VDC chief was also still living in the area. He did not suggest that either of them are living under any potentially relevant pressure, let alone from Maoists.
Referring to the [vehicle] that the Maoists had asked to borrow, [the applicant] told me it was his own [vehicle]; however, as noted above, it is described as the party’s [vehicle] in his original statement of claims. In any event, consistent with his earlier claim about the Maoists being afraid to put pressure on the NCP and its constituents in his area, [the applicant] said that his problems with the Maoists were essentially isolated to the period of the 2008 election campaign.
[The applicant] indicated that he went to stay in Kathmandu around a week after the [vehicle] was burned, as he claimed to have stayed in Kathmandu for around three months. He said he went to Kathmandu because the Maoists threatened to kill him in his home region if they ever saw him there again following the occasion on which they beat him.
I asked [the applicant] if he could be more specific about the particular Maoists who had approached him for the [vehicle] and who later threatened him. In reply, he said he was sometimes called on the telephone and sometimes pressed to meet them in person. He said that there were only “two to four” Maoist representatives involved. I asked him if he had ever been able to identify them and he said, “No.” His suggestion to the effect that he met on different occasions with “two to four” Maoist cadres, and lent them the [vehicle] of two occasions, and received it back from them, makes it hard to conceive he knew nothing of their individual identities; in the claimed circumstances, I found it hard to conceive that [the applicant]’s party colleagues offered no assistance due to the perception of all the “different people” involved. I asked [the applicant] for more detail about the identities of the Maoists, given the claim about their having opened electoral offices in his home ward; in reply, he spoke vaguely about the Maoists in his area having become a divided lot, some supporting the electoral process and some boycotting it. I put to him that the Maoists as he described them might have fallen into such disarray over the years as to have long moved on from any heated remarks they might have made back during the election campaign of 2008; in reply, he said that the threat the Maoists made had been a “lifelong threat”. He then digressed, to say that when his [family member] fell ill more recently he was unable to visit her before she died due to his fear of the Maoists; he said she told him to stay in Australia if he could even though she expected she was dying at the time.
Speaking about his family in more detail, [the applicant] said his wife lives in the village, as do [his] [children]. I commented on the lack of any evident interest on the part of the Maoists in harming his family in his absence over the last decade and, in response, he said that the Maoists ask his family for donations. I put to him that demands from Maoists for donations is a fairly common phenomenon in Nepal and he said it is. He did not suggest here that any threats of potentially harm towards his family had arisen in the context of these alleged requests for donations.
I asked why [the applicant] had left his family in the village to face the Maoists without him given what he described as the seriousness, genuineness and severity of the threat to kill him. In this way I indicated a concern as to the genuineness of his fear of the Maoists. In reply, he said he could not bring them all here to Australia. I asked him why he had not at least tried to move his family away from the locality in which the threats to his life had been made, and he said that he could not go back there. I put to [the applicant] that since his family had been unharmed for so long, and given that the [vehicle] denied to them was destroyed, it might be that the Maoists had already long ago satisfied their anger about the central matter in his claims. In reply, [the applicant] said again, “They will harm me.”
Reminding him of the claim about having met the Maoists in question on numerous occasions (including two occasions of lending a [vehicle] to them and receiving it back, I asked [the applicant] how he and his party colleagues could have been so completely unable to identify any of the two to four persons concerned. In reply, he said that the Maoists he was talking about had been “isolated people” who operated after dark in order to keep everything about themselves confidential. Here he did not seem to be talking about the same people he had described in his protection visa application statement as persons who had set up a local electoral office and asked to borrow his [vehicle] so that they could campaign in the electorate for their preferred candidates. On review of the evidence overall, I find that [the applicant] has given inconsistent and far-fetched evidence to the effect that his assailants were mysterious night visitors, isolated from the local communal and political activities.
Concerned about [the applicant]’s delay in bringing his protection claims to the attention of Australian authorities, I asked him about his migration history. He said he arrived via [City 1] airport and was stamped through for a three-month stay. He said he moved to [City 2] after a month because he had a friend who lived there who could help him find work as[occupation]. He said he did not stay long in [City 2], though, but moved to [another state]. He acknowledged knowing at the time that he had overstayed his visa, leaving himself liable to be deported to Nepal and was all the while working illegally. He said he was unaware of the existence of protection visas because, for want of sufficient English, he did not meet anyone here who knew about them until 2015. All this time, I note, he claimed to have been assisted in going to Australia to seek protection by a Nepalese parliamentarian, and he had been demonstrably adept from the beginning of his time here at travelling and finding work interstate.
[The applicant] said he took as long as he did to apply for protection because he had been monitoring the situation at home in Nepal over the years hoping that things would improve. We had already discussed the evidence about his family not having been threatened throughout that time in spite of remaining in the village where the threats against him were originally made. I asked him what made him decide, once and for all, that things were not going to improve and he said he heard news from his friends and family that he was still being threatened. Again, I questioned why he would have left his family in a place where they might have faced the risk of being drawn into the revenge problem that he had fled, but in reply, he merely said that he was scared, had stayed here a long time because he was scared and had not been able to back to visit his dying [family member] because he was scared. I note [the applicant]’s submission of a translated copy of a document purporting to be his [family member’s]’s death certificate.

[The applicant] went on to say that he still holds title to property in Nepal and that, given this, he has no reason to be in Australia but for the fear of persecution that he has raised in his protection visa application. Later in the hearing, however, he became emotional and said that he is old, has nothing in Nepal and cannot work there, and that his wife is also old and cannot work there either. He said again that he would have returned to Nepal to see his [family members] but for his fear of persecution.
I asked [the applicant] about the parliamentarian who had helped him organise his trip to Australia and he said that she is still in [Nepal].
I drew [the applicant]’s attention to the delegate’s having relied on s.36(3) after finding that he had not taken all possible steps to avail himself of the protection of India under the Treaty of Peace and friendship which provides unrestricted entry and residence for Nepalese citizens in India.[3] In response, [the applicant] said that there is a high rate of unemployment amongst Nepalese in India. Noting that he has worked in [occupation] in Australia I asked [the applicant] if he could not pick up work as a [occupation] in India and in reply he said that [the industry] in India is different from [the industry] in Nepal. I put to him that [the industry] in Australia is likely different from [Nepal] and he said he feels more secure in Australia. He said that Nepal and India have an open border.
[3] DFAT Country Information Report Nepal, 21 April 2016, paragraphs 3.10, 5.21, 5.24.
Findings in relation to s.36(2)(a) of the Act
I am not satisfied that the “particular social group” factor proposed by [the applicant]’s adviser is an essential and significant factor in the harm [the applicant] claims to fear. The facts in this case relate to [the applicant]’s claimed “political opinion”, insofar as it was manifested in his claimed refusal, albeit just on one particular occasion, to lend a [vehicle] to some Maoists for their political campaign so that his party to use it for its own.
Whereas [the applicant] claims that he is the subject of a real and lifelong vendetta from the Maoist party that his own party, the NCP, and the police are powerless and afraid to address, he also claims that the NCP is firmly and confidently in control of the area where he lives, and that the Maoists would be afraid to harm any NCP members in his area given the NCP’s local strength. Having reviewed all of the evidence before me in its entirety, I find that [the applicant]’s description of the specific situation affecting him is confused, inconsistent, unresolved and lacking in credibility. I find that [the applicant] has also given inconsistent information about whether the Maoists who threatened him were “two to four” familiar faces involved in day-to-day election campaigning, out of a party electoral office in his home area, or mysterious and unidentifiable strangers from out of town whose main activities were nocturnal; I give some weight in the present matter to this inconsistency. Meanwhile, administrative structuring in [the applicant]’s home area has evidently benefitted and consolidated the NCP whilst the Maoists, according to [the applicant], are divided amongst themselves.
[The applicant] says that he delayed applying for protection for seven years partly because he was hoping things would improve for him. He referred to a recent threat, made around 2015 in relation to a demand for an onerous donation, as the factor that finally moved him to apply to stay here permanently. However, whereas he implies that conditions and prospects for him continued to be negative for several years, he has been very vague as to the basis of his assessment that conditions at home remained so. Meanwhile, he left his family there the whole time. Having reviewed the evidence before me in its entirety, I am not satisfied that [the applicant]’s act of leaving his wife and children behind to reside in his home village for so long is consistent with a genuine fear of the Maoists maintaining a revenge campaign against him.
On the evidence before me, I am not satisfied with [the applicant]’s explanation as to his delay in applying for a protection visa. I find that he was well able to move around Australia and locate work in different locations with the help of a friend or friends in spite of the language barrier that he says prevented him from enquiring about migration options for so long. I am not satisfied that he could not have mentioned his problems about the Maoists with his friends and asked for their help in bringing these problems to the attention of Australian authorities without undue delay.
I also find that [the applicant]’s claims about being well-off enough to remain in Nepal but for the claimed threats from the Maoists are inconsistent claims. He plainly said to me at the end of the hearing that he and his wife are getting old and would have difficulty finding work in Nepal. I give some weight to this assertion in my overall assessment as to his reliability in this matter.
Whereas I accept that [the applicant] is an NCP member who was involved in and elected to local government under the old VDC model of local government, as attested to in various supporting letters, I do not accept that he ever had the problems he claims to have had with the Maoists.
I have considered whether [the applicant] faces a real chance of persecution in Nepal for reasons of being a member/supporter of the NCP. On the evidence [the applicant] has provided of so many NCP friends and colleagues simply getting on with their lives and/or work, having regard to the evidence of the NCP having consolidated its constituency in his municipality considering the claim about the Maoists being divided, at least locally, and noting that an NCP coalition is currently the national government, I am not satisfied that [the applicant] faces a real chance of persecution in Nepal for reasons of his NCP affiliation.
[The applicant] claims that Maoists have made onerous demands for donations but in light of his consistency and credibility problems in this matter, I do not accept this to be true. I give much more weight to his claim to the effect that the Maoists are disorganised in his home region and to the claim about their being afraid to put pressure on the people in the NCP stronghold where he lives.
I give no weight in this matter to [the applicant]’s claims about the 2015 earthquake.
Having considered all of the evidence in this matter in its entirety I am not satisfied that [the applicant] faces a real chance of persecution in Nepal in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Essentially, [the applicant]’s complementary protection claims rely on the same facts as his refugee claims. Those claims generally failed due to a lack of credibility and/or not meeting the “real chance” test. In view of my findings of fact above, and in view of the “real risk” and the “real chance” tests being essentially the same, [the applicant]’s refugee claims can no more succeed as complementary protection claims.
Having considered all of [the applicant]’s claims in their entirety, I am not satisfied, on the evidence overall, that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk he will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
S.36(3) of the Act
I find that [the applicant] has failed to meet s.36(2) of the Act. The evidence in this matter would lead me to conclude that [the applicant] has the right to enter and reside in India and has not taken all possible steps to avail himself of the protection of India, and to find that he is caught by s.36(3). However, this is moot because I have found he is not owed protection in Australia because he fails to meet s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1958

19 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice