1515170 (Refugee)

1515170 (Refugee) [2018] AATA 284 (7 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515170
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Melissa McAdam
DATE:7 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 February 2018 at 3:17pm

CATCHWORDS
Refugee – Protection visa – Nepal – Imputed political opinion – Donated money to a terrorist organisation – Arrested and tortured by police – Fear of harm – Ethnicity – Member of the Birhari ethnic group – Contradictory claims – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa [in] January 2015.
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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born on [date] in Rupandehi, Lumbini Zone, Nepal. He submitted a copy of the bio-data page of his Nepalese passport issued in [2008]. He submitted a [Australian state 1] Police Force letter that he had reported the loss of his passport on [date] December 2014.
b.He is Hindu and was [an occupation] in Nepal. His mother and [brother] are living in Nepal.
c.He left Nepal on [date] March 2014.
d.He was in [City 1 in Country 1], between [March] 2014 and [November] 2014.
e.He arrived in Australia on [date] November 2014 on a [temporary] visa.
f.He was being targeted by the authorities in Nepal. If he returns to Nepal the authorities will torture and possibly kill him. He was tortured in Nepal and under house arrest. He left Nepal without permission. It was not an option to go to [Country 2] as the authorities could find him there, so he went to [Country 1].
g.He ran a successful [business] in his home town. He was thinking to expand his business and was in contact with others to investigate options. He was contacted by a group of people who stated they were social workers. They asked the applicant to donate some money to help the poor people in the area. The applicant gave them [amount] Nepalese Rupees.
h.The next day some people came to see the applicant, gave him a receipt and thanked him for donating to Janatantrik Terai Mukti Morcha (‘JTMM’). The applicant was shocked to hear he had donated to that organisation which was a violent armed revolution group.
i.The next day the applicant was taken into custody by the local police and asked about his support for the JTMM. The applicant told the police he had never been involved with or supported the organisation and that they obtained a donation from him through false information. The police did not believe him and tortured him.
j.After a day he was released. The police warned him he was in trouble for helping the people trying to separate the nation. A formal complaint was registered against the applicant. He had to report to the police every Sunday.
k.The family business was ruined and the business sealed by the authorities. His brother took control over the family property and sold it giving the applicant a share, [amount] Nepalese Rupees, of the money.
l.The applicant’s movements were restricted. He realised his life was in danger from the authorities and decided to run away. He went to Kathmandu.
m.He decided to go overseas to protect his life. An agency arranged for the applicant to go to [Country 1] and told him he would be granted a visa for Australia there.
n.JTMM’s aim is to separate the Terai region from Nepal and to form an independent nation. Its actions include asking for donations, kidnappings and killings of high profile government officials. It is listed as a terrorist group.
o.He submitted copies of the following documents:
i.A letter from [a] Police office, dated [October] 2013, (with English translation) to “Whom It May Concern”, confirming that the applicant was arrested on [date] October 2013 because of his involvement with JTMM, and that he was released on bail with reporting conditions to await further orders.
ii.His new Nepalese passport issued [in] [Australia] on [date] 2015.
iii.His Nepalese Citizenship card.
Departmental Interview
The following is a summary of the claims and information provided by the applicant in his Departmental Interview:
a.The applicant obtained a new passport [in] [Australia]. He sent them a completed form, his citizenship card and the fees. The passport was issued after two months. He obtained his former passport in 2008.
b.The Delegate put to the applicant that the photograph in the lost passport did not look like the applicant. He responded that he had his hair cut [and] was younger then. His father passed away from [an illness] in 2065 (Nepalese calendar).
c.The police will harm him if he returns to Nepal because JTMM people came to his house one day and told him they were raising funds for poor people. They looked like generous people and the applicant offered [amount] rupees but they demanded [more amount]. The next day they returned and gave him a receipt in the name of JTMM so only then he discovered their identity.
d.The police think he is a member of JTMM even though he is not. He cannot go to [Country 2] because in the treaty it states that it doesn’t extend to criminals. The Nepalese authorities can easily capture the applicant in [Country 2].
e.An agent arranged for the applicant to go to [Country 1] to wait for a visa there. The applicant did not personally email the Australian embassy in [Country 1] about his [temporary] visa application but the agent used the applicant’s personal email account to contact the embassy.
f.The applicant lived in a small house in [Country 1]. He did not do any work there. He would watch television and go for a walk in the evening.
g.He had no idea the agent was sending him to [Country 1]. He did not try to obtain refugee status in [Country 1] because he had paid his money to come to Australia. He did not see the UNHCR there because he had no idea it was there. He did not speak to anyone while he was in [Country 1].
h.The applicant had [some farm animals] in Nepal. He milked them by hand. He also grew [crops].
i.The police released the applicant on condition that he report to them every Sunday and that he could not move to other places, so he could not try to move to another part of Nepal.
j.He went to Kathmandu and found an agent to help him leave Nepal. The agent told him to return to his village to wait. He flew to [City 1 in Country 1], on an [airline]. He went from Kathmandu to [another country], and then to [City 1 in Country 1].
k.He works as [an occupation] in Australia.
l.The applicant’s letter from the police was given to the applicant’s mother. The Delegate put to the applicant that the document did not appear to be genuine. He responded that he obtained it by email and it was a scanned copy.
Delegate’s Decision
The Delegate considered available country information that the government negotiated a peace deal with the JTMM who surrendered their weapons between 2011 and September 2014, and that there was no reports of them using violence after this date.
The Delegate found that the applicant was excluded from Australia’s protection by s.36(3) of the Act in that he had a right to enter and reside in [Country 2].
Information to the Tribunal
The applicant appeared before the Tribunal on 30 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.He confirmed that all the information in his Protection visa application is correct. However contrary to the information in the Department’s written decision, his father’s death was in 2004, not 2008.
b.He was born in Rupandehi. He has not lived anywhere else in Nepal. He was in Kathmandu [before] he travelled to [Country 1].
c.He worked as [an occupation] in Nepal and ran a [business]. He did no work in [Country 1]. In Nepal he made [amount] to [amount] rupees [profit]. Half of this would be spent on expenses and half he would save.
d.It cost him [amount] lakh ([amount]) rupees to travel to [Country 1]. This included the cost of his travel to Australia. His family property was sold to pay for the costs. He, his brother, and his mother were living in the family property. His mother and brother are now in rented accommodation. Half of the money from the sale of the property went to the applicant’s brother so they are supporting themselves from this money.
e.He does not want to return to Nepal because he gave donations and is scared. There is a dispute with the Madhesi people in Nepal. The applicant escaped without letting the authorities know and they can do anything like put him in jail and arrest him.
f.His problems started in October 2013. About four or five months after this the applicant went to [Country 1].
g.Every Sunday he had to go to the police station. The police would pull his hair and torture him saying that he spent money from his [business] on that organisation, JTMM.
h.The applicant gave a donation because initially they promised they would help poor people. But later he found out they were the JTMM. He gave the donation on [date] October 2013, two days before his arrest. He thinks the date in the Nepalese calendar was in the Asar month of the year 2070. In Nepal he used the Nepalese calendar.
i.At the time he gave the donation he was working at home. It was in the evening. Three people came and asked the applicant for money for helping people and social work. They said they needed [amount] rupees and he gave them [amount] rupees. They did not show him any identification but one of the people told the applicant his name.
j.The applicant gave them money because he trusted them. He trusted them because they came for help.
k.There were three people and it was evening time and the applicant was scared so he gave them money.
l.They did not tell the applicant who they were when they asked him for money because if they had given their real identity he would not have given them any money. They returned the next day and told the applicant who they were then because they had some commitment.
m.After giving the donation the people came back with a receipt and said thank you very much for your help. They returned to give the applicant a receipt and to thank him for his support. Maybe they did not give him a receipt at the time he gave the donation because they did not have a receipt. On the second day they said even Biharis are doing something for the Terai. The applicant does not know why they issued him a receipt. On the receipt there was a heading ‘JTMM’ and the donation amount. It was from a JTMM receipt book. The applicant realised the men were with the JTMM when he saw the receipt.
n.The JTMM worked in collaboration with Maoists and then they separated and they lobby in favour of Terai rights. They think Terai should be a separate country.
o.The JTMM are an armed group. The three men who visited the applicant did not have weapons. But the next day when they returned to give him a receipt they were armed. The applicant saw the JTMM men had [weapons], on their motorcycle.
p.Maybe there was a whistle-blower who told the authorities the applicant had made the donation. Madhesis don’t like Biharis because of the political situation. The applicant lived in a village. The three men must have gone to other places in the village and there was some discussion. They told other people in the village the applicant gave a donation. They would do this to show people he had given money so they should give money too.
q.The police came and arrested the applicant on the next day, which may have been [date] and took the applicant to the police station. At the police station the police shouted and screamed at the applicant and asked him where he kept the JTMM members and when he got involved. They slapped him. They thought the applicant was part of the JTMM. The applicant told the police what happened but they were not convinced. They believed he was a JTMM member. They released him because his mother came. Every Sunday he presented himself while the investigation was going on. He had to stop doing his [business].
r.The police investigated by asking the applicant if he was involved. When he reported to the police station the police would ask him the same question repeatedly. Sometimes the police were drunk and would pull the applicant’s hair and threaten him. The police charged the applicant with working for the JTMM. There was no court case against him.
s.The police did not arrest anyone else in his village. Maybe the applicant was the only one to give the JTMM money, otherwise the police would have arrested others.
t.The police gave him a letter as proof that whenever he goes to the police station that is what it is about. The letter says he was released on bail but the applicant was not charged with anything. The applicant does not know why the letter is addressed ‘To Whom It May Concern’. The police gave the letter to the applicant as proof they are monitoring him. The original is with his mother but he doesn’t know if she still has it. His mother sent him the copy of the letter by email, from a stationery shop.
u.The applicant thought his life was not safe so he should go away. The applicant did not have any difficulties leaving Nepal because there are lots of people with a similar name to his and the authorities didn’t notice.
v.The applicant can’t live anywhere else in Nepal because the situation is worse than before. There are lots of parties trying to bring conflict between Madhesis. The applicant will be arrested because of this conflict. The applicant is a Bihari. Biharis and Terais have conflict with each other because of political parties so they dislike each other and discriminate against each other.
w.The police think the applicant is involved in lots of activity and escaped from Nepal without letting them know. The applicant is Bihari so he is scared of people from Terai and police. Terai people blame Bihari people for everything.
x.He did not apply for asylum in [Country 1] because he wanted to find a good place where people respect human rights and it is secure. He did not go to [Country 2] because he could easily be brought back to Nepal. [Country 2] supports the Madhesi people. People in [Country 2] don’t respect human rights and there is no security.
y.The applicant cannot live in Kathmandu because the police targeted him and there are problems wherever he goes. The police look for old records. He just wants to live peacefully.
z.The applicant obtained a new passport while he was in Australia because he lost his old passport. He wanted it for ID. He sent a scanned copy of his old passport when he applied for a new passport. He contacted the embassy which told the applicant he had to fill in a form online. He received the passport about two months later.
Country Information
The following information is taken from a 2015 COISS research paper[1]:
[1] DIBP COISS, 2015, ‘Nepal: CI150608145103324 - Janatantrik Terai Mukti Morcha (JTTM) violence, 18 June
… the Madhesi armed group Janatantrik Terai Mukti Morcha (JTMM) splintered into numerous factions in the Terai region during the past decade. Violence by JTMM groups declined most significantly during 2014 as a result of numerous peace deals with the Government. Peace deals struck resulted in these groups surrendering their arms in return for the release of cadres from criminal charges. The most recent reports indicate that JTMM surrendered their weapons following the signing of a peace deal in order to pursue their objectives in a more legitimate way through mainstream politics with their support for the Constitution drafting process. In recent years, JTMM groups were most active and violent during the 2013 Constituent Assembly elections period. Reports generally indicate that most of the Terai region armed groups have become less active in recent times although there are reports of sporadic violence including crimes such as kidnappings and extortions prior to 2014.
Background
In 2004, Jay Krishna Goit formed the Madhesi separatist group ‘JTMM’ advocating for independence in the Terai region.[2] Goit was formerly a leader of the Communist Party of Nepal Unified Marxist Leninist (UML) and also coordinator of the Madhesi National Liberation Front of the CPN-Maoist. ‘Gradually, as he came to believe that the Maoists were not serious about the development of the Terai region, he floated a separate outfit charging the Maoist leadership of betraying the Madhesi people.’[3]
[2] Terrorism Research and Analysis Consortium n.d., Janatantrik Terai Mukti Morcha (JTMM), summary <
[3] South Asian Terrorism Portal 2014, Nepal Assessment 2014, p.44 <
JTMM pursued independence in the belief that the Terai is not a part of Nepal but was annexed by the Nepali pahade (hill people) rulers and also that parts of the Terai were ceded to them by the British through treaties.[4]
[4] South Asian Terrorism Portal 2014, Nepal Assessment 2014, p.44
…
Reports were located indicating that some JTMM factions have merged or become ‘inactive’.[5] However, information located indicates that in 2013 some continued to be individually active. Notably, the two main factions of JTMM-G or ATMM and JTMM-J are periodically reported to have unified. [6] For example, an October 2013 article reports that the ATMM (led by Goit) had united with JTMM- Jwala Singh ‘with a view to conduct armed struggle against the Constituent Assembly elections.’ …
Peace agreements
A 2014 report on militant groups in South Asia reports ‘almost all’ armed groups in Nepal have surrendered their arms or become ‘inactive’ in recent years:
In Nepal, almost all the armed groups have become dormant. Some of the important armed groups such as the Unified Communist Party of Nepal-Maoist (UCPN) and the Madheshi Janadhikar Forum (MJF) have laid down their arms and have joined the mainstream political process. Few other armed groups such as Janatantrik Terai Mukti Morcha (JTMM) have become inactive in last few years. But the ongoing political instability in Nepal has all the potential to spark the rise of armed groups again.[7]
… The 2014 US Department of State Human Rights Report for Nepal notes some criminal activity by armed groups in the Terai:
A decreasing number of armed groups, largely in the Tarai region, attacked civilians, government officials, members of particular ethnic groups, and each other. …Armed groups were responsible for abductions to obtain ransom, mainly in the Tarai region.[8]
[5] ‘33 armed Tarai groups inactive in 2010’ 2011, Republica, 17 January; ‘Armed outfits target Capital’ 2011, Himalayan Times, 17 January Housden, O 2009, ‘Nepal, A Failing State or a State in Transition’, IPCS Research Papers, footnote 76 <
[7] Institute for Defence Studies and Analyses 2014, Militant Groups in South Asia, p.8 < >
[8] US Department of State 2014, Country Reports on Human Rights Practices 2013 – Nepal, 27 February <
CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant submitted his Nepalese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Nepal. The Tribunal assesses the applicant’s claims against Nepal as his country of nationality and receiving country.
Credibility
The Tribunal found the applicant’s claims contradictory and lacking in overall plausibility. The applicant was unable to provide detail to explain the numerous anomalies in his account.
For example he could not reasonably explain why he would give a large sum of money to three strangers who turn up at his house without identifying themselves. When asked about this he gave inconsistent responses, initially stating that he trusted them because they said they were social workers, but then stating he gave them the money because he was scared as it was evening and they were strangers.
The applicant was also unable to explain why men from an outlawed terrorist or militant organisation would return the next day to give him a receipt. It is something that entailed effort and exposure by the JTMM members for no perceivable purpose. The applicant did not require a receipt and the JTMM gained no advantage or benefit by issuing a receipt. It the contrary it is something which could cause potential detriment to them. The Tribunal therefore does not accept this occurred.
The applicant was also unable to explain how the authorities knew he had given money to the JTMM. When asked about this he told an absurd story that the JTMM members went to the other villagers and told them that the applicant had given money to them, presumably identifying themselves as JTMM members. The Tribunal can again perceive no reason for them to do this. They are a Madhesi separatist group with no reason to believe or expect that local people will donate money to them, simply to emulate the applicant’s action. It is also not consistent with his claim that they hid their JTMM membership when asking for money as they believed they would not be given money if they revealed their true identity.
The applicant’s account of being arrested by police who believed him to be a JTMM member and who did not believe his denials, is also inconsistent with his claim that the police released him after just one day. If the police did suspect the applicant of membership of a prohibited organisation considered a terrorist group, they would be highly unlikely to release the applicant so quickly without any real investigation. The Tribunal also considers that the applicant’s claim that he was released ‘on bail’ is inconsistent with his evidence that the police did not charge him with anything.
The Tribunal found the applicant’s description of the police investigation of him - namely that they would ask the same question of him each Sunday he attended the police station – highly vague and incongruous. The Tribunal considers that a police investigation of a suspected terrorist group member would involve more than this pointless repetitive exercise. Their claimed actions do not support the applicant’s statement they were investigating him.
The applicant claimed he donated the money on [date] October 2013 and was arrested on [date] October 2013. The document he submitted, purportedly from the local police, also state his arrest occurred on [date] October 2013. However the applicant was unable to give a corresponding date in the Nepalese calendar for when the incident occurred, despite stating the Nepalese calendar was the one he used in Nepal. He stated it was October 2013 in the Western calendar but was initially hesitant in providing a Nepalese date. The one he did eventually provide, the month of Asar (or Asadh) converts to June-July in the Western calendar.[9] The possible date he provided for his arrest, “25 Asar 2070”, converts to 9 July 2013. The Tribunal considers that the applicant’s inability to state the date or even a near date for the time of the incidents in his native calendar, significantly undermines the reliability of his evidence.
[9] See for example the websites Nepali Date Converter, ; and calendar-nepali.com,
The Tribunal considers that the letter the applicant submitted, purportedly from the [Area] Police Office, is not a copy of a genuine document. There is no apparent reason for the police to issue such a document. It has no identifiable use for prosecution or investigation or any other official requirement. It contains text that appears to be seeking to confirm the applicant’s claim, for use as evidence by him. In the circumstances the Tribunal considers it is a fabrication.
In view of the above concerns the Tribunal does not accept that the applicant mistakenly gave money to the JTMM organisation in Nepal and was arrested for this by the local police, and required to report to them every Sunday.
Fear of Harm in Nepal
The Tribunal has not accepted the applicant’s claims to have donated money to the JTMM and been arrested by the police in Nepal.
Late in the Tribunal hearing the applicant also raised a claim to fear harm as a Bihari person in Nepal. He stated that Biharis and Terais dislike and discriminate against each other. He would alternate between the use of the terms ‘Terai’ and ‘Madhesi’. However he did not identify any actual harm to himself as a Bihari person in Nepal or any threat to him. The Tribunal also has not been able to locate any country information that indicates Biharis are at risk of harm or discrimination from other ethnic groups or anyone else in Nepal. On the information before it the Tribunal is not satisfied that there is a real chance of any harm to the applicant in Nepal as a Bihari person.
The applicant has not provided any other reason to fear harm in Nepal and none appear on the information before the Tribunal.
The Tribunal notes the applicant was able to lawfully leave Nepal in March 2014, without any adverse interest shown in him by the authorities. He was also able to obtain a new passport from the Nepalese authorities, while in Australia, without any question or adverse interest shown in him.
On the basis of the information before it the Tribunal is not satisfied that there is a real chance of any harm to the applicant in Nepal. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Nepal, or that there is a real risk he will be subjected to significant harm on return to Nepal.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa McAdam

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

[2018] AATA 284

7 February 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction