1516186 (Refugee)

1516186 (Refugee) [2017] AATA 2086 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516186
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Ms Christine Long
DATE:1 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the
applicant a protection visa.

Statement made on 01 November 2017 at 1:56pm

CATCHWORDS
Refugee – Protection visa – Fiji – Ethnicity – Indian – Fears workplace harassment – Racial discrimination – Societal discrimination – Invented evidence – No well-founded fear of persecution
LEGISLATION
Migration Act 1958, ss 5, 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 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 [in] November 2015 by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Fiji, applied for a protection visa [in] April 2015. The delegate refused to grant the visa [in] November 2015. On 25 November 2015 the applicant applied to the Tribunal for review of that decision.
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, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him/herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, a person is a refugee if he or she is outside the country of former habitual residence and, owing to a well-founded fear of persecution, is 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 that person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file in relation to the applicant which includes his application for protection visa, a CD of his interview with the delegate and the delegate’s decision record dated [November] 2015. The Tribunal also has before it the applicant’s application to this Tribunal for review, his submission in support of that application dated 25 November 2015, and a document produced by the applicant at the hearing which is referred to below.
Claims made in Application for Protection Visa
In his application for protection visa (including his personal particulars form) the applicant claims that he was born in Fiji in [date] and that he is of Indian ethnicity. He indicates that he was educated in Fiji between [year] and [year] at [educational institutions]. He indicates that he has never married. He speaks English and Hindi. He is Christian. He claims that his [sibling] (born [date]) and his father and mother live in Fiji. He indicates that he is in regular contact with his relatives in Fiji by phone.
The applicant indicates that he lived from [year] until he left Fiji to come to Australia in 2015 in [Town 1] in Fiji. He indicates that he has worked in [Town 1] as either a [occupation] or [in his family business] during the time he lived in [Town 1] in Fiji.
The applicant indicates that he arrived in Australia [in] March 2015. He travelled from Fiji on that date using a passport in his name issued by the Fijian Immigration authorities [in] 2014 (expiring 2024); a copy of the front page of his passport is on the department’s file. He indicates that he entered Australia in March 2015 legally on a visitor visa issued in Fiji [in] January 2015; the visa was valid until June 2015. He indicates that he travelled to Australia to visit family and friends.
The applicant states in Part C of his application that he left his country because of fear, abuse and harassment. He also states that if he returns he will not have a job to support himself because he was only a seasonal worker. He said that the national employment centre did not call him back after he did a training course there and they were not interested in his case. He cannot move to another part of his country because of his financial hardship.
In a statement made in his support of his application for protection visa the applicant repeats his background details including the details of his education and his religion. He outlines his political affiliation to the political party Fiji First led by Hon Bainimarama who has been elected Prime Minister. He essentially states that after coming to Australia he was amazed at the difference between his country and [Australia] and decided to seek protection from the abuse and harassment and discrimination he suffered at his workplace and elsewhere in Fiji. He mentions that he was not given the chance to [be promoted] at his work. He states that there was “gross discrimination targeted at me”. He states that the authorities of his country cannot help him as they do not have the resources to assist him as they have many important matters to deal with.
The applicant claims that if he is returned to Fiji he will be “significantly harmed and arbitrarily deprived of my life and subjected to inhuman treatment”. He states that he fears persecution, abuse and injustice in Fiji.
Claims made in Interview with delegate
The applicant was interviewed by the delegate about his claims [in] October 2015.
The applicant discussed his claims with the interviewer adding that he was physically hurt and ill treated in his country. He explained that he was pushed and ill treated by both Indo Fijians and native Fijians; they used swear words and pushing. They did not allow him to do his job. He said that he does not know why they picked on him. “I think they were jealous of me”. Later in response to the question from the interviewer about why he was harassed in his workplace the applicant said that he was harassed when he did not bring food to work because they liked Indian food.
The applicant said that he was also getting harassment outside his work.
The applicant said that he feared returning to Fiji because he has lost his job and if he returns he will be unemployed. He said that he was harassed at [Workplace 1]. He did not get the chance to do the certificate to [be able to up skill]. If he returns to Fiji he will be living in poverty because it is hard to find a job in Fiji. He explained that he was living with his parents in [Town 1]. He will be unemployed in Fiji; the [family business] does not belong to him; he was given a little portion of it only by his uncle. His uncle may say no to his keeping that share of the [business] he has been given if he returns.
When the interviewer asked the applicant whether there were any other reasons he might fear harm in Fiji the applicant said that if he returns to Fiji he may be unemployed for a year or something like that. The applicant said that even if he got the job back in the same place where he worked before, he would be back in the same situation. Maybe if he requested the job he might get it; it is hard to find other jobs. He agreed that he was employed [at Workplace 1] as a seasonal worker for [a few] months and but he clarified that he also worked [elsewhere].
The applicant said that he could not move anywhere else in Fiji because he could not afford it.
Claims Made in Application for Review
In a statement dated 25 November 2015 made in support of his application to the Tribunal for review the applicant states that he faced a lot of harassment and racial abuse in his country both with his fellow workers in the work place and also out of his work place. He repeats his claims made previously that he was not given the chance to [upskill] and was always given [the same tasks]. He states that he was requested to bring food from home to feed the ethnic Fijians and if he did not do so he was abused. He was warned that he would face further abuse if he did not bring food for the ethnic Fijians.
The applicant then makes the following claim, “When I refused to bring food for them we argued and started to fight and in self defence I stabbed a worker and ran away for my safety and still they are looking for me”. The applicant states that he has grave fears for his life in Fiji and could get badly hurt even killed if he returns there. He states that if he reports this matter to the police not much will be done as the local officers are understaffed. He asks to remain in Australia for his safety.
Tribunal Hearing
The applicant appeared before the Tribunal on 18 September 2017 to give evidence and present arguments in support of his claims. The hearing was conducted in English without an interpreter, at the applicant’s request. The Tribunal was satisfied that the applicant could ably understand English and communicate well in the English language. He told the Tribunal that he had been living in Australia for about two and a half years and spoke English before he came to Australia.
At the hearing the applicant produced his passport issued in Fiji in [2014] valid until [2024]. He also produced a copy of a document dated [February] 2017 described as a report from the Fiji Police Force in [Town 1]. This document is placed on the Tribunal file. The applicant told the Tribunal that this is a copy of a report by police of an incident experienced by his father at the family home in [Town 1] when people whom he fears came looking for him (the applicant).
The applicant confirmed at the hearing that he arrived in Australia in March 2015 and said that his visa to travel to Australia was granted some months before he left Fiji. He learned about the availability of protection visas from friends after he arrived in Australia and made the decision not to go back to Fiji after he came to Australia. He has never left Fiji before he came to Australia in March 2015.
The applicant told the Tribunal that just before he came to Australia in March 2015 he was living in [Town 1], a small town in [Fiji]; he was living there with his family just before he came to Australia. He said that he has always lived there in [Town 1] in Fiji. He explained that his family members are his mother and father and his [sibiling] who is [age] years old. They remain living there in Fiji in the family home. His father is a [occupation] and his [sibling] works [in a certain role].
The applicant told the Tribunal that before he came to Australia he was working for [Workplace 1] in [Town 1]. He said that he worked right up until he came to Australia. He agreed he was employed up until he left Fiji. His employer knew he was applying for the visa to travel to Australia as he asked the employer for documentation for the application. He said however that he did not intend to return to his job when he left Fiji. He did not tell his employer he was not returning to his job; he just did not go back. He thought he would extend his visa to stay in Australia but then he “got the idea” for the protection visa and applied.
The Tribunal asked the applicant more about his employment in Fiji. He said that he was a seasonal worker at [Workplace 1] in 2014 and worked there 5 to 6 days per week but he had worked there from 2012 as a casual. He worked as a [occupation]. He said that he was also employed by the same employer [in another role]. He agreed that he had a reasonably good job in Fiji and was always employed either seasonally or casually. He said that he also worked sometimes [for their family business].
The applicant told the Tribunal that he left Fiji because of problems he was having from people who worked for the company he worked for; they were harassing and torturing him, asking him for food and stealing food from his bag. He explained that they pushed him and he was hurt. He said that in an incident at work in 2014 he got cuts. The Tribunal asked him when in 2014 the incident occurred. He said that it occurred about June/July/August 2014 but agreed that he continued to work at the company after that time until November 2014. He said that he was not working there when he applied for the visa to come to Australia because at that time the season had closed. He explained that the crushing season ended November/December 2014 and November 2014 was the last time he worked there. The Tribunal asked the applicant what then he was doing until he left to come to Australia in March 2015. The applicant said that he was working [for the family business] where the family home was situated.
The Tribunal asked the applicant why he did not leave his country earlier than the end of March 2015 if he was afraid of harm there given that he had a passport which was issued in November 2014 and given that he told the Tribunal that his visa to visit Australia was given some months before he left Fiji. The applicant said that he did not leave because he was saving money; he borrowed money from friends in Fiji and had some savings.
The Tribunal asked the applicant more about what happened to him in Fiji to cause him to leave there in 2015. The applicant said that people who were involved in the incident were searching for him in Fiji and had come looking for him and asking for him two times in 2017. The Tribunal queried why these people would be looking for him in 2017 when the incident happened around June/July/August 2014 and why they had not found him in 2014 after the incident given that he continued to work at the same place in the factory up until November 2014 and remained living at his usual place at the [family home] in [Town 1] up until he left to travel to Australia, according to his evidence to the Tribunal. The applicant then said that he ran away from the company and went home and sometimes he did not go home; he was hiding. The Tribunal reminded the applicant that he had earlier told the Tribunal that he worked in the [company] up until the season finished in November 2014 and then remained living and working [with the family business] in the same area in [Town 1] until he left to come to Australia. The applicant said that in the incident in 2014 he hurt the person who attacked him and he fears that if he returns to Fiji they will find him and hurt him. He said that he escaped from these people after the incident; they were looking for him and he was escaping from them. The Tribunal queried why these people would be looking for him in 2017 if he returned to Fiji given that they did not hurt him in 2014 after the incident while he was working at [Workplace 1] and they did not hurt him while he continued living and working [for the family business] until March 2015. The applicant said they looked for him but he escaped.
The Tribunal asked the applicant whether he feared any other harm in Fiji. He referred to the military/security/peacekeeping but then explained that what he meant was that they did not help him; they are not looking for him. The only people who are looking for him are the people who attacked him in the incident in 2014.
The applicant explained that he did not go to the police in Fiji about the incident in 2014 but he left and came to Australia. He said that he was afraid to go to the police because he himself fought back during the incident.
The applicant agreed that he first mentioned the stabbing incident in his application for review; when the Tribunal asked him why he had not mentioned it earlier he told the Tribunal that he did not mention the stabbing incident earlier because he was too scared; he thought that he would be immediately returned to Fiji if he had mentioned it earlier.
The Tribunal asked the applicant about the document described as from the Fiji Police Force which was produced by the applicant at the hearing in support of his claims. The applicant told the Tribunal that the document was a photocopy and the police have kept the original of the document. His father reported the case to the [Town 1] Police Station. The applicant said he obtained the document from a friend/friend’s friend who came to Australia “last month” and he brought it with him. The Tribunal explained to the applicant that independent country information it had consulted about Fiji indicates that document fraud is prevalent in Fiji and it would have to decide if the document produced by him was reliable evidence of the facts in it.
The Tribunal told the applicant that it had concerns about his claims given that although he claims to fear harm in his country he delayed leaving there for some time after he had a visa and passport to do so. Also it had concerns about his claims that he feared people who were looking for him to harm him in his country given that those people did not harm him after the incident in/around mid 2014 although he worked in [Workplace 1] where the incident happened up until November 2014 and then remained living in the same area in [Town 1] [until] he left there in March 2015.The Tribunal asked the applicant if he understood those concerns and he said that he did. He said that he will be badly hurt if he goes back to Fiji by the people whom he hurt before.
FNDINGS AND REASONS
Essentially the applicant claims that he left his country and cannot return there because he feared, and continues to fear, harm from those with whom he fought and harmed in an incident which occurred around June/July/August 2014 at [Workplace 1] where he worked in [Town 1] in Fiji; he claims that in self defence he stabbed a worker in a fight at his workplace. Implicit in his claims is that the attack on him was racially motivated. He claims those people with whom he fought continue to search for him in Fiji. He claims that he cannot get protection from that harm because the authorities in his country do not have the resources to assist him as they have many important matters to deal with. He also claims that he cannot go to the police about what happened because he himself fought back in the incident and stabbed a person. The applicant also claims that he did, and will in the future suffer general injustice, discrimination, harassment and abuse/physical abuse, including because of his race, in his country both from fellow workers in the work place and also from those out of the work place. The applicant also claims that he will be unemployed in Fiji if he returns there as it is difficult to find a job and he will suffer severe poverty.

Generally the applicant claims he will be ill treated and suffer physical abuse in Fiji and that if he is returned to Fiji he will be significantly harmed and arbitrarily deprived of his life and subjected to inhuman treatment.
The Tribunal accepts that there is independent country information available which supports in a general way the applicant’s claims that he suffered some discrimination, abuse, including physical abuse, and harassment because of his Indo Fijian ethnicity and that the police did/do not always have the capacity to protect him (see DFAT Country Information Report, Fiji, 27 September 2017, especially paragraphs 3.5 to 3.10 and paragraphs 5.8 to 5.11). Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to Fiji, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
The Tribunal accepts that the applicant is who he says he is; he produced his Fijian passport to the Tribunal at the hearing.
The Tribunal also accepts the applicant’s evidence to it that prior to travelling to Australia in March 2015 he was living with his family in [Town 1] in Fiji [as] he had always done; he told the Tribunal that he has always lived there in [Town 1] in Fiji, that he was living there just prior to his coming to Australia and that his family continue to live there in [Town 1].
Further the Tribunal accepts that prior to coming to Australia the applicant was working in [Workplace 1] and had worked there as a seasonal worker or as a casual worker from 2012 and that he also worked [for] his [family’s] [business]. He told the Tribunal that in 2014 he was a seasonal worker at [Workplace 1] up until November 2014 and worked there 5 to 6 days per week but he had worked there from 2012 as a casual. He said that he was also employed by the same employer [in another role]. He agreed that he had a reasonably good job in Fiji and was always employed either seasonally or casually. He said that he also worked sometimes [for] the family’s [business].
The Tribunal does not accept as true that the applicant left his country and cannot return there because he feared/fears harm there from those with whom he fought and harmed in an incident at his workplace in June/July/ August 2014. The applicant told the Tribunal that he did not make this claim about the stabbing incident previously, that is until his application for review, and that the delay in making the claim was because he thought he would be immediately sent back to Fiji if he revealed in his initial application what he had done. The Tribunal does not accept that this explanation for the delay is reasonable or plausible and considers that if this claim were true the applicant would have made it earlier than in his application to the Tribunal for review lodged 25 November 2015. The Tribunal finds that the applicant invented this evidence about the stabbing incident in June/July/August 2014 to give him a better chance of getting a visa to remain in Australia. Further in the Tribunal’s view if the applicant feared harm in his country, and left there as he claims for the reasons that he claims, he would not have delayed leaving his country until [March] 2015, as his passport produced to the Tribunal indicates he did, when he had a passport and a visa for Australia issued earlier. He told the Tribunal that his visa was issued months before he came to Australia and his passport indicates it (his passport) was issued [date] 2014. When the Tribunal asked the applicant why he delayed leaving his country until [March] 2015 if he was afraid of harm there given that he had a passport and visa to visit Australia granted earlier the applicant said that he did not leave because he was saving money; he borrowed money from friends in Fiji and had some savings. Given the seriousness of the applicant’s claims about why he left his country and cannot return there the Tribunal does not consider that his reason for the delay in leaving his country is reasonable or plausible.
It follows from the above that the Tribunal does not accept as true the applicant’s evidence that the people/person whom he harmed was searching for him to harm him after the incident in 2014 and/or that he/they continue to do so. In the Tribunal’s view it is not consistent with these claims that the applicant remained working at [Workplace 1] after the incident until November 2014 as he told the Tribunal he did, and remained living and working at the family’s [business] in the local area in [Town 1] until he left to come to Australia; this was his evidence to the Tribunal. When the Tribunal raised these concerns about his evidence with the applicant and asked how it was that these people did not find him and harm him in Fiji before he left there, he said variously that he ran away from the company and went home, and sometimes he did not go home, that he was hiding to avoid harm from these people and that he was escaping from these people while he was in Fiji. The Tribunal does not accept these explanations are true. It considers that the applicant invented these explanations to answer the Tribunal’s concerns about his evidence.
The Tribunal has considered the document described as from the Fiji Police Force and dated [February] 2017 produced by the applicant at the Tribunal hearing in support of his claims. Given that independent country information available to the Tribunal, namely DFAT Country Information Report, Fiji, 27 September 2017, at paragraph 5.47, indicates that document fraud is prevalent in Fiji, and given the concerns that the Tribunal has about the applicant’s credibility, the Tribunal does not consider that the Fiji Police Force document produced by the applicant is reliable evidence of the facts in it.
The Tribunal accepts that the applicant suffered some harassment, abuse, unfairness and discrimination in his country as he describes prior to leaving Fiji including because of his Indo Fijian ethnicity. It accepts that in his work place he was verbally abused, pushed sometimes by fellow workers, given [the same] work [and] was not given the chance to do his job and to [upskill]. It accepts there were arguments and abuse at times in his work place including when he refused to bring food for some of the ethnic Fijians at his workplace as they requested. The applicant has consistently made these claims. The Tribunal also accepts that the applicant suffered some societal discrimination against him outside of his work place including because he is Indo Fijian. This is supported by the DFAT country information available to the Tribunal (cited above). In his initial application for protection visa the applicant said that the national employment centre did not call him back after he did a training course there and they were not interested in his case; the Tribunal accepts this claim is true. The applicant has made no other specific claims of harassment, abuse and/or discrimination outside of his workplace. The Tribunal finds that the applicant will face similar difficulties if he returns to his country but the Tribunal finds that these difficulties, considered both separately and cumulatively, do not amount to serious harm for the purposes of the refugee criterion nor do they amount to significant harm for the purposes of the complementary protection criterion.
The Tribunal also accepts that the applicant will have difficulty finding employment if he is returned to Fiji because jobs are not readily available in Fiji; this is supported by independent country information about employment and the economic situation in Fiji namely at paragraphs 2.18 to 2.23 and 2.30 to 2.32 of DFAT Country Information Report, Fiji, 27 September 2017. The Tribunal does not accept however that the applicant will face severe poverty in Fiji as he claims; it does not accept that he will face significant economic hardship so that his capacity to subsist will be threatened or that he will be denied the capacity to earn a livelihood of any kind. The Tribunal finds that the applicant’s difficulty finding work in Fiji does not amount to serious harm for the purpose of the refugee criterion. The Tribunal also does not consider that the applicant’s difficulty finding employment amounts to significant harm for the purposes of the complementary protection criterion. The applicant said that he himself worked [with his] family’s [business] in [Town 1] before he came to Australia as well as working at [Workplace 1]. While he mentioned before the delegate that his uncle might take back his share of the [business] he told the Tribunal that his family with whom he had always lived in [Town 1] was still living on the [family’s] [property], that his father was [in a certain role] and that his [sibling] was living there with his family and [works in a certain role]. The Tribunal finds that if the applicant is returned to Fiji he can return to live with his family who are still living and working there and he will have access to work [in] his family’s [business] as he did before he left Fiji.
For the reasons given above the Tribunal does not accept the applicant’s general claims that that he will be ill treated and suffer physical abuse in Fiji and that if he is returned to Fiji he will be significantly harmed and arbitrarily deprived of his life and subjected to inhuman treatment.
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). 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)(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.
Ms Christine Long
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 2086

1 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice