1516895 (Refugee)

1516895 (Refugee) [2018] AATA 1323 (23 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516895
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Shahyar Roushan
DATE:23 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 April 2018 at 12:42pm
CATCHWORDS
Refugee – Protection visa – Lebanon – Tripoli – Threats of harm by former fiancé – Fear of harm by former fiancé and armed Sunni extremist group – Fear of forceful recruitment by ISIS – Credibility issues – No real chance or real risk of serious or significant harm – Practice and Procedure – Invalid s438 certificates – Reasons not sufficient basis for public interest immunity
LEGISLATION
Migration Act 1958 ss 5H, 5J, 5K-LA, 36, 65, 438, 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 on [date] December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
BACKGROUND, CLAIMS AND EVIDENCE
The applicant is [age] years old and a citizen of Lebanon. She is a Sunni Muslim from [Town 1]. She arrived in Australia on a visitor visa on 9 November 2014. On 16 January 2015 she married [Mr A] and, on 26 January 2015, she applied for a Partner Combined visa (UK 820/BS 801). On 28 April 2015, the applicant requested a withdrawal of her application for a partner visa due to the breakdown of the marriage. On 12 June 2015, the applicant applied for a Protection visa (XA 866) (protection visa).
Application for a protection visa
In a statement attached to her application for a protection visa, the applicant made the following claims (not corrected for spelling or grammar):
I ran away to Australia through a visitor visa being the only way to legally escape and enter Australia.
I ran away from Lebanon due to the kidnap and death threats I faced by the hands of some armed militias members.
I have been threatened by [Mr B] who was chasing me, harassing me and threatening to kidnap me.
I was a student in a vocational mixed college for boys and girls in Tripoli north Lebanon; I faced harassment, discrimination and threats in 2012 after I left my fiancé because he wanted to force me to wear the veil (Hijab) and preventing me from studying in a mixed college.
On January 2012, some armed militias members attacked the college and one gunman started to shoot randomly. The police forces came to the college and I have been transferred to [Hospital] as I was unconscious. The next day a nurse told me that a person wants to see me. It was the brother of the attacker who was shooting in the college; he stated violently that his brother has been sent to jail because of me and threatened me saying: "you will see soon what it is going to happen to you and the price you must pay". My father fearing for my safety decided to send me overseas so no one can harm me. The criminals knowing that I fled to Australia attacked my parents' place in Lebanon hit my mother severely then left. They came again and hit my father on the head telling him: "you sent [the applicant] overseas, you will see what will happen to you". My father reported the matter to the police and he is currently in Australia.
I fled Lebanon due to the kidnap & death threats I faced from some armed group members because I refused to wear the hijab and to go to [Country 1] to join the fighters.
The Lebanese government and Lebanese authorities cannot protect me because they cannot themselves from the Sunni and Shiite armed militias, Al- Nusrat militias and ISIL supporters.
I ran away from Lebanon to escape the extremist armed militias who kidnap rape and kill women and girls especially those who refuse to join the militias and marry their armed members.
I cannot return to Lebanon for fear to be forced to marry one of the armed militia's members. I already refused to cooperate and a certain death is waiting for me.
Returning to Lebanon will definitely lead to my death. I am requesting the Australian authorities to grant me protection allowing me to study and settle safely in Australia.
The applicant was interviewed by a delegate of the Minister on 29 October 2015. Where relevant, the applicant’s evidence to the delegate is referred to below.
The delegate refused to grant the visa on the basis that she did not accept the applicant’s claims for protection as credible.
Application for review
The applicant applied for a review of the delegate’s decision. She was represented in relation to the review by a registered migration agent. A copy of the delegate’s decision record was provided by the applicant to the Tribunal for the purposes of review.
The hearing
The applicant appeared before the Tribunal to give oral evidence and present arguments at a hearing held on 4 December 2017. The Tribunal also took evidence from the applicant’s [sister]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
Certificates
The Department’s file relating to the applicant’s protection visa application contained two certificates issued under s.438 of the Act in respect to a number of documents on that file. It is appropriate to address the validity of the s.438 certificates. Section 438 requires that the reason specified in the certificates for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest must be capable of forming:
the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
The folios identified consisted of: a one page printout from the Department’s visa processing systems relating to the applicant’s spouse visa application, naming her, her former spouse and her sister; a printout of the Department’s movement records relating to the applicant’s father’s entry into and exit from Australia; case notes relating to the applicant’s visitor visa application; and routine case notes relating to the applicant’s father’s visitor visa application. The reason stated in the certificate issued under s.438(1)(a) was that the information contained in the folios was related ‘to an internal working document and business affairs’. The reason stated in the certificate issued under s.438(1)(b) was that ‘the document contains information about third parties’. The Tribunal is not satisfied that these reasons provide a sufficient basis for public interest immunity in this case or that disclosure would be against the public interest. The Tribunal finds the certificates to be invalid and it has proceeded to treat the documents in the usual way as if there were no certificates.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
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 themselves 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.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There were some internal inconsistencies in the applicant’s claims to the Department and her evidence to the Tribunal. These inconsistencies, however, were not so significant as to undermine the credibility of the totality of her claims.
The Tribunal, therefore, is prepared to accept that, towards the end of 2011, a man by the name of [Mr B] had proposed to the applicant. The Tribunal accepts that there are a range of militia groups operating [not] far from where the applicant resided.[1] The Tribunal accepts that it is possible that [Mr B] was associated with one of these groups. The Tribunal accepts that, initially, the applicant agreed to marry [Mr B] and they had an engagement ceremony, but the applicant subsequently changed her mind. The Tribunal also accepts that, in January 2012 in response to the applicant’s decision, [Mr B] and a few associates had fired random shots at the institute where the applicant was studying. On that day, the applicant sighted [Mr B] from afar and fainted. She was taken to hospital and the police arrested [Mr B]. He was subsequently sentenced to two years imprisonment.
[1] See DFAT, Country Information Report Lebanon, 23 October 2017.
In her written claims to the Department, the applicant stated that [Mr B] had threatened to kidnap her. Her evidence to the Tribunal did not suggest that [Mr B] had specifically made such a threat. However, she claimed that, whilst she was in hospital, [Mr B]’s brother had made threats of revenge against her. Whilst the Tribunal did not find the applicant’s evidence in relation to the threats made against her entirely persuasive, it is prepared to accept that, in early 2012, threats of payback were conveyed to the applicant. The Tribunal, however, does not accept any of the applicant’s other claims.
At the hearing, the applicant stated that [Mr B] had attacked the school because she had refused to join his militia. When asked what militia [Mr B] had belonged to, the applicant said Daesh or ISIS. However, as it was put to the applicant at the hearing, at her interview with the delegate, she had appeared uncertain about the identity of [Mr B]’s group. According to the delegate’s decision record, the applicant had initially stated that [Mr B] was a member of ‘some militia groups’. She had then stated that she was unsure of the name of the group and, finally, she had said that he belonged to ISIS. The applicant responded that [Mr B] belonged to Daesh. When pressed as to how she knew he belonged to Daesh, she said, on the basis of what she saw on television, she concluded that [Mr B] belonged to a militia called ISIS. The Tribunal finds the applicant’s evidence in this regard highly unpersuasive. Furthermore, as it was put to her at the hearing, the Tribunal has found no information in any of the sources consulted, including DFAT reports, other major foreign government reports and Lebanese and international news media, to suggest that Daesh or ISIS engage in forceful recruitment of members in Lebanon, let alone female members, to fight in [Country 1] or that they ‘kidnap, rape and kill’ women and girls in Lebanon. The applicant responded that there are people who belong to Daesh, but cannot leave the organisation. The Tribunal did not find the applicant’s evidence in this regard plausible, reliable or persuasive. The Tribunal is of the view that the applicant has exaggerated this aspect of her evidence to lend support to her claim that [Mr B] continues to be motivated to harm her. The Tribunal does not accept the applicant’s evidence in relation to [Mr B]’s motives for attacking the school and his intention to harm her now.
Following [Mr B]’s arrest and imprisonment, the applicant had continued to reside with her family in their rented accommodation [and] attend the institute. In the 12 months before she came to Australia, the applicant also worked on a casual basis at a [company]. According to her evidence, between January 2012 and [date] November 2014, she did not encounter any adverse experiences in Lebanon. Whilst she told the Tribunal that [Mr B] was in prison until shortly before her departure from Lebanon, she also told the Tribunal that he was monitoring her movements, he is powerful, he had others working for him and he could direct the actions of others from prison. The applicant did not offer any meaningful or persuasive explanation as to why neither members of [Mr B]’s family nor any of his associates had attempted to make any contact with the applicant, let alone harm her.
Moreover, the applicant told the Tribunal that, about a month before she travelled to Australia, she had seen [Mr B] from ‘afar’ when she was on her way to the institute. Following this sighting, she had stayed at home. The applicant said she did not know when exactly [Mr B] had been released. As it was put to her at the hearing, if [Mr B] wanted to harm her for whatever reason, he had ample opportunity to do so. He knew where she resided and had relatively easy access to her. However, he did not approach her on her way to the institute, he did not go to her home and he did not make any contact with her. In response, the applicant stated that, about a month after her departure, [Mr B] had attacked her family home in [Town 1] on two occasions and had assaulted members of her family, albeit not seriously. These two occasions were only a few days apart. It was put to the applicant at the hearing that her earlier evidence indicated that her parents were in Tripoli in the month after her departure from Lebanon. She responded her parents were visiting [Town 1] on the weekend. When asked why [Mr B], who resided in Tripoli, would travel all the way to [Town 1] to attack her family, she said her family lived in an apartment in Tripoli and it was easier for [Mr B] to attack the house in [Town 1]. When asked why he had attacked her family one month after her departure, she said he had attacked her family when he found out she had travelled to Australia. The Tribunal did not find the applicant’s evidence persuasive.
As already noted, the applicant stated in her evidence that [Mr B] was a powerful and connected individual, who monitored her movements. The Tribunal does not accept that, if [Mr B] was monitoring her movements and wanted to harm her or members of her family, he would have waited until one month after her departure from Lebanon to spring into action. Nor does the Tribunal accept that, if [Mr B] was a powerful militiaman seriously intending to harm her for whatever reason, he would have waited for the members of the applicant’s family to return to [Town 1], one month after her departure from Lebanon, in order to harm, harass or intimidate them for the reasons provided by the applicant, including facilitating her travel to Australia. The Tribunal found the applicant’s evidence in this regard highly doubtful and unpersuasive. In reaching this view, the Tribunal has also considered the evidence of the applicant and that of her sister at the hearing to the effect that they are both regularly in contact with members of their immediate family in Lebanon. Neither claimed that since the alleged incident in [Town 1], their family members in Lebanon have had any encounters with [Mr B] or his associates.
Finally, the applicant applied for a protection visa seven months after she arrived in Australia. The applicant told the Tribunal that she wanted to marry [Mr A]. It was put to the applicant that her marriage had ended in April 2015 but she did not apply for a protection visa until June 2015. She responded that she was new and did not know the laws in Australia. As it was put to the applicant, her sister, who is married to an Australian citizen, has been in living in Australia since 2013 and it would be reasonable to expect them to be well aware of the fact that Australia provides options for people who are in Australia and want to apply for protection. The applicant said her brother-in-law was busy and did not help. The Tribunal does not find the applicant’s explanations for the delay in lodging her protection visa application persuasive. The Tribunal is of the view that, if the applicant had departed Lebanon because she was fearful of [Mr B], if [Mr B] had attacked her family in December 2014 and if she was fearful of facing harm at the hands of [Mr B], his associates, various militias or anyone else in Lebanon, she would not have waited until 12 June 2015 to make an application for a protection visa.
For the above reasons, the Tribunal does not accept that [Mr B] had or has any intention of forcefully recruiting the applicant to any group or organisation for any purpose, including fighting in [Country 1]. The Tribunal does not accept that, following the termination of their engagement, [Mr B] wanted to force the applicant to marry him, to wear the veil and to stop studying in a mixed college. The Tribunal does not accept that, following the incident in January 2012, the applicant was harmed by anyone in Lebanon. The Tribunal does not accept that [Mr B] had attacked members of the applicant’s family one month after her departure from Lebanon. The Tribunal does not accept that any member of the applicant’s family have been harmed by anyone in Lebanon. The Tribunal does not accept that [Mr B] has any intention of harming the applicant for any reason, including being rejected by her or serving a prison sentence for his offences, during his imprisonment or after being released from prison. The Tribunal does not accept that [Mr B] had seriously intended to act upon the threats attributed to him soon after the January 2012 incident. The Tribunal finds that the threats in this case do not amount to serious or significant harm. The Tribunal finds that the threats do not give rise to any real chance of serious harm or a real risk of significant harm. The Tribunal does not accept that [Mr B], or any of his associates, has any intention of harming the applicant now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm at the hands of [Mr B], his associates on anyone else in Lebanon.

In her written statement to the Department, the applicant claimed that she fears being ‘forced to marry one of the armed militia members’. In her oral evidence to the delegate and to the Tribunal, however, the applicant did not claim that she would be forced to marry anyone, including [Mr B] if she were to return to Lebanon. Instead, as already noted, she claimed that she would be forced by [Mr B] to join Daesh or ISIS. The Tribunal has rejected this claim. The Tribunal does not accept that the applicant will be forced to marry a member of an armed militia or that she will be forced to fight in [Country 1]. The Tribunal also does not accept the applicant’s claim in her written statement that extremist armed militias in Lebanon ‘kidnap rape and kill women and girls especially those who refuse to join the militias and marry their armed members’. As noted above, the Tribunal has found no persuasive evidence in any of the sources consulted to support this claim. The Tribunal does not accept that there is a real chance that the applicant would face serious harm by anyone for the reason of her membership of the particular social group of women in Lebanon, Muslim women in Lebanon, Muslim women who refuse to marry militiamen or members of extremist religious groups in Lebanon, any subset of these groups or any other particular social group apparent on the face of the evidence. The Tribunal does not accept that there is a real risk that the applicant would face significant harm by militiamen in Lebanon for reasons related to her gender.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that, if the applicant were to return to Lebanon now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
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) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan

Senior 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 1323

23 April 2018

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Immigration

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Statutory Interpretation

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