1517140 (Refugee)

1517140 (Refugee) [2017] AATA 1916 (11 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517140
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Meena Sripathy
DATE:11 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 October 2017 at 9:28am
CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Widowed and divorced women – Verbal abuse – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 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. The delegate refused to grant the visa on the basis that the applicant’s claimed fear of harm was not related to any of the reasons set out in s.5J(1) of the Act and therefore she was not a person in respect of whom Australia had protection obligations under s.36(2)(a). The delegate also found the claimed harm was not significant harm within the meaning of s36(2A) and was not satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act.
The issues in this review are whether there is a real chance, if the applicant returned to Nepal, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Nepal, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in the application form indicates the applicant is [age] year old woman from Kathmandu, Nepal. She states her religion as Hindu, and her marital status as divorced. She states she is in contact with her relatives in Nepal. She travelled to Australia legally on her Nepali passport issued in 2008 and valid to [2018] as the holder of a student visa. Since her first arrival in Australia she returned to Nepal on two occasions from [October] to [November] 2011 and [date to date in] February 2012. She indicates completion of schooling to the secondary school and proficiency certificate level, but provides no details of past employment.
In her reasons for claiming protection, she indicates she left her country as a student dependent and refers to details provided in a supporting statement. Her statement contains the following further information and claims: She married a [man] in April 2005, but he unfortunately died in [an] accident less than one year later. She was depressed, unstable and had lost courage in life after his death, but had the support of her family members and slowly got back into normal life and encouraged her to enter a second marriage. Living alone as a single woman in Nepal is a hard life. Her parents suggested her to marry again and introduced her to a man named [Mr A], and she agreed to meet him. She was open with him about her past and they agreed to marry and married in February 2007. She and her husband applied for, and were granted, student visas for Australia and came here in October 2008. Her husband was studying and everything was going very well for about 3 years. Slowly around June/July 2011 [Mr A] started to become irritated with her and began to make comments about her status as a widow and her age and became verbally and sometimes physically abusive towards her. He refused to answer her questions about the status of his study, and discouraged her from commencing her own course, by telling her she would be included in his temporary residence application and can save on the tuition fees in this way. After her husband returned to Nepal at the end of 2012, he was totally changed and she heard he was engaged to another woman, and they subsequently divorced. After the applicant came to know her visa had expired in September 2014, she thought about returning to Nepal and living somewhere else where her family and friends would not know her but so many things came to her mind and she could not go and ended up staying here unlawfully. She thought again about returning and even bought a ticket for [January] 2015, but then she became worried about the political unrest and decided to apply for Protection here. She requests she be granted a permanent visa so she will not have to face domestic violence and mental torture and be protected here.
The applicant attended an interview with the delegate [in] August 2015. The Tribunal has listened to the recording of this interview, a copy of which is held on the Department’s file. Included among the information provided at the interview, as recorded in the delegate’s decision record provided by the applicant to the Tribunal, she told the Tribunal her brother and his family live with her parents in the family home. Her sisters live separately, one lives apart from her husband with her [children]. She told the delegate that she married in 2005 but was widowed within the first year and after her first husband died she returned to live with her parents. She told the delegate her marriage to her second husband was genuine and they applied for a student visa after they married in 2007. She claims they lived together in Australia until they separated in 2013 and later divorced.
The delegate’s decision record indicates the addresses given at interview did not correspond to information in Department records for herself or her former husband. The delegate was also concerned that her responses to questions about her husband’s study and employment were not consistent with department records and she gave vague responses to questions about their lives together in Australia. As a result the delegate had doubts about the genuineness of the applicant’s marriage to her second husband. Ultimately, the delegate did not accept on the evidence provided that she was widowed from her first marriage or had entered into a genuine second marriage.
Before the Tribunal the applicant has provided two further changes of address, in June 2016 and again in January 2017. On 2 August 2017, the applicant advised the Tribunal she married [in] July 2017 and provided a Marriage Certificate. The Tribunal notes this document indicates both parties reside at the address provided by the applicant in January 2017.
Tribunal hearing
The applicant appeared before the Tribunal on 6 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. A summary of the evidence she gave to the Tribunal follows.
At the commencement of the hearing the applicant stated her circumstances are now different as she has re-married and she cannot now leave her current husband. She provided a copy of her marriage certificate. Her husband was present with her at the hearing but did not give evidence.
The applicant provided the following information about her current living and work circumstances. She lives with her husband and has been at this address since January 2017. His children [spend] two nights a week, and every second weekend with them. She is not yet working, but will start a new job next week as she has recently been granted permission to work. She has not worked since her last visa ceased in September 2014. When asked how she has managed financially since then, she said she had been staying with close friends/cousins until she moved in with her now husband in January. The Tribunal asked the applicant about her address history since she came to Australia. She provided the following details. She lived with a woman named [Ms B] from the time she arrived until around 2009 or 2010 at an address [in Suburb 1]. From there she moved to an address in [another suburb] where she stayed with [unrelated] people, who have all since returned to Nepal. She moved from this address to a place in [a different suburb] where she started living with [Mr C], who she met in Australia and became good friends with. She considers him like a cousin brother. She lived with him and others at several [addresses]. [Mr C] is now married to her friend [Ms B] and they were all living together at several addresses in [Suburb 1] until the applicant moved in with her now husband in January 2017. The Tribunal asked if she ever lived with her husband with whom she came to Australia originally [Mr A]. She said they stayed together at the first address only and then lived separately after that because it was cheaper for them to share rooms with groups of girls or boys. She said they did not live together from around 2010 onwards. Eventually the relationship between them ceased and they divorced in 2014.
The Tribunal asked the applicant about the study history in Australia of her then [husband]. She said he studied [a course] but she could not recall where or when he finished. He then applied for a [temporary] visa and she was included in that application. It was granted in March 2013 and expired in September 2014. The applicant confirmed that they were not living together when the [temporary] visa was granted but she did not advise the Department about this. She said they separated and divorced after they were granted the [temporary] visa. When asked what happened with her relationship with [Mr A], she said she thought he was a good person initially but later they started to have disputes. He brought up the age difference between them and the fact that she was a widow. These problems began from around 2010, and they decided it was better to live separately. The relationship got worse after he went to Nepal in 2012 and she came to know he had another girlfriend there.
The applicant confirmed that she travelled to Nepal to see her family in 2011 and in 2012. The Tribunal put to her that her return trips to Nepal on two occasions seems inconsistent with her claims that she and [Mr A] were unable to afford to live together because of constrained financial circumstances. It put to her that it may have concerns about whether she was in a genuine relationship with [Mr A] given they were living separately and she was travelling back to Nepal on her own. She made no further comment about this.
Regarding her family in Nepal the applicant told the Tribunal her parents live with her brother and his wife and [children]. Her [sister] is separated from her husband since many years ago and lives alone with her [daughters]. Her sister has a long term case against her husband in the courts to pursue her legal rights. Her [other] sister married in 2012 and is a housewife, living with her husband and [son]. The applicant said her parents try to provide support to her [sister] but they are not able to give much. She works [as an occupation] and she struggles.
The Tribunal asked the applicant about her background before coming to Australia. She said she studied to secondary school level and then commenced, but did not complete [the course]. She stopped study when she married in 2005. Her first husband died after [a number of] months in [an] accident. When asked if she has any evidence of his death, she said she does not. After that she moved back to her parents home and she was very depressed. She tried to work, but it only lasted several months. In 2007 she re-married, at the suggestion and encouragement of her parents. Her husband [Mr A] lived with his mother [and] brothers. The applicant said the family were in difficult circumstances as the father had left them some years before. The applicant said after married she and [Mr A] decided together to apply for a visa to come to Australia to pursue a better life and better income opportunities. She said another reason for her was to get away from the negative comments she received from her first husband’s family since his death, as they continued to blame her for his death and refer to her as a curse. The Tribunal queried how they were able to apply for a student visa given her husband’s ‘difficult circumstances’. She said they managed to get the money necessary for the application from various sources.
The Tribunal asked the applicant what she fears upon return to Nepal now. It noted that when she applied for the visa, she referred to fear of return because of her status as a widow and as a divorced and single woman, but she is now a married woman. She said she fears her first husband’s family. She said when she decided to marry a third time in Australia, the brother of her first husband called her father and asked why she was marrying again. He brought up the issue of the expenses of the first marriage.
When asked how this person knew of the marriage, the applicant said she does not know and assumes he may have heard about it from Facebook, although he is not a friend of hers on Facebook. When asked if she had experienced any specific incidents or harm from these relatives previously when she was living in Nepal or following her second marriage, she said they talked badly about her, referred to her as the curse who caused their brother’s death and blamed her for his death. She said they verbally tortured her such that she was unable to work in Nepal. She confirmed that was all that she experienced.
The applicant told the Tribunal she is fearful they will taunt her again when she returns. She is also afraid of being taunted and criticised by her sister in law. She will be in the same place with the same people and they will be able to find her. She is afraid she will also be taunted because her second husband abandoned her. The applicant said now she is married here and she is doing well. She does not want to leave her husband and his children are also dependent on her as she has formed a strong bond with them.
Regarding her present relationship, the applicant said she met her husband when they worked together at a factory [in] early 2016. They began as friends and it developed into a relationship during that year. She moved in with him in early 2017, and they married in July 2017. She told him about her visa situation. In September 2017 she applied for a Partner visa on the basis of this relationship. This application is pending before the Department.
The Tribunal put to the applicant that a number of issues arise from her evidence and claims. It put to her that for the purposes of the refugee criteria, the harm she fears must be for one of the five reasons: race, religion, nationality, membership of a particular social group or political opinion and asked her what basis she claims to fear harm from. In response she said she understands her case may not fit the refugee or complementary protection criteria but she cannot return to Nepal because she fears psychological harm towards her in terms of comments that will be made and taunts against her. The Tribunal put to her that the harm she fears must be serious harm and it may not consider the harm she has described comes within that concept. It also may not be significant harm as that term is defined for complementary protection. The applicant reiterated the call made by her first husband’s brother to her father several months ago. She said because of this she is afraid they will cause her harm if she returns.
The Tribunal asked the applicant if her family knows about her current relationship and what their reaction is. She said she has told them and they are happy for her and supportive. It put to her that this suggests they would support her if she returns. She said they would prefer her not to return because of concerns about her first husband’s family’s reactions. The Tribunal put to the applicant that, given the passage of time since her first marriage, and the second marriage in between then, and lack of any serious incidents or reactions from these relatives since then, it may not accept there is a real chance they will cause her serious or significant harm now. In response she said she is fearful of them and does not want to have to wait for an incident. She prefers to remain here with her husband. She does not want to be a burden on her family, who already have difficulty supporting her sister. She also fears verbal taunts from her sister in law.

The Tribunal put to the applicant that independent information before it indicates the situation for widows and divorced and single women is not ideal in Nepal and she may face negative societal attitudes and stereotypes on this basis. However, there is also information which suggests there are increasing numbers of groups advocating on these issues and there have been improvements and favourable legal changes in recent years. It may not be satisfied that the independent information supports that she will face a real chance of serious or significant harm on the basis of her status as a widowed or divorced woman. The applicant made no response to this.
She reiterated that she accepts her case may not come within these definitions but she does not want to go back now because of her marriage. The Tribunal explained that it is not considering in this review her relationship with her current husband. This and other issues relating to her current relationship will be considered in the Partner visa application currently before the Department.
She did not indicate any other reason she cannot return to Nepal.
FINDINGS AND REASONS
Nationality
On the basis of her evidence to the Tribunal, and Nepalese passport, the Tribunal accepts the applicant is a national of Nepal and considers Nepal is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant claims she cannot return to Nepal because she will face taunts and verbal abuse from the family members of her first husband who still blame her for his untimely death. She claims she was first married in 2005 and her first husband died in [an] accident after [a number of] months. She claims she subsequently married again in 2007, and travelled to Australia as the secondary visa applicant on her second husband’s student visa. She claims she separated from this husband and divorced him in Australia. Before the Tribunal the applicant advises she married again in July [2017]. She now claims she cannot return to Nepal because she cannot leave her husband and she fears being taunted and verbally abused in relation to her past marriages and on the basis that she has been widowed and divorced.
The Tribunal makes the following findings in relation to the claims she has made, after consideration all of the material before it including the applicant’s written and oral evidence and documents on the Department file.
In respect of her claimed first marriage, the Tribunal notes that no evidence of a marriage certificate or death certificate in respect of her first husband has been provided to the Department or Tribunal. The only evidence before the Tribunal in relation to this marriage is the applicant’s written statement and oral testimony. Further, her evidence to the Tribunal that she was studying in a [course] at the time of the marriage and ceased her study at that time, is not consistent with information and documents she provided regarding her education with her application indicating her last qualification was [completed] in 2001. The absence of documentary evidence of marriage or death certificate, and the inconsistency of evidence regarding her study status at time of marriage, leads the Tribunal to have some doubts about the truthfulness of her claim to be married and widowed in 2005. She has had ample opportunity to obtain and provide evidence of this marriage and death of her claimed first husband since the delegate refused the application in November 2015, and was on notice that this claim had been rejected for lack of evidence, but has still not provided any evidence. However, despite these concerns, given the passage of time that has since passed and accepting that it is possible and accepting that it is not entirely implausible that she was married and widowed as claimed, the Tribunal will, for present purposes, give the applicant the benefit of its doubt and proceed to consider the application on the basis that she was married and widowed as claimed.
The applicant claimed she married [Mr A] in 2007. A marriage certificate in relation to this relationship is included in the Department file, as are department records relating to their student visas on which they travelled to Australia in 2008. On the basis of this evidence the Tribunal accepts that the applicant was married to [Mr A] in 2007 and travelled to Australia as the holder of a dependent student visa. The Tribunal has some concerns about whether this relationship was genuine (on the basis of her inability to provide detailed or accurate evidence about his study activities and her evidence that they lived at different addresses from a time soon after their arrival) but it considers that it is not necessary for the purposes of this review (given her protection claims) to make a determinative finding about the genuineness of this relationship and on the limited evidence before it going to this issue, it will not. For present purposes, it accepts on her oral evidence and the divorce document that they divorced in June 2014.
The applicant claimed she did not return to Nepal after her visa expired in September 2014, because she feared the consequences for her as a widowed, divorced, single woman. She acknowledged before the Tribunal that she is now re-married and therefore no longer single. The Tribunal has therefore considered her claims on the basis of her current marital status.
Before the Tribunal, the applicant claimed that several months ago, hearing about her impending marriage to her Australian husband, the brother of her first husband contacted her father and made rude remarks about her. She has not indicated that anything more than words were exchanged. The Tribunal notes she referred to slurs made against her by these family members before she came to Australia. Accepting that it is possible that this contact was made and words were exchanged, the Tribunal finds that this amounts, at most, to verbal abuse. She did not indicate any further physical harm in the past and did not indicate anything more than this recent phone call has occurred now. It does not consider that verbal abuse constitutes serious harm as contemplated in s5J(5) (see legislation extracted in attachment of this decision); or significant harm as defined in s36(2A).
She claimed she also fears verbal taunts from her sister in law, and does not want to be a burden on her family if required to return. In respect of her claimed fear of verbal taunts, the Tribunal is not satisfied that verbal taunts from her sister in law amounts to serious harm within the meaning of that term as contemplated in s5J(5) (see legislation extracted in attachment of this decision); or significant harm as defined in s36(2A).
The Tribunal has considered independent information about country conditions in Nepal and specifically relating to the circumstances for women. It accepts that social attitudes and deep rooted stereotypes continue to exist in Nepal, and there may be social stigma against divorced women, who may be seen as contravening family honour,[1] however information also indicates there are groups advocating for human rights for single woman and there have been some positive developments in the law[2]. The Tribunal finds, on the basis of the applicant’s oral evidence, that her family in Nepal are generally supportive of her. She has travelled back to Nepal twice since coming to Australia and stayed with her family each time. On her own evidence, her [sister] is separated from her husband and lives independently with her [daughters] and while the Tribunal accepts her life is difficult and she may be struggling, the applicant has not indicated that she or her daughters have suffered any harm on account of their gender or single status.
[1] DFAT Country Information Report Nepal 21 April 2016, pages 14-15
[2] WHR Brief, Status of Single Women in Nepal, January 2017 >
In relation to the general security situation in Nepal, DFAT’s most recent Country Report on Nepal[3] states that the overall security situation has dramatically improved since the end of the civil war conflict in 2006, and elections for the second Constituent Assembly were held in November 2013, although it is recognised that poverty, unemployment, weak rule of law and a culture of impunity continue to be causes of insecurity in Nepal. The Tribunal also acknowledges the devastating effect of the earthquake in 2015 which killed an estimated 8891 people and injured many thousands more, and accepts that this placed further burdens on the country and individuals there.
[3] DFAT Country Report on Nepal, 21 April 2016, p 8
Taking into account its findings, the abovementioned independent information and the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution, in the sense of serious harm, for reasons of her status as a divorced or single woman, or for any other reason mentioned in s5J(1). Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.
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).
Complementary Protection criteria
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).
Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Nepal, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Nepal. Specifically, the Tribunal has considered the applicant’s claims that she will be subjected to verbal taunts or abuse or she or her family will experience psychological anguish or hardship if she were to return to Nepal as a divorced woman or for reasons of having married again. It does not accept that verbal taunts or psychological anguish or hardship as feared by the applicant is ‘significant harm’ for the purposes of this criteria and therefore, while sympathetic to her concerns about the burdens she may place on her family upon return, it is not satisfied there are substantial grounds for believing that there is a real risk she will suffer significant harm for this reason, if she is returned to Nepal.
The Tribunal has considered independent information referred to above about the security situation generally in Nepal. It finds, on the basis of the DFAT report cited above, that the security situation in Nepal has improved significantly, and there were free and fair elections in November 2013, but also accepts that there is a degree of insecurity in the country as a result of political protests, poverty, unemployment and a culture of impunity. However, having regard the applicant’s circumstances and available family support, in respect of a claim of fear of harm from generalised violence that may arise on the material, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by her personally and on that basis there is taken not to be a real risk of significant harm in respect of her under s36(2B) of the Act.
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.
Meena Sripathy
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 1916

11 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice