1600149 (Refugee)

1600149 (Refugee) [2017] AATA 2213 (4 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600149
COUNTRY OF REFERENCE:                  Cote D'Ivoire
MEMBER:Rodger Shanahan
DATE:4 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 September 2017 at 11:01am

CATCHWORDS
Refugee – Protection visa – Cote D’lviore (Ivory Coast) – Citizenship – Ghana – Political opinion – Supporter of Laurent Gbagbo – Credibility issues – Used fake passport – Used Fake Identity – Conflicting oral evidence provided to the Tribunal – No real risk that the applicant will suffer significant harm
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in]December 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 Cote D'Ivoire (but who I have found to be a citizen of Ghana), applied for the visa [in] March 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that during the 2010 Ivorian presidential campaign he was a supporter of Laurent Gbagbo and a member of the organising committee for [a] candidate for the Front Populaire Ivoirien (FPI). As a member of the committee he handed out flyers, knocked on doors, attended meetings and liaised with village youths. During the campaign supporters of Mr Alassane Ouattara repeatedly threatened FPI supporters with death.
The applicant was attacked several times, including by people using iron bars and pieces of wood in his home district of Abidjan and when he was out campaigning. It was known that he was a Gbagbo supporter. While the electoral commission declared Mr Ouattara to be the winner, the constitutional court declared Mr Gbagbo to have won. Civil war ensued and many of Gbagbo’s supporters were killed or arrested.
The applicant was beaten in front of his family and arrested and thrown into prison without trial [in] April 2011. [In] April the prison was attacked and he escaped along with other prisoners. He then travelled by boat and foot into Ghana along with many others. In Ghana he hid as supporters of Mr Ouattara were entering Ghana to capture Gbagbo supporters and kill them or take them back to Ghana. Since leaving Ghana he had made attempts to contact his family but had been unsuccessful, and he had been unable to receive news of what happened to his family.
In Ghana acquaintances put him in contact with people who obtained a Ghanaian passport and Australian visa. He was not involved in the visa process and had no knowledge of what information was provided. When he arrived in Australia he did not know about the refugee process here and later was advised to consult an asylum seeker assistance group. If he returned to Cote d’Ivoire he would be seriously harmed by armed supporters of Mr Ouattara.
AAT Hearing
The applicant’s documents were gone through. He noted that his identity card for the political party in Cote d’Ivoire was valid from 2007. He was asked whether he was medically able to attend the hearing and he agreed that he was. There was a media article in French and he claimed that it referred to him – the interpreter noted that the first column mentioned a person called [Mr A] who was still persecuted by armed people who were after him because of his active role in the presidential campaign.
This was in [a newspaper] and appeared in [2017] – asked why there would be an article about [Mr A] this year, he claimed that members of the FPI who are in prison are still talking about the events of six years ago. Newspapers were still talking about the events and him. He was asked if there were photos and articles at this time, and whether there were media reports of [Mr A] at the time so the Tribunal could see that there were photos of [Mr A] and that this person was in fact the applicant. He claimed the events occurred a while ago and he would have to do some research.
Asked how he got his birth and marriage certificates, he claimed he got in contact with his wife this year. He established contact in January with her via Facebook, as well as through some friends – they were from Ghana but they went to Cote d’Ivoire and he asked them if they could go to [Town 1] to find any information about his family. He asked them this favour a long time before he came to Australia (perhaps 2014), and they went to [Town 1] in January this year and told them his wife was there. He had his Facebook account since last year but didn’t go there very much.
He was not in regular contact with his wife via Facebook but did so via Messenger. He showed the Tribunal his Messenger App and the member noted many messages in French dated during August – asked when he began using it he claimed it was around January. He was told he would be asked to show when he began using the App once it finished buffering. He got the phone last year he thought. His wife had been in [Town 1] since he left but she often went to Abidjan as well. He had lived in [Town 2] in Cote d’Ivoire.
He had been asked if he could provide his academic transcript from his study including his results by semester, and he claimed that he couldn’t because the school was closed. The founder wasn’t paying his taxes and the school was closed as a result. The name of the school was the same as that of a school in [another area] to function. Asked what he meant, he claimed that the place he studied at wanted to use the name of the good school. Asked if there was any evidence that his school had closed, he claimed that his brother had told him. It was put to him that there would be some media reports given it would be a significant event and he claimed he was unaware – he was asked to provide some evidence of the school closing post-hearing.
His brother was in Cote d’Ivoire – his name was [Mr B] and had been there the whole time. He didn’t know if his brother had a passport or had travelled anywhere. He contacted his brother sometimes by telephone, by phoning direct. It was put to him that this was an expensive way of talking to him direct by mobile given he had access to Facebook and Messenger and they were both free, rather than the very expensive mobile phone direct calls. He claimed that the last time he called his brother his brother said that he should use Messenger, but the internet connections were not good. It was put to him that he had been using Messenger to talk to his wife since January. He said he didn’t have his brother’s Messenger address, and he was asked why he didn’t ask for it. He said he didn’t know.
It was put to him that he never mentioned a brother in his protection visa application, yet he had mentioned his parents and a sister. He claimed that he decided because he had [numerous siblings] so decided he had too many to mention. Asked if he mentioned anywhere that he had this many siblings, he claimed that he never did. He saw the list and just decided to limit himself. It was put to him that the form asked for all relatives and he signed that all the information was true and correct. He could have mentioned that he had too many siblings to mention, yet he made no reference to this. He was afraid of making mistakes and thought there were too many. It was put to him that the Tribunal was trying to determine his credibility as a witness and if he spoke of an older brother yet had made no mention of him previously, this may give rise to concerns about his credibility and that it was important to be accurate.
Asked if he spoke English he said a little bit. Asked if he spoke to his doctor about his injuries and he said he did. He worked [in a certain role] in Australia. In the workplace they spoke English. He worked with other English speakers. Asked if it was reasonable to say that his English was better than just ‘a little’, he claimed that he was given English lessons as an asylum seeker and his work improved it. Asked how many English classes, he said he went twice a week for an hour and a half for two months. It was put to him that this would not make him particularly proficient. He claimed that he spoke some English from school and liked it but it got better when he came to Australia and started to speak to people.
He claimed that he was from Cote d’Ivoire and feared that if he returned his life would be in danger from the government because he had been a supporter of Laurent Gbagbo. During the elections he was in the campaign with an ex-minister [going] into the villages to support Mr Gbagbo. He was assaulted by the opposition. His role was to talk to people and explain Gbagbo’s policies. Asked if he was a member of the party, he claimed he was and was from 2007-11. He was a member without having a significant role as a decision-maker. Asked why he joined the party, he claimed that it was because of Gbagbo’s ideas. These included reunifying the country, making their economy strong, better agricultural production and better pay, better schooling.
After the disputed election result, the other people began attacking Gbagbo’s supporters. He was beaten up and sent to jail. The prison was opened and he was able to escape – he didn’t know who opened it, as there was anarchy. He went to jail [in] April 2011 and escaped the next day. This was the only time he went to jail. He decided to leave the country and go to [Ghana]. He was not the only one and lots of people did this. His wife and children were still in [Town 2] in Abidjan. Of the [siblings] some were in [Town 2] (later noted as only one) and others scattered. Asked if, after the prison break he tried to go to his family or to one of his [siblings], he claimed that there was anarchy and shooting and he had been with Gbagbo so he didn’t want to risk harm to himself or his family. Some siblings supported Gbagbo but he was the only active campaigner.
In Ghana he had to hide (as did other Ivorians). The Ivorian government supporters came to Ghana to get the Ivorians who had fled. He mentioned a senior person who had been taken. It was put to him that he said he was a low-level person and was asked if these people were also targeted. He claimed that once this person was taken he became scared it could happen to him. Asked when this occurred, he claimed it was 2012 but others were arrested until 2014. Asked if he registered with the UN in Ghana, he claimed that even when people had, government supporters still came and took people back to Ghana. Asked if he had any evidence that this kidnapping occurred, he claimed he heard people say this but didn’t have any evidence. Asked if he applied for protection in Ghana, he claimed he didn’t. He didn’t research as to whether he could or not as he was afraid and didn’t know where the information would go.
He was advised about the principle of the first place of safety and the fact that he had not done anything about seeking protection in Ghana (or registering with the UN) and this could raise questions as to whether he feared serious harm or had come to Australia seeking economic advancement. He claimed he didn’t know what steps to follow. He was asked what steps he took to find out given he claimed he feared being killed. He claimed that he was scared and didn’t have much information and heard people were being arrested and sent back to Cote d’Ivoire.
He decided to leave in 2014 because the situation was dangerous. He contacted some people who got him a passport. He was asked how, given he claimed he didn’t know how the system worked in order to apply for asylum in Ghana yet he could find the means to obtain a fake passport in Ghana. He claimed that he found people in his district to help him. Some Ivorians helped him to survive economically.
In order to get his passport he got a loan to pay USD [amount] and give them two identical photos. He received his passport and was later told that he got the Australian visa. They organised everything. He went to the airport and three people checked his passport and they escorted him to the plane. He never asked to come to Australia – they did everything. He had nothing to do with the Australian embassy. He only provided two identical photos, one of which ended up in the passport.
Since he had been away people came to his house looking for him but they didn’t do anything to his family, but they moved away. In Cote d’Ivoire he had worked [in a certain role]. Asked if he had bank accounts in Cote d’Ivoire he claimed he did and was asked to provide copies of them. Asked how he obtained his Cote d’Ivoire ID card, he claimed that in 2008 he obtained it as people enrolled him. Asked how he got hold of his card given he escaped from prison with nothing. He claimed that he asked people in Ghana if they could find out anything about his wife, they did that, and she gave them his ID card. He asked a friend to forward it to him in Australia. Asked when his friends spoke to his wife in Cote d’Ivoire and get his card, he claimed it was in 2013 in his house in [Town 2]. Asked why he didn’t have it on him when he was arrested, he claimed that he didn’t.
He was advised about s 424AA and it was put to him that he had presented a copy of his FPI (political party) membership card and said he had been a member from 2007-11, yet during his DIBP interview he specifically said that he was not a FPI member, as members needed cards. Later he was asked why he didn’t join the party, and he stated that he just agreed with their ideas but didn’t want to join. Under oath he had given two different stories which could impact on his credibility as a witness.
He claimed that this was true but thought as he had left the country he was no longer a member. It was put to him that this was not the question he was asked, and he claimed he didn’t understand the interview question. It was put to him that he was asked related questions twice and answered them coherently and specifically. He repeated that he didn’t want to be in politics anymore because of what happened to him.
Also under 424AA it was put to him that he had claimed that he got his Ivorian ID card when people in 2013 had seen his wife and family in their family house in [Town 2] and retrieved his ID card yet during his DIBP interview, he had said that he had no contact with his family since he left prison in 2011 and didn’t know where they were because of what was occurring in Cote d’Ivoire. This was again inconsistent. He claimed that his wife told them his wife was traumatised and that if he contacted her she might be scared and possibly threatened.so he decided not to contact her any more.
Also under s 424AA it was put to him that there was a copy of his photograph and fingerprints that had been taken in Ghana at the Australian High Commission which were a match for those he gave as part of his protection visa. Yet he had claimed he had only given two photos and USD [amount] and had nothing to do with the Australian embassy. There were also different photos of him in his passport and [another country] visa in his passport. There were three different photos of him in his passport and visas and his fingerprint and photo taken in Ghana which could only have been taken were he physically there. The information he had given was different to what the government possessed. This raised queries about his credibility and his nationality and identity.
He claimed that he was really [Mr A] from Cote d’Ivoire. He was asked why his photo and fingerprints had been taken in the Australian High Commission in Accra which meant he was physically there. He claimed that he didn’t know. Other people had provided the passport to him. It was again put to him that he must have been there at the High Commission and there were also different photos in his passport. The concern was that he was Ghanaian national who had applied for a visa to Australia. He again said that he didn’t know.
Also under s 424AA it was put to him that as part of his visa application there were statements of account from Ghana under the name [Mr C], which was the same name as in the passport, two visas, a criminal check from Ghanaian police and a travel insurance policy. There was also a second passport issued in [2014] on top of a [2008] Ghanaian passport. Asked why he would have two passports, he claimed that he didn’t know and was scared and wanted a passport. Asked how he got two passports with his face and his name, he claimed that he didn’t know.
Also under s 424AA there was a discrepancy between the Ivorian ID card and the signatures on the visa applications. This called into question how valid the Ivorian ID card was. He claimed that just before the elections many ID cards were issued, and people had to sign a document to get it. The signature wasn’t the same people would put on an official document like a bank account. The queues were long so he just signed quickly and left.

It was put to him that country information indicated that Ghanaian citizenship could be granted by descent. He spoke good French but there were great concerns about his credibility and truthfulness and it was entirely possible that he could have been from West Africa and gained citizenship or a Ghanaian who spoke good French. He claimed that if he made a mistake it was because he was scared and he was from Cote d’Ivoire.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa [in] November 2014 on what he claimed was a false Ghanaian passport. He applied for a protection visa [in] March 2015. For reasons explained below I believe that his Ghanaian passport is genuine and that Ghana is the applicant’s country of nationality.
The applicant is a [age] year old, allegedly married male. He claimed that he was a national of Cote d’Ivoire and that he would be killed by the government because he had been a supporter of the failed candidate Laurent Gbagbo.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the medical document provided by the applicant in support of his claim. He was asked if he was medically able to attend the hearing and he confirmed that he was. I do not accept, for the reasons set out below, that the inconsistencies apparent in his evidence can be explained by any medical reasons.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness. I find that he fabricated his claims and consistently lied under oath and in a statutory declaration in order to be granted a protection visa.
Making false claims in a statutory declaration
The applicant’s completed a statutory declaration (folio 67/68) on 3 July 2015. As will be outlined below, the document makes many deliberately false claims that relate to his identity and nationality, participation in a political party and assaults, and imprisonment that he claimed to have experienced.
Identity and Nationality
I am not satisfied that the applicant is [Mr A] from Cote d’Ivoire but rather find that he is a national of Ghana by the name of [Mr C]. In support of his claim to be Ivorian is the fact that he speaks French to a sufficient standard to conduct the hearing in. He has also presented what he claims to be an Ivorian identity card (Folio 30/31). I note that a document check (folio 87) indicated that both the card and the Ghanaian passport were legitimately manufactured documents (folio 87).
Regarding the ID card, the signature contained on it is demonstrably different from the signature used by the applicant on his visa applications. I do not accept that his ID card signature was different to that which he would put on official documents or that he just did it quickly and left hence it was different.
Regarding his French language proficiency, I note that in Ghana French is taught to junior high school as a compulsory subject and then as an elective in senior high school. Ghana is bordered by French-speaking states and the West African economic body (ECOWAS) has eight of its 15 members as French-speaking countries so it is plausible that a Ghanaian adult [would] be conversant in French.
It is also possible to become a naturalised Ghanaian citizen and this could also account for his French proficiency if he had been born in a French-speaking West African country. Although he claimed that he only spoke a little English, he was able to work with colleagues who only spoke English, and was able to present to and conduct his medical appointment with a doctor who only spoke English. I am not satisfied that the small amount of English he had received since being in Australia and his experience after would have made him this functional in English.
I also place little weight on the documents that he provided (marriage, birth certificates), media article about [Mr A] and [diploma]. They are all photocopies that could have been produced on any home computer. The alleged media article refers to a [Mr A] although there is no photo to accompany it to check that the applicant is that person. Given that he claimed the media were still talking about him years after the event, he was asked to provide some media articles with photos that would support his claim to be [Mr A]. He failed to do so.
Prior to the hearing he had been asked to provide his academic transcript from his college yet failed to do so. He claimed that the college shared its name with a more prestigious one in another town but that the founder hadn’t paid his taxes so it was closed down. He was asked to provide some evidence that it had closed down post-hearing yet failed to do so. When asked how he knew it had closed down, he claimed that his brother [Mr B] had told him.
The applicant never indicated that he had any brother in his protection visa application, only a single sister (folio 20). I do not accept that he actually had [number] siblings but there were too many to mention so he didn’t write them down. I find this a completely implausible explanation n. I also find it implausible that the applicant would keep in touch with [Mr B] by calling him given the expense involved, where there were other free options available such as Facebook or Messenger. I also do not accept that he didn’t use Messenger because the internet connection with Cote d’Ivoire wasn’t good, given he also claimed that he had been in contact with his wife since January using Messenger.
He was also asked to provide copies of his Ivorian bank account statements yet failed to do so post-hearing. I do not accept that this was because the account had been frozen, its contents confiscated and his cousin’s brother (who was authorised to receive his statements) told to go away. Not only does it make little sense why he would nominate his cousin’s brother as the recipient when he has [number] siblings, this account relies on his oral evidence which I have found lacks credibility.
I place much greater weight on the Ghanaian documentation available to me, and the applicant’s fabrications surrounding his possession of it. He has claimed that he paid a person to get him his Ghanaian passport and Australian visa and airline ticket, that the only other thing he gave them was two identical passport photos and that he had never been present during the interaction with Australian authorities at the embassy.
However, his biometric details [were] gathered at the time of his application in Ghana (folio 110) which could only have been done if he were physically present. He has also provided a [Ghanaian] passport (folio 97) issued in [2008 that contains [other countries’] visa, as well as a [Ghanaian] passport issued in [2014]. I note that Ghana introduced a biometric passport in May 2014 ([there] appears to be such a passport) that incorporated [security] features, and that old passports could be swapped for the new biometric ones. This further reinforces the view that the applicant is a Ghanaian national. When asked he was unable to explain how he came to have two passports.
In addition, although he claimed that he only provided two identical photos to gain his passport, the photos in his two passports and police check (folio 94) are all different which indicates that several photos over several years have been used. He has also provided computer-generated bank statements from a Ghanaian bank that date to July 2014 in support of his visa application.
Other Issues
Because I do not accept that the applicant is Ivorian, it follows that he was never involved politically in that country, was never assaulted or imprisoned because of it or that he had to flee to Ghana, leaving behind his family. This is reinforced by some inconsistencies during his evidence. He had told the DIBP delegate when asked, that he had never been a member of the FPI because you needed a card for that, and later that while he agreed with their ideas he didn’t want to become a member. Yet he produced at hearing what he claimed was a membership card for the FPI and claimed at hearing that he had been a member from 2007-2011. I do not accept that he didn’t consider himself a member because he had left the country or that he hadn’t understood the question at interview. The questions and his answers were both clear and unambiguous at interview.
The applicant never registered with the UN when he arrived in Ghana and I do not accept that this was because he didn’t know the system for seeking protection or registering with the UN or because opposition members were being kidnapped and taken back to Cote d’Ivoire. He was asked to provide country information to support this claim post-hearing but failed to do so. I am also not satisfied that the applicant would be incapable of finding out the method for registering with the UN in Ghana, yet be able to find contacts who could provide him with a fake Ghanaian passport and a real Australian visa.
I also do not accept that he lost contact with his wife and children and didn’t know what happened to them. In his statutory declaration of 3 July 2015 he stated that since he had left Cote d’Ivoire he had made attempts to contact his family but had been unsuccessful and had been unable to receive news of what happened to them. Yet in the hearing he claimed that friends from Ghana had gone to his family’s house in [Town 2] in 2013, seen and spoken to his wife and retrieved his Ivorian ID card from her. I do not accept that she then said she was traumatised and if he contacted her she might be threatened, so he didn’t. Yet he then allegedly began to contact her via Messenger in January 2017.
I have taken into account the photos that he presented of scarring on his [body]. The medical report simply says they are [details deleted]. There are any number of ways in which such scarring could have occurred and I lend it little weight in determining the veracity of the applicant’s claim. I lend much greater weight to the substantial inconsistencies in his claims.
Because he has made no claims in relation to fearing serious harm as a Ghanaian national returning to Ghana, I am satisfied that he is free to return to that country. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason set out in 5J(1)(a) either now or in the reasonably foreseeable future in either Cote d’Ivoire or Ghana.
Complementary Protection
Because I do not accept that the applicant is an Ivorian national by the name of [Mr A] (but is actually a Ghanaian named [Mr D]), that he was ever politically active in Cote d’Ivoire, was assaulted and jailed because of it, fled to Ghana or was separated from his family I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
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 2213

4 September 2017

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