1600599 (Refugee)

1600599 (Refugee) [2018] AATA 218 (8 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600599
COUNTRY OF REFERENCE:                  Israel
MEMBER:Rodger Shanahan
DATE:8 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 08 January 2018 at 8:20am

CATCHWORDS
Refugee – Protection visa – Israel –Domestic Violence Victim – Husband has a relationship with another woman – Applicant failed to supply evidence of divorce documentation to the Tribunal – Claims husband threatened to harm primary applicant and children – No real risk of significant harm –Unreliable evidence – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H(1)(a)-(b),. 5J(1), 5J(2)-(6) , 5K-LA ,36, 36(2)(a)-(c), 36(2A)- (2B), 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] January 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be stateless, applied for the visas [in] February 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant entered into a marriage in which there were heated arguments – on one occasion she visited a friend of hers without letting her husband know and she was brutally beaten by him when she returned. She was harassed in her marriage on numerous occasions and admitted to hospital a few times suffering shock and trauma. He wanted to control her more so they moved into his family home while he built an apartment on the top level for them. She had a child while they were there.
In 1996 they moved with his family to Jerusalem. Her husband ran his own business although she never knew what the exact nature of that business was. He was controlling of her and only allowed her to visit her family or to attend church.
She gave birth to their second child, [but] her husband started beating her and accusing her of telling family secrets outside the family home even though she had only been going to confession. He forbade her from going to church and told her that his Muslim friends’ wives kept their mouths shut lest the husband marry someone else. She tried to live her life through her children as a result.
She had a third child in [year] but things between her and her husband were becoming worse and he was having closer relationships with his Muslim friends. She began to suspect there was another woman as he began to spend nights away on work commitments even though he seemed to be earning less money. She spoke to his family about it and they shared her concerns and said the other woman was Muslim.
She told her own family and they believed her but were only concerned about how the woman’s family would allow such a thing to occur. They came on her side though and told her husband the marriage was finished but he refused to divorce her and the church was opposed to divorce unless she could prove adultery.
She stayed with him as she was scared that she would lose custody of the children if they divorced. The Israeli legal system would not grant a divorce unless the church approved it. She then began to think of ways to escape with her children and prove to the church her husband was an adulterer. She sent her daughter to [Australia], supported by her family here.
She obtained a visitor’s visa to see her [Relative 1] who is with [a foreign] delegation in [an Australian city] but had to get permission from her husband as they had some legal matters between them and he was against her traveling even to see their daughter. She was happy here, approached a lawyer and told him about her husband – after he investigated he found that her husband was married to the Muslim woman.
She was devastated given he could only have done this if he had converted to Islam. She managed to get divorce documents and tried to ignore her husband’s family’s threats but when they threatened the children she became really concerned. If she returned no one could help her, her husband would take them off her and force them to adopt his religion and she would be harassed and abused by him and his Muslim friends. She had received numerous threats via telephone and [social media] saying she didn’t deserve to live. She then decided to seek protection.
AAT Hearing
The applicant was asked about links to the [social media] page for her husband, rather than just photocopies. She claimed that she only had the photocopies. She was asked for the [social media] link so the Tribunal could view what activity occurred before and after the photocopied pages she had submitted. She said that she didn’t have her husband on her [social media], but that she still had her account. The adviser stated that he would ensure the link to her [social media] site would be provided post-hearing.
The adviser also claimed that the divorce lawyer would send a letter on his letterhead saying how the divorce proceeded. He was asked if the adviser would present contemporaneous communication between the lawyer and his client, and he claimed there was [social media] communication. It was put to him that it would be unusual that communication with a law firm would be done by [social media] and a letter could easily be forged so contemporaneous communication (via email) would have more weight placed on it.
She claimed that her lawyer asked for proof that her lawyer in Palestine existed – she didn’t have his email address and only communicated via [social media]. She was asked how the Tribunal would be able to ascertain that the [social media] site belonged to the legal firm in question. She claimed she couldn’t remember exactly but he may have sent an email – it was over two years ago. She would look for an email. It was again pout to her that it would be strange for a legal firm to communicate via [social media] and she should provide some evidence that this was the firm’s preferred method of communication – the Tribunal had not heard of this method being used for legal communication before.
She claimed that if she returned to Israel her husband may take her children and that if she returned he would harm her. She didn’t know why he would do this but he had caused her harm for a long time. She also said she would be harmed because she had left with the children and stayed in Australia.
There had been problems from the first day they had been married. He left her alone for hours and days without coming home, and wouldn’t allow her to visit her friends – only her family. She was only allowed to go to the church. Later, he would bring his friends home who were strange and they turned him against her. They asked why he allowed her to go to church. This began occurring from around 1996.
Asked what she meant by strange, she said they were Muslims and they made him change. Once she was playing with her son and her husband came behind and struck her with the toy with which they had been playing. He never cared for the children and she did everything for them. This included taking them to the hospital. He had people supporting him and he threatened that if she ever came back he would harm her.
He as verbally abusive to her and sometimes struck her in Israel. He also swore at her family. He was never reported to the police, but she told his family. They told her that her husband was looking after her. This got worse after she had her son in [year]. She became depressed and contemplated suicide but was afraid of what would happen to her children. She had seen a [doctor].
Asked what happened after 1998 and if the police were ever called, she said that she spoke with the priest. Her own father told her that they did not have divorce in their religion and she should stay married forever. Even if her husband [abused] her. Asked if her husband’s family was aware of his strange Muslim friends after 1996, she said they would but they wouldn’t talk to him as he could do anything he wanted to.
After 1996 she and the children would go to church regularly but not every Sunday. Her husband would not go. The children were baptised and her husband attended as this was family tradition. Asked what his Muslim friends thought of the children being baptised, she claimed she never heard their opinion. The children went to a [private] Christian school. Asked if her husband and his Muslim friends were okay with this, she claimed that even Muslims allowed their children to go to this school. Asked if Salafists would allow their children to go to this school, she claimed they would if they wanted a good future for their children or had lots of money.
Asked if she had tried to leave her husband at any point after 1998, she claimed that she wasn’t able to because of what her father had said. She had a big fight with her husband once and went to her family home but they sent her back to her husband. Asked if she had been overseas, she claimed that she went to [Country 1] in 2013 with the children. Her husband didn’t come. She went to her [Relative 1]’s house in [a city in Country 1]. Asked why she didn’t apply for protection in [Country 1], she claimed that it didn’t occur to her. All of her husband’s family were in [Country 1] and they wouldn’t have left her alone. Perhaps he would come to [Country 1] and take the children away. It was put to her that if she had claimed protection because of her husband and feared they could be taken away, [Country 1] authorities could have put a block on the children leaving the country.
Her mother had just passed away and she was feeling down and her mental state was not good. Her [Relative 1] arranged and paid for everything. They were there for about a month. Asked why her [Relative 1] couldn’t have facilitated her [Country 1] protection application if she explained the situation to him, she claimed that it was difficult and she hadn’t thought of it. her [Relative 1] was also going through his divorce procedures at the time. She was asked to provide a copy of her [Relative 1]’s divorce post-hearing and she said that she would.
She had travelled to Australia previously with her mother in 2007. Asked if she thought of applying for protection then, she claimed that none of her children were with her at the time. Asked why she applied for protection when she did, she claimed that she applied two months after she arrived, which was around the time she was threatened by her husband.
Asked to outline the timeline, she claimed that she entered on a visitor’s visa to visit her [daughter]. They stayed over Christmas and then her husband started threatening her, saying he was in a relationship with another woman and his group of friends may harm her. The threats began a month after she arrived, which would be January. He had not done this before but thought that perhaps he had found another woman and didn’t want her to come back. She didn’t really know. Asked if she reported the threats to anyone, such as Israeli police. She claimed she hadn’t and there’d be no-one to help, as they were Arab.
She went to her lawyer and then to [an international humanitarian organisation] for help. Asked about the divorce certificate that had been provided, she claimed that she began communicating with a lawyer in Israel, who advised her that her husband had begun divorce proceedings. She had asked a divorce previously, but his divorce suddenly changed once he began a relationship with a Muslim girl. She had already had the lawyer in [social media] (as a friend from church) and he told her that the divorce proceedings were underway from her husband. Asked how the lawyer became aware, she claimed the lawyer worked for the priest who handled divorce cases in the church.
The divorce was granted and she was sent the certificate by the lawyer. Asked about custody of the children, she claimed that the children were with her and by law she was entitled to have custody. He didn’t care but lately had become interested. It was put to her that there was no determination about custody or division of assets that the Tribunal had, and she claimed that she was entitled to the children by Israeli law. She was asked to provide country information to this effect as the Tribunal’s information did not indicate that this was the case. Indeed, country information said that the religious or civil system could determine this, depending on which was engaged first, and it had been colloquially referred to as a ‘race’.
Asked if she had evidence of custody or estate distribution, she claimed that she had nothing in her name and had no assets. It was put to her that the court would then divide the assets so she got something and maintenance for the children if she got them. She claimed she had not been told anything about that and her lawyer said she would not get anything as she had taken the children. The divorce had occurred February [date]. Asked if she had been advised that there was a religious court meeting to discuss her divorce, she claimed she knew nothing about that.
Asked how she knew nothing about it given her friend (and lawyer) allegedly was the lawyer advising the priest in charge of divorces. It appeared very strange that she would know nothing about it, her lawyer wouldn’t have mentioned it, or the court would have advised her about it and asked for her submissions. She claimed the lawyer wasn’t a personal friend, she just knew them as the community was small and everyone knew everyone else. He would also be a friend of her husband and she was sure her husband had paid the lawyer money to do this. It was put to her that if everyone knew each other it was strange that her own family hadn’t heard about her church divorce hearing, or the priest may have heard and alarm bells would have gone off with them that she may know nothing about her own divorce proceeding.
She claimed that she had only one sister there who had no contact with other people there. So there was no way for the religious court to tell her about the court proceedings. Asked if she had copies of the original documents as the ones he had appeared to be photocopies with a stamp affixed. She claimed that she would have the original and was asked to provide it. She had not heard from her husband since. Asked why there would be problems with him given two of the children were now adults and he had not been in contact, and she claimed that she didn’t know what he would do, but he had threatened her in the [past].
He began having irregular contact with the children. It was done by [a smart phone app]. Asked what he wanted, she claimed he wanted her oldest daughter to marry someone. It was put to her that she had approached the lawyer and found that her husband was actually married to another woman. Asked when he was married and how the lawyer found out, she claimed that her husband told her this. He told her via [social media] in January after she arrived in Australia. Asked how he could be married if he was not yet divorced from her.
She claimed that he may have converted to Islam. Asked how he could be divorced in the church court if he had converted to Islam as he would now no longer be Christian, she claimed that she didn’t know exactly what he did. He may have done the conversion secretly, or he may have been divorced and then converted. She no longer wore her wedding ring – the one she had on wasn’t a wedding ring.
Asked whether her husband wanted her, or her and the children to return, she claimed he wanted the children to return and her oldest daughter to marry someone and her son to be involved in his work, and for her to return so he could hurt her. He would use his youngest daughter to torture her. Asked why he would threaten her via [social media], divorce her and leave her nothing if he wanted her to return. He was doing everything he could to dissuade her from returning. She thought that perhaps the threat was a warning when he wasn’t really thinking.
The witness was brought in and the hearing thereafter conducted in English with paraphrasing for the applicant. She claimed that she had been to Jerusalem and had witnessed financial, verbal and emotional abuse from her husband and the husband was distant and not engaging with the children. She was asked what the financial settlement was from the divorce court and she said she didn’t know what the outcome was, but the applicant refused any support and didn’t get anything.

The adviser asked if the Tribunal wanted to hear from the children and he was advised that it was established at the start of the hearing that they had no separate claims from that of their mother and that unless they had something else they wished to say it was not the Tribunal’s intention to take evidence from them. The adviser noted this. The applicant then said that she had a legal representative acting on her behalf and she had signed a power of attorney prior to arriving in Australia. After the problems began with her husband he advised that he would divorce her as long as she waived all her rights. They could provide a sequence of events and more paperwork. The applicant was not well educated and was sick and this affected her memory.
She also claimed that her husband’s [social media] account had been deactivated and she would try to get some screenshots if possible. All the communication with her legal representative were available on [social media] and a link would be provided. She claimed that she was afraid of returning because she would have to accompany her daughter if she was to return. He claimed that the children were willing to give evidence and had memories of him. He had forced her daughter to work from the age of[age].
Asked what financial relationship the applicant had with her lawyer and how she paid the account, she claimed that he didn’t ask her to pay him. It was put to her that the lawyer was doing work for her and surely he was charging her. She claimed that he didn’t do the work, he did it for her husband. It was put to her that the adviser had said she had given her lawyer a power of attorney and he was doing work for her. She repeated that she hadn’t been asked to pay her lawyer anything. Concerns about the nature of communication between the applicant and lawyer (via [social media]) were again mentioned and may have been done retrospectively, as were concerns regarding the lack of documentation regarding the divorce. A divorce occurring without any input from her, in a close-knit community was also of concern. She claimed that she had told the truth. She wasn’t sure how the divorce occurred without her knowing but it had.
Additional video hearing
The applicant was advised that a serious allegation regarding [mistreatment] by her husband over 13 years against her by her husband was raised by her representative post-hearing. Because of its seriousness and the lateness an additional hearing had been arranged. She said she couldn’t raise this in front of the children during the last hearing. Asked why she didn’t ask the children to leave, she claimed she didn’t know she could ask her children to leave while she discussed it.
Asked if the issue had been raised with the police in Israel or Australia, she claimed that it occurred in Israel and nobody supported her so there was nothing she could do. It was put to her that with the lack of any evidence or report to authorities it was difficult to make a finding. Asked if she had approached any shelters or women’s groups in Australia about the issue, she said she may have mentioned this to [an international humanitarian organisation] but didn’t go into details.
She said she had been referred to a [medical practitioner] by the hospital. Asked if it was about this particular issue, she claimed that she suffered from depression and had been referred. She reiterated that there was a lack of support in Israel and couldn’t go to the police. Asked if there were any women’s support groups in Jerusalem that she could have gone to, she said she was too scared and stayed at home. Asked about approaching Australian groups, she repeated that she had been referred to a [medical practitioner] and would go to see him/her. This had only occurred to her not her children.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia for the second time on [date] December 2014 and applied for protection on [date] February 2015. I have sighted a copy of her Israeli travel document and ID card and a copy of her [Country 2] passport. I accept that the applicant is stateless and that Israel is her country of habitual residence.
The applicant is [an age] year old mother of three who claims to be divorced. She also claimed that if she returned to Israel her husband and his Muslim friends would harm her, take the children and force the children to convert to Islam.
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 found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that she fabricated her claims in order to be granted a visa.
Divorce
I do not accept that the applicant is divorced from her husband. Her account of the entire process was vague, and documentary evidence to support the claim either lacking or such that little weight could be given to it. To begin with, she claimed to have been unaware that divorce proceedings had been initiated, let alone finalised. This apparent ignorance of the court proceedings is at odds with her claim theirs was a small (religious) community and everyone knew everyone else. It is also strange that as a committed church goer (in alleged contrast to her husband), that the priests would not have sought to contact her via her family or the church in Australia regarding the issue.
I place no weight on the vague claims made post-hearing regarding information obtained by the applicant through a [social media] friend of hers that the bishop had originally suggested to the applicant’s lawyer that the applicant should admit to adultery in order to obtain a divorce. And that when the applicant refused to do this, the lawyer colluded with the applicant’s husband (while still claiming to act for the applicant) to obtain a divorce using the same adultery reason. These came well after the hearing and only after the doubts regarding her claim had been outlined to her.
There are a range of other inconsistencies in her claim regarding the divorce. For example there is nothing at all mentioned about, nor is she remotely aware of what if any decision was made regarding child custody and visitation, alimony, division of property or the like. Country information[1] indicates that either the religious or the Family court can determine the arrangements, depending on which system was approached first.
[1] accessed 15 August 2017
I do not accept her claims that by Israeli law she was entitled to the children (she was asked to provide country information to this effect post-hearing but none was provided), that her lawyer told her that she would get nothing because she had the children, or that she had nothing in her name and no assets. If this were the case then it would be even more reason for the court to order her (ex)-husband to pay alimony and maintenance. I do not accept her sister’s claim that the applicant had refused any support, given she also stated that she didn’t know what the settlement was, and the applicant has not previously mentioned that she refused anything.
Finally, although she claimed that the lawyer was acting for her at the same time as her husband (‘to get double benefits’ according to the post-hearing submission) she was unable to provide any evidence of the type of correspondence one would expect between a lawyer and a client. This includes a copy of the power of attorney the adviser claimed the applicant had signed with her lawyer. She claimed that all her correspondence with the lawyer was done via [social media] and that the Tribunal would be provided a link post-hearing, however none was provided.
The claim that her husband and the lawyer were in cahoots is also inconsistent with her original claim (folio [number]) that her lawyer had investigated her husband’s alleged relationship with another woman and found out that he had married her. It makes no sense that if he was fixing with her husband to get a church divorce based on fraudulent allegations of the applicant’s infidelity, that he would reveal to the applicant that her husband had married another woman.
I give little weight to the post-hearing evidence that contained what was allegedly an email correspondence with the lawyer in 2015. It simply appears to be some forwarded emails from Hotmail addresses [email address deleted] without any indication as to who these people are. None of the attachments have been included, nor is there any indication of any actual content in the one forwarded email. The documents that have been included post-hearing (no folio) that purport to be original church and Israeli divorce documents are un-translated.
The one written in Greek looks as if it have been produced on any computer or using a photocopied blank form. The Israeli document is also untranslated and, while it has a sticker and stamps on its back allegedly from the Israeli Ministry of Foreign Affairs, I notice the rubber stamp and the signature in the bottom left corner of the original appears to be aligned differently to the same in what is purportedly a photocopy of the original (also no folio) which raises serious questions as to their veracity. As a consequence of all these concerns I am unable to lend these documents much weight.
Harm from husband
Because I do not accept that the applicant has been divorced from her husband it follows that their relationship is not as described by her and that he is not seeking to harm her. The latter claim relies on the oral testimony of the applicant, which I have found lacks credibility. I have taken into account the oral testimony of the applicant’s sister and the copies of what are claimed threats delivered via [social media] (folios [number]) but lend them little weight. The sister is not an objective witness and despite their closeness was unable to shed any light on what the outcome of the divorce settlement was, other than the applicant ‘didn’t get anything’. In addition, the alleged [social media] threats all occurred in the space of a week and what was presented were only photocopies. Despite the adviser promising to provide links to her [social media] page post-hearing, none were forthcoming. The applicant later said the account was deactivated but she would try to provide some screenshots, again none were forthcoming.
Despite claiming that the abuse and violence from her husband got worse after 1998, there was no attempt to report this to the police. I do not accept that this was because of her father’s attitude to marriage given it relies solely on her oral evidence. I also note that she and the children were allowed to travel to [Country 1] in 2013 without her husband and yet she never applied for protection while there. I do not accept that it didn’t occur to her, that all her husband’s family were in [Country 1] or that she thought her husband could come to [Country 1] and take the children away.
She was staying with her [Relative 1] who, although going through a divorce himself, could have helped her with the application process, and also in gaining state protection in case her husband’s family or husband tried to interfere with her or the children. Her [Relative 1] arranged and paid for their trip to [Country 1] so he was obviously caring of[her]. Her willingness to return to Israel is not indicative of someone who fears serious harm from her husband. And the next year her husband gave permission for her and the children to come to Australia, which is again not indicative of a controlling or violent husband.
Conversion to Islam
I do not accept that the applicant’s husband has converted to Islam and that he wants the children to return so he can convert them as well. This claim rests on the applicant’s oral evidence which I have found lacks credibility, as well as some alleged [social media] threats to which I have lent little weight.
She claimed that the applicant’s ‘strange’ Muslim friends began questioning why her husband allowed the applicant to go to church from around 1996. Yet the children were baptised and went to a [Christian] private school without the husband intervening to stop it. I don’t accept that this was because the school was excellent and that Salafists would allow their children to go there.
The idea that the applicant’s husband threatened her unless she brought the children back is at odds with his willingness to allow them to travel to [Country 1] and Australia without him being present, and appears at cross purposes with his aim. If he wished to convert them then he could have sought some form of custody of them during the divorce proceedings and then taken legal action to force the return of those under[a certain age]. It also makes little sense that he would make such threats publicly over [social media] rather than privately over the phone so there would be no evidence.
Other Issues
Post-hearing the adviser made a written claim that the applicant had been [mistreated] by her husband (no folio). This is a very serious claim and a new hearing on this was conducted. The Tribunal is alert to the sensitivities of the issue, however I am not satisfied that such abuse ever occurred. She had not previously mentioned it to the Tribunal, has never reported it to the Israeli or Australian police, and never approached any Israeli or Australian shelter/organisation to seek help in this regard.
Although she said she had been referred to a [medical practitioner] in Australia, she claimed this was for depression. She also stated that she had mentioned this issue in general to [an international humanitarian organisation] however there is no evidence to support this claim. The Tribunal notes the seriousness and sensitivity of such an issue, however given the lack of supporting evidence, her overall lack of credibility as a witness and the lateness of such a claim I am not satisfied that such abuse ever occurred.
In addition, because I do not accept that the applicant is divorced or that her husband has converted to Islam I also do not accept that her children had been threatened by her husband or would be harmed by him or his friends, they would be taken from her and made to convert to Islam, that she had received numerous threats via telephone and [social media] or that she would be harassed and abused by her husband and his Muslim friends.
Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is divorced from her husband or was [abused] by him, that her husband has converted to Islam or that he has threatened the children or the applicant, or that she would be harassed and abused by her husband or his Muslim friends on return to Israel 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 applicants being removed from Australia to Israel, there is a real risk that the applicants 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 any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2018] AATA 218

8 January 2018

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