1600957 (Refugee)

1600957 (Refugee) [2017] AATA 2736 (25 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600957
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:25 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 September 2017 at 7:28pm

CATCHWORDS
Refugee – Protection visa – Fiji – Domestic Violence – No genuine fear of harm – Credibility issues – Inconsistencies in protection visa application – Second applicant (child) – Member of the same family unit – Australian born – Fears societal discrimination
LEGISLATION
Migration Act 1958, ss 5AAA, 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 65, 441A(5), 426A, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
VSAB v MIMIA [2006] FCA 239
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 (a Fijian citizen mother, hereafter referred to as “the applicant” and her [child] born in Australia) applied for the visas [in] July 2015. The delegate refused to grant the visas on the basis that although there were concerns with the evidence presented, even in giving the applicant the benefit of the doubt and accepting her claims, the delegate was not satisfied that the applicant could not access effective protection from the police force and the judicial system in Fiji.
The Department
The Departmental file
The Departmental file contains documents including the “first” protection visa application forms (lodged [date] July 2015, subsequently found to be invalid) and the “second” protection visa application forms” (lodged [date] July 2015, accepted as valid, and considered by the delegate), a copy of identity page of the applicant’s passport, a recording of the interview with the applicant (to which the Tribunal has listened), identity and supporting documents, and the delegate’s decision record.
The Tribunal
The applicants lodged an application for review with the Tribunal, providing an email address and telephone number, agreeing to accept correspondence by email, and acknowledging that the applicant would inform the Tribunal of any change to her circumstances, understanding that if she changes her contact details and does not inform the Tribunal, then it may proceed to make a decision on the case. They provided a copy of the delegate’s decision record and comments disagreeing with some of the decision record, as well as some other documents.
The Tribunal also has before it Departmental files relating to the applicant’s previous offshore applications for visitor visas; which are not relevant in the circumstances in which the Tribunal has made this decision.
On 1 August 2016 the applicant informed the Tribunal in writing by email that her telephone number and email address had changed. The Tribunal contacted the applicant to seek confirmation that she wanted to change her email address for correspondence and left her a voicemail message (new phone number). She called back on 4 August 2016 and confirmed that she wanted the email address she had notified to be her new email address for correspondence.
On 7 September 2017 the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal requested that the applicants provide all documents, submissions and evidence upon which they seek to rely to the Tribunal one week prior to the hearing. No documents were received. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 22 September 2017. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.
The applicants did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants have been properly invited to a hearing in accordance with s.441A(5) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
CONSIDERATION OF CLAIMS AND EVIDNECE, FINDINGS AND REASONS
Country of reference
The applicant produced her passport issued on [date] 2014 by the Fijian authorities. She claims that her citizenship at birth was Fijian. She travelled to Australia on her Fijian passport.
The Department accepted that the applicant is a national of Fiji, and assessed her claims against Fiji. The Tribunal is prepared to accept that the applicant is a national of Fiji, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Fiji.
Concerning the applicant’s daughter, the Tribunal notes that she was born on [date] in [Australia]. The applicant provided the birth certificate of the child to the Department; she did not list the father’s details on the birth certificate; the applicant is listed as the mother. The Tribunal accepts that the applicant is the mother of the second named applicant and that they are members of a family unit. The delegate noted in the decision record the evidence of the applicant at interview that the father of the child is a [age] year old [whom] she met [in Fiji] and that he is in another relationship and does not know about the child. The Department accepted that the child is a Fijian national for the purposes of the consideration of the claims. In her response, the applicant suggested that it is “heartbreaking” that the delegate considered the child to be a Fijian national; the child will not be recognised as a Fijian national even though the applicant herself is a Fijian national; the child will be considered as an “overseas”. The applicant did not provide any further information to support her claims in this regard, nor did she suggest that the father of the child is not Fijian. According to the DFAT Report: Fiji Citizenship is governed by the Citizenship of Fiji Decree 2009. This was promulgated in July 2009 and deemed to have come into force on 10th April 2009. Fiji citizenship can be acquired by birth, registration and naturalization. The registration of births, deaths and marriages in Fiji is regulated by the Births Deaths and Marriages Registration Act [Cap 49] and the Marriage Act [Cap 50]. The Births Deaths and Marriages registrar (BDM) is responsible for all dealings pertaining to the registration of births, deaths and marriages. There are no timeframe requirements to register the birth and it can be registered verbally. Birth certificates can be amended easily with fathers regularly added at later dates. A child of an unmarried parent is normally registered under the care of the mother. The birth registration system is irregular in its application: for example, children are often not registered until school age when a birth certificate is required to enrol the child for school.[1] The Tribunal notes that the Fijian government website states that a child can be registered as a citizen if a child is born overseas on or after 10 April 2009 if at the date of the child’s birth either of the child's parents was a citizen (section 8(1) of the Citizenship of Fiji Decree 2009) [2].
[1] Paragraphs 5.42, 5.44-5.50 DFAT Report.
[2] accessed 22 September 2017
Nationality is not identical to citizenship, although there is some overlap between the terms. The Federal Court has described the concept of ‘nationality’ as it relates to protection visas as:
… a term somewhat lacking in precision. It is generally used to signify the legal connection between an individual and a State. The primary relevance of nationality under international law is to provide a basis upon which a State can exercise jurisdiction over persons. However, the term is employed in different ways in international law, and domestic law.[3]
[3] VSAB v MIMIA [2006] FCA 239 (Weinberg J, 17 March 2006), at [48, 50-53].
In the circumstances, the Tribunal finds, on the evidence before it, that the child is entitled to be recognised as a citizen of descent upon registration, and thus that she is a national of Fiji, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicants face a well-founded fear of persecution and/or a real risk of significant harm if they returns to Fiji.
The applicants provided written claims to the Department. The delegate had listed a significant number of inconsistencies between the first protection visa application form and the second protection visa application form lodged by the applicant. While expressing some doubt, the delegate had accepted some claims. The applicants had subsequently been advised by the Tribunal on 7 September 2017 that it had insufficient information before it to make a favourable decision on their behalf. Yet, they did not provide anything further to the Tribunal nor did they attend the hearing where they might have had the opportunity to provide necessary details of their claims. In these circumstances, a number of relevant questions about their claims remain unanswered, including as set out below.
The Tribunal had concerns about the applicant’s changing claims in a number of respects, between the first protection visa application form lodged [date] July 2015 and the second protection visa application form lodged [date] July 2015, as well as her evidence at interview on [date] October 2015[4] , as well as with her supporting documentation. Concerns are set out below.
[4] Set out in the delegate’s decision record provided to the Tribunal where relevant
In the first form, the applicant claimed to live with her sister and her sister’s family; whereas in the second form, she claimed she had been in a three year de facto relationship with [Mr A]. This reference to a three year de facto relationship was inconsistent with another part of the second form, in which she claimed she had been in a de facto relationship since February 2010 (almost 5 years before she came to Australia). The different lengths ascribed to the relationship were also inconsistent with a supporting 2017 email provided by [Ms B], who claimed that the applicant had been in a seven-year relationship with [Mr A]. The applicant has not explained the inconsistencies in the length of the claimed relationship.
Further, the applicant claimed in her first form that she was safe when living with her sister; this however was inconsistent with her second application and interview when she advised that when her sister’s husband was away, [Mr A] would stay at her sister’s house against her will. The applicant has not explained this inconsistency. Further, at interview, while her evidence indicated that she was not safe within the home (as noted by the delegate in the decision record), the letter in support from her sister claimed that the applicant would come home with signs of abuse, but the sister did not make any claim that this abuse had happened within her home. The applicant has not provided to the Tribunal any clarification of this issue raised in the delegate’s decision record.
In the first form the applicant said that she came to Australia to attend a camp and visit with her family, and she noted that she is pregnant (to her partner). She has no financial support from the father of her child [and] she is unemployed; she wants a better life for her and her baby. However, in the second form, she said that she came to Australia because she was scared as she was pregnant by another man, not her partner of three years. Further, if she returns, she would be in fear for her life and the life of her [child] because her partner is a “very violent man”. The applicant has not explained how she was aware that her de facto was not the father of her child. Further, her claims were different as to who was the father of the child. The applicant told the delegate that her parents were unaware that [Mr A] was not the father of her child, and they helped her write the first application, and this is the reason why it was inaccurate. The Tribunal has considered this explanation but does not find it persuasive, given her claim that her de facto was violent even before she discovered that he is not the father of the child, and given the claim in the letter from her father indicating that he was aware that her boyfriend was violent and this was the reason why they decided that she should seek protection. Thus, even if her parents had not been aware that the father of the child was someone else, if the de facto’s violence was the reason for seeking protection, as claimed by the applicant’s father in his letter, then this is inconsistent with the first form (which she claimed was inaccurate because of her parent’s’ assistance) which does not indicate that the reason for seeking protection is the de facto’s violence, rather it is for financial reasons and wanting a better life in Australia. The applicant has not explained why, when her family was helping her to write her first protection visa application, she did not refer to his violence generally (which she claimed existed independently of whether or not he was aware of the paternity of the child).
The Tribunal was concerned that the applicant’s claim in the second form, when asked in the second form if she had been harmed in Fiji, was that she had been brutally abused a “couple of times” by her partner. This “occasional” abuse is inconsistent with the letter from her sister which stated that there was a “never ending cycle and her life was in constant danger”, as well as the contents of an email provided to the Tribunal from a woman called [Ms B], stating that the applicant suffered at her de facto’s hands over seven [years]. The Tribunal is concerned with the inconsistent evidence about the claimed abuse.
At interview the applicant claimed that her de facto caused her [injuries] after he [assaulted her] during their three [year]. However, as noted by the delegate in decision record, she produced photographs which she claimed are of her in [hospital]. She also produced a medical report from the Ministry of Health on letterhead and dated [October] 2015. This states that the applicant was admitted to hospital [in] March 2014 and was clinically assessed as [details of medical condition]. The delegate noted that there was no mention of trauma induced injuries or explanations such as bruising or swelling in the report which might reasonably be expected in a situation of abuse particularly given the applicant’s claims of [domestic violence]. [Sentence deleted]. While the delegate was prepared to accept that the applicant had attended hospital, the delegate was not prepared to accept that this was for [domestic] abuse related reasons. The applicant has not provided any explanation for the concerns raised in the delegate’s decision record.
In the first form [when asked whether she can obtain state protection], she said the police can protect her but they cannot provide for her and her baby’s everyday needs. Her concern in the first form thus appeared to be with the financial needs for herself and her baby. This however changed by the time of the second form, which she claimed, inconsistently, that police cannot protect her. The applicant has not explained why she changed her claim from the police being able to protect her, to the police not being able to protect her.
In her second form, she claimed that the police are not interested in domestic violence unless someone gets killed. This however was inconsistent with her evidence at the interview that she did receive assistance from the police on two occasions, and that on one occasion she chose not to press charges against her de facto because she loved him.
Further, the Tribunal had concerns that the applicant claimed that her de facto had a former girlfriend, who she claimed was [Ms B], who then wrote to the Tribunal to support the applicant’s claims of violence. In her email, [Ms B] claimed that they had both had a relationship with the same man for seven years, and although she and the applicant knew each other, and both were constantly beaten up by him and bruised, both were unaware that the other was having a relationship with the same man (for a seven year period). The Tribunal considers this difficult to accept on the evidence before it (especially given the inconsistencies relating to the length of the relationship). Further, [Ms B] claimed that she had moved away from this man, and started a new relationship; she did not suggest that he bothered her when she left him.

While the Tribunal has considered the DFAT Report, and accepts that there are problems with domestic violence in Fiji, this does not mean that this applicant’s claims are true, nor that in their particular circumstances, they face a real chance of serious harm or a real risk of significant harm.
The applicant produced a letter from [a family member] dated [October] 2015 which states that he is a Former [official]. He claims that the applicant is in grave danger if she returns to boyfriend is dangerous and has been in prison a number of times and he also imprisoned the applicant for three days and nights and she was only released when they called the police. The Tribunal considers that if this was the case, the first form would not have been focusing on how she will survive with a baby in Fiji. Further, it is noted that the [family member]’s address [as] set out in the letter is the same as the applicant’s address in her second form (where she indicates she has been living all of her life). The applicant has not explained whether she was living with [her family member] at the time she claimed to be in a de facto relationship, and living with her sister.
Further, the Tribunal notes that the applicant produced a letter dated [October] 2015 which was stated to be from the police station. It was addressed To Whom It May Concern and said that it was to certify that the applicant had reported being assaulted by her ex-boyfriend [Mr A] on [date] April 2013; he was counselled but he was not charged; the victim remains in Australia and fears for her safety upon return.
The Tribunal is aware that there is document fraud in Fiji; as set out in the DFAT Report, counterfeit documents or fraudulently obtained documents are commonly and cheaply available. The Tribunal also notes that people can write letters (including emails) of support for many reasons, for example, because they may believe that the applicant would be better placed, now that she has a baby, in Australia, because her parents live here; it does not mean that the letters are true. The Tribunal is not prepared to place any weight on the letters, documents, photograph, as support for her claims. While the Tribunal notes that some of the letters suggest that the Tribunal could call the author or be provided with further evidence, the Tribunal is not satisfied that this would be of assistance given the lack of further details from the applicant herself who was invited to a hearing but did not attend.
In the absence of further details and evidence from the applicant, the Tribunal is not satisfied that the claims made by the applicant are credible. The Tribunal is not prepared to accept that the applicant’s background is as claimed, that she had an abusive de facto relationship, that she faced harm or feared harm which was the reason why she came to Australia. The Tribunal does not accept that she faced or feared harm from anyone.
The Tribunal does not accept that the applicant left Fiji to avoid harm to herself or her unborn child. The Tribunal doesn’t accept that she had any genuine fear of harm when she left Fiji to travel to Australia. It is not satisfied on the evidence before it that in their particular circumstances, either applicant faces a real chance of serious harm or real risk of significant harm if they return to Fiji. On the evidence before it, the Tribunal does not accept that they face threats or harm or mistreatment or discrimination or lack of human rights or oppression from anyone (society, authorities, employers, men) now or at all. It finds that they will return home to live with the applicant’s relatives and will receive support from the relatives as the applicant has previously. The Tribunal does not accept that she will not be able to find employment or assistance in caring for her child, nor does it accept that they face a real chance of serious harm or a real risk of significant harm from the applicant’s former boyfriend.
In her second protection visa application form, the applicant noted that most ranks in Parliament are taken by military, even the Prime Minister himself is a military officer. This did not appear to be a claim or relevant to any fear of harm.
Insofar as the applicant has claimed that her [child] will be considered in Fiji as “overseas”, the Tribunal has considered this in the context of her nationality. The Tribunal considers that the applicant has not claimed that this reference was made in the context of potential discrimination, but even if it was, there is no credible evidence before it that a child having been born overseas faces a real chance or real risk of discrimination amounting to serious harm or significant harm.
The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicants face a real chance of serious harm or a real risk of significant harm in Fiji, nor that they face a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicants’ claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are credible, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution for any of the reasons put forward by them.
The Tribunal does not accept that there is any credible evidence to support that the applicants face a real chance of persecution in Fiji. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criteria
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). As discussed above there remain many questions unanswered in relation to the applicant's claims. Insufficient and inconsistent detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied on the evidence before it that they face a real risk of significant harm in Fiji for any reason, including discrimination or harm from society, the child’s father, financial reasons or harm from anyone else. It is not satisfied that they face a real risk of requiring access to state protection.
Accordingly, on the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this case Fiji, there is a real risk that they will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

ANNEXURE A - 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 (DFAT Country report on Fiji, 14 April 2015), to the extent that they are relevant to the decision under consideration.
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 2736

25 September 2017

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