1602808 (Refugee)

1602808 (Refugee) [2018] AATA 5047 (26 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602808
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Tania Flood
DATE:26 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2018 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Jamaat-E-Islami supporter – anti-corruption advocate – opposition to the independence of Bangladesh – harm from ex-husband of ex-girlfriend – fear of disappearance or killing – legal proceedings – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 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 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 Bangladesh, applied for the visa on 30 July 2015. The delegate refused to grant the visa on 11 February 2016.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will face serious harm on return to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
In his application for a Protection visa the applicant claimed the following:
He left Bangladesh to study in Australia and because he had some problems with the ex-husband of his then girlfriend. He was abused a lot due to jealousy.
He fears persecution from the Government of Bangladesh and Awami League supporters and Bengali citizens in general.
He fears harm because of his newly developed view about the government’s position on Jamaat-E-Islami, the persecution and hanging of its leaders, the independence of Bangladesh and my refusal to accept the sovereignty of that country.
He strongly supports the religious political party Jamaat-E-Islami. He believes Jamaat-E-Islami was correct to oppose independence of Bangladesh. It is also his opinion that the war crimes trial against leaders of Jamaat-E-Islami is a show trial and just an attempt to eliminate political opponents.
He is very strong about his opinions and he often expresses his feelings verbally to others. Such behaviour is very risky in Bangladesh. Even if he isn’t harmed by the government (because he is not a prominent political figure) the general supporters of the Awami League would be extremely hostile to his views. In the event of harm from such people he does not have confidence that the government would protect him from harm. Relocation is not viable because the situation is country wide.
The above problem did not exist before he left Bangladesh.
At the Tribunal hearing the applicant provided a written statement in which he claims his failed love affair with his girlfriend in Bangladesh led to depression and affected his ability to study in Australia and his request for a visa extension. Attached to the submission is a document setting out details of a trail of messages between him and his ex-girlfriend in Bangladesh as well as two news articles about recent student protests in Bangladesh and the arrest of photographer Shahidul Alam.
In a submission dated 12 October 2018 the applicant provided a USB containing various video footage of recent student protests in Bangladesh as well as footage of a motion passed in the Australian Senate in respect of the recent violence and footage of an interview with a photographer, Shahidul Alam, who was arrested in connection with the student protests.
FINDINGS AND REASONS
Country of reference
At the Tribunal hearing the applicant produced his People’s Republic of Bangladesh passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Bangladesh and has assessed his claims against Bangladesh.
Feared harm from ex-girlfriends ex-husband
The Delegates decision sets out the applicant’s migration history. At the Tribunal hearing he provided a similar account of his migration history, namely that he first arrived in Australia in 2008 as the holder of a Student visa. An attempt to extend his Student visa was refused and he sought a review of that decision by the Migration Review Tribunal which was unsuccessful followed by judicial review and an appeal to the Minister. In July 2015 he applied for a Protection visa.
At the Tribunal hearing the applicant claimed he fears harm from his ex-girlfriends ex-husband on return to Bangladesh. He said that he met his ex-girlfriend when they were studying for the IELTS exam in Bangladesh. He said he was not aware that she was married at first and by the time he found out he was in love with her. He said that she was forced into the marriage with her ex-husband and that is why nobody knew about it. He said that it was their intention to both come to Australia, however, she did not get the visa because her ex-husband found out what they were planning and interfered with the process. He said the ex-husband went to his house and to the Australian High Commission. He said that the relationship fell apart after he came to Australia and he understands that she is now living in [Country 1]. He said that her ex-husband blames him for the loss of his wife and he will harm him on return to Bangladesh for this reason. He said that her ex-husband was [an occupation] in 2008/2009 and is influential. He said her ex-husband made a case against her in which he is named.
The Tribunal asked the applicant how his ex-girlfriend’s then husband discovered their relationship. He said that he expressed his feelings for her to other students at the college and they must have told her ex-husband about them. Later in the hearing he said that his father has an ongoing conflict with his brothers over land use and his uncle’s wife also spread rumours about his involvement with his ex-girlfriend. He said that when the ex-husband found out he started approaching him and threatening him. He also called him once when he was in Bangladesh after he realised his wife had left him. He said that the relationship also became known to his parents and they were upset with him and said he couldn’t continue with her.
When asked for further particulars about the case against his ex-girlfriend he said he can’t exactly remember what it is about but he thinks her ex-husband is probably claiming she took his money. He said he heard he was involved in that case. When asked if the authorities have sought to find him for this reason he said that he thinks the police might have been to his home to ask about his whereabouts. When asked if he has any proof of the pending case he said he asked his father to go to the court but they couldn’t give him anything. When asked if the ex-husband had harmed him in any way while he was in Bangladesh he said he did not get the chance. Contrary to his earlier evidence he then said that her ex-husband only found out about him after he arrived in Australia.
The Tribunal asked the applicant why the ex-husband would continue to have any interest in him seeing as how his relationship with his ex-wife is long over and she is now living in [Country 1]. The applicant reiterated that the ex-husband blames him for the demise of his marriage and has told him that even if he comes back after ten years he will find him. He said that he might also get information about him from his uncle’s wife.
The Tribunal asked the applicant why he cannot relocate to another part of Bangladesh to avoid any harm from the ex-husband. He said that he cannot live his whole life in hiding and will always worry that he will find him. He said that the ex-husband will somehow get to know, through other people, that he has returned and he will find him and kill him. Furthermore, he said he is depressed and he cannot take any more stress and worry. He said he could not live away from his relatives in the circumstances. When asked why he could not report any threatening behaviour to the police he said that the police are the most corrupt element in society and will not help him.
The Tribunal asked the applicant whether he was afraid for his life at the time he left Bangladesh and agreed he was. He repeated that the ex-husband called him three to four days before he departed Bangladesh but by then he already had his air ticket and visa.
The Tribunal put it to the applicant that he said he feared harm when he left Bangladesh yet only applied for a Protection visa in 2015 some seven years after his arrival in Australia after he had exhausted all other avenues to obtain a visa. The Tribunal suggested that his behaviour appears to undermine his claim to have feared harm from the ex-husband before departing Bangladesh. The applicant replied that he applied for the Protection visa when he realised he had no other option for remaining in Australia.
Despite some inconsistencies in the applicant’s evidence as to when the ex-husband came to learn about their relationship the Tribunal is prepared to accept he had a relationship with a married woman in Bangladesh which came to light before his departure from Bangladesh. The Tribunal finds it plausible that there might have been some unpleasant exchanges between the applicant and the ex-husband over this before he departed Bangladesh. However, for the reasons outlined below, the Tribunal does not accept the applicant genuinely fears harm in Bangladesh for this reason now or in the reasonably foreseeable future or that there is a real chance he will be harmed for this reason if he returns.
The Tribunal has considered the applicant’s claims in respect of the pending court case against his ex-girlfriend but is not persuaded the applicant has anything to fear in this respect. When discussing the case he said he “heard” he was involved in the case and he “thinks” the police might have visited his parents about it. Further, he claimed not to remember the particulars of the case. The Tribunal found the applicant’s oral evidence in this respect to be somewhat speculative, vague and lacking in any convincing detail. While the Tribunal notes he claims his father unsuccessfully approached the court for a copy of case documentation, at the time of this decision there is nothing before the Tribunal to substantiate the vague claims made in this respect. In the circumstances, the Tribunal is not prepared to accept that the applicant is named or otherwise involved in a pending case brought by the ex-husband against the applicant’s ex-girlfriend. In forming this view the Tribunal has also had regard to the long delay between the applicant’s arrival in Australia and his application for a Protection visa. Indeed the Tribunal considers the long delay in applying for a Protection visa calls into question the severity of the claimed situation in general.
Based on his oral evidence, the applicant is no longer involved in a relationship with his ex-wife and has not been for about seven years. In the meantime, his ex-girlfriend has departed Bangladesh and is reportedly living in [Country 1]. As noted the Tribunal is not satisfied that the ex-husband has involved the applicant in any case he may have lodged against his wife. Nor is there any compelling evidence before the Tribunal to support that the ex-husband is continually keeping abreast of the applicant’s whereabouts with a view to harming him. If the applicant genuinely feared serious harm at the hands of the ex-husband and if he had been informed by his family about any ongoing threatening behaviour by the ex-husband, the Tribunal considers he would have sought protection in Australia long before he did. The fact that he did not apply for a Protection visa until he had exhausted all other avenues to remain in Australia persuades the Tribunal that the ex-husband has not demonstrated any adverse interest in him since around the time of his departure from Bangladesh. Having carefully considered all the available evidence, and given the particular circumstances, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm at the hands of the ex-husband if he returns to his home in Bangladesh.
Jamaat-E-Islami supporter and anti-corruption advocate
At the Tribunal hearing the applicant testified that he supports Jamaat-E-Islami because it is the only political party based on Islamic principles. He said that he wasn’t much of a Jamaat-E-Islami supporter while living in Bangladesh but he did attend a Jamaat-E-Islami affiliated school. He said that various political parties have ruled Bangladesh over the years but all have succumbed to corruption. He said he believes that Jamaat-E-Islami is the only party which can overcome corruption.
The applicant testified that the difficulties he faced when his relationship broke down caused him to turn to his religion. He said that while he had a religious consciousness in Bangladesh his life was different then. He said that now he is focusing much more on his spirituality and on developing good personal qualities. He said he regularly prays five times a day at [a named] mosque. Referring to his dress style, the applicant testified that his outward appearance has also changed to reflect his increased religiosity since coming to Australia.
The applicant stated that he is not and never was a member of Jamaat-E-Islami. When asked if he is in contact with Jamaat-E-Islami supporters here in Australia he said his mental state has not allowed much contact with others. He said he is concentrating on himself. He said while he sometimes sees other supporters he is not fully focused on that activity. He confirmed he has had no political involvement in Australia.
Referring to his written claims the Tribunal asked the applicant what sort of opinions he has been expressing in Australia. He said that he speaks about how opposition party supporters are being killed by the government in Bangladesh and he is vocal about the problem of corruption. He said that the ruling party is trying to ruin the name of Islam and people are jailed in Bangladesh for no reason. He referred to recent violence during student protests and to nineteen people being recently executed by the government.
When asked with whom he shares these views he said it is with Bengali people in [his suburb]. He said some are his friends and others are just people he meets from time to time. He confirmed he has experienced no problems here because of this although he is aware that there are Awami League supporters in [his city] and they might say things about individuals here to people back in Bangladesh.
The Tribunal asked the applicant why he thinks he will be at risk of harm in Bangladesh because of his political views, noting that he is not a member of Jamaat-E-Islami or involved in any overt political activity. The applicant responded that his character does not allow him to accept corruption. He said that if he sees something he believes is wrong he stands up for the truth. He said he cannot let wrongdoings go unnoticed because that is what Islam teaches. He said that if he returns to Bangladesh he will speak up about the high level of corruption in the government and he will be targeted because of that. He said that many bloggers have been killed in Bangladesh and he might face the same situation. He said that there is absolutely no freedom of expression in Bangladesh and if he goes back and opens his mouth he will be arrested or made to disappear.
When asked if he is a blogger he said he is not. When asked if he expresses his views in any other public manner he said that he might eventually put something in a blog and he has thought about putting a voice recording online. The Tribunal questioned why he is saying this when he hasn’t done anything of the kind until now. He said that his current psychological condition doesn’t allow him to engage in that sort of activity. He said he is too worried about his future but if things change and he has an opportunity to do it he will. He reiterated that his priority at the moment is getting his life settled enough to marry. Afterwards he said he will have the capacity for that sort of activity.

Having considered the applicant’s oral evidence the Tribunal finds the applicant was not and is not a member of Jamaat-e-Islami. However, based on his oral evidence the Tribunal is prepared to accept he is a supporter of Jamaat-E-Islami.
Based on the applicant’s oral evidence he is not involved in any Jamaat-E-Islami or anti-government political activity in Australia due in part to his mental health status. The Tribunal has had regard to medical reports produced by the applicant including Medical Certificates written by [Doctor A] of [a named medical service] on [dates in] July 2018 and [October] 2018; a [test] report dated [in] September 2018; a GP Mental Health Patient Assessment and Treatment Plan in which [Doctor A] is the listed GP and a short report by [a specialist service].
The Medical Certificate dated [in] October 2018 states that the applicant has depression and amnesia from stress and lack of sleep for which he has commenced medications and been referred to a psychiatrist and psychologist. The certificate notes that [a specified treatment] has been applied with ongoing review. The Medical Certificate dated [in] July 2018 again refers to the applicant having had depression since 2008 mainly from visa and social issues overseas. The certificate notes that he was admitted to [Hospital 1’s] mental section and was prescribed [medication] and referred to a psychologist. The short report by [the specialist service] states that the applicant has recently attended a consultation with a psychologist [in] September 2018 and has another consultation booked in for [a date in] October 2018.
At the hearing the applicant stated that he visited [Hospital 1’s] mental health team a few years ago when his relationship broke down. He said he was stressed; that drugs were involved and he thought he might die. He said he wasn’t admitted overnight. He said that lately he had seen a psychologist and would be seeing her again. Noting that the medical certificate dated [in] July 2018 states that he has been depressed for years the Tribunal enquired why he has only commenced sessions with a psychologist now. He said he has been unwell and forgets things.
The Tribunal accepts that the applicant may be suffering from depression and stress but considers this is more likely due to his uncertain visa status and the breakdown of his romantic relationship. In forming this view the Tribunal notes it’s earlier finding that the applicant’s behaviour in Australia does not support that he genuinely fears harm in Bangladesh from his ex-girlfriends ex-husband. The Tribunal is not persuaded however that the applicant’s depression and stress is so severe that it has stopped him from acting upon his political opinions to date. As can be seen the medical evidence supports that he has been experiencing some form of depression since 2008 and yet he has only very recently attended a consultation with a psychologist. Despite the applicant’s reported medical condition, on his oral evidence he regularly attends the mosque; maintains some communication and interaction with friends and members of his local community; takes an interest in Bangladeshi affairs as evidenced by his submissions to the Tribunal and has in the past held down jobs in the [specified] industry in Australia. In the Tribunal’s view these actions demonstrate a degree of psychological resiliency and do not persuade the Tribunal that his psychological condition is the reason he has not yet expressed his views more fervently or publicly.
The Tribunal accepts the applicant might have personal opinions about corruption and the ruling party’s tactics. The Tribunal acknowledges country information, including the reports provided by the applicant that indicates the ruling party is intolerant of critical media and civil society voices and that restrictive laws such as the Information and Communication Technology Act are used to detain and charge individuals for online speech. The Tribunal also acknowledges that attacks are reported against reporters and bloggers who voice their opposition to the government.[1]
[1] Freedom House, Freedom in the World 2018, Bangladesh
Notwithstanding the above, the Tribunal is not persuaded that the applicant will express his political opinions in a manner that is likely to bring him to the adverse attention of the authorities; AL members and supporters or Bengali citizens generally on return to Bangladesh. The Tribunal considers that at best he might discuss his views with friends and close contacts as he claims to do in Australia. The Tribunal is satisfied, on the available evidence, that he will not express his views more publicly than this such as in a blog or online posts.
There is nothing in the information before the Tribunal, including the applicant’s oral evidence, to support that he will become a member of, or active supporter of Jamaat-E-Islami on return to Bangladesh. During the hearing the Tribunal discussed relevant country information with the applicant including the following:
According to DFAT’s Country Information report[2] government practices under the AL have severely restricted Jamaat-E-Islami’s ability to conduct activities on a day-to-day basis. In August 2013 the High Court deregistered Jamaat-E-Islami as a political party and five leaders have been executed after being convicted of war crimes by the International Crimes Tribunal. DFAT reports that authorities have particularly targeted for arrest the senior leadership, few of whom remain free and active. Other targets include prominent leaders and in some cases family members. Lower level members have reportedly been able to avoid the attention of the authorities either through the paying of bribes or by physically relocating. DFAT assesses that senior Jamaat-E-Islami leaders face a high risk of arrest and legal sanction. Active Jamaat-E-Islami members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary members who do not engage in political activities and demonstrations face a low risk of arrest although this may vary according to location.
[2] DFAT Country Information Report, Bangladesh, 2 February 2018
A country information request (CIR: CI1611130110919945) prepared on 3 February 2017 states that Post understands that Bangladeshi authorities and AL activists mostly "pursue and harm" prominent Jamaat-E-Islami leaders, Islamic Chhatra Shibir members and, in some cases, family members. For example, Bangladeshi authorities reportedly detained Mir Ahmad Bin Quasem (son of executed International Crimes Tribunal/ICT suspect, Mir Quasem Ali) and Amaan Azmi (son of JI leader Golam Azam) on 9 August 2016 and 22 August 2016 respectively. These individuals are yet to appear before a court. Post is aware of media reports that eight other JI activists or Shibir members disappeared between January and October 2016. The report also states that Post understands that Bangladeshi authorities and AL activists mostly "pursue more broadly throughout the country" prominent JI members/activists such as Mir Quasem Ali. Lower level members/activists are less visible and therefore more able to escape attention by relocating.
Sources also indicate the fact that in recent years there have been fewer political clashes reported between rival political groups. Most of the recent reported political violence in Bangladesh has been intra-party and particularly within the ranks of the AL. [3]
[3] ‘Political Violence: January-November 2017’, Ain O Salish Kendra, 17 December 2017; DFAT Country Information Report, Bangladesh, 2 February 2018
The Tribunal put it to the applicant at hearing that he does not claim to have had a political profile in Bangladesh before he departed the country and on his evidence he has not developed a political profile in Australia which is likely to bring him to the adverse attention of the authorities or AL supporters on return. The applicant responded that he has a certain character and a plan to be active and to stand up against corruption. He reiterated that he will encounter trouble because of this.
The Tribunal has considered the applicant’s responses but is not persuaded he will assume a level of political activity on return to Bangladesh that will bring him to the adverse attention of the authorities and/or AL members and supporters and/or Bengali citizens generally. He has demonstrated no involvement in any political activity in either Bangladesh or Australia to date and as outlined above the Tribunal is not satisfied that this is on account of his psychological status. The Tribunal does not believe he will behave any differently if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal finds, on the basis of the above country information that there is not a real chance the applicant will suffer serious harm on account of being a low level, inactive Jamaat-E-Islami supporter in Bangladesh.
The Tribunal acknowledges the claim made at hearing that AL members living in [Australia] might be reporting back to either the party or the authorities on the activities of opposition supporters in Australia. There is no evidence before the Tribunal to support this claim and in any event, the applicant claims no political activity in Australia which is likely to be of interest to the AL or the authorities in Bangladesh.
Having carefully considered all the available evidence the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to Bangladesh for reason of his political opinions, including his opinions about corruption and the tactics of the ruling party, and/or for his support of Jamaat-E-Islami.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk he will suffer significant harm for the reasons claimed. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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 5047

26 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction