1605049 (Refugee)

1605049 (Refugee) [2017] AATA 1498 (25 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605049
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Rodger Shanahan
DATE:25 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 August 2017 at 12:24pm

CATCHWORDS
Refugee – Protection visa – Jordan – Particular social group – Male victims of honour crimes – Physical assault – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 5H , 5J , 5K-LA, 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 [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Jordan, applied for the visa [in] June 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
On [a date in] October 2014 he was in his house when the phone rang and he was told to come downstairs by an unknown person. Outside in a car was the brother of [Ms A] and his friend. He declined to get in their car. He told them he would meet them in a small vacant block 200 metres away. When they got there. The other person grabbed the applicant while the brother tried to stab him. The applicant’s friend was at the same place and tried to intervene but was stabbed.
Another of the applicant’s friends (and a mutual friend of [Ms A’s] brother) was driving past, saw the commotion and drove the applicant to a park. The brother told the applicant he would let him go only because of this mutual friend. The same day the brother returned home and told his family who returned with [specified family members].
The applicant’s father told the applicant to come outside where [her relative] threatened to kill him. At this stage the applicant went to live with his [Relative A] for some time. Two weeks later he was told that the girl’s family were going to kill him. His father had since then been receiving direct threats against the applicant and his father.
AAT Hearing
The applicant stated that his father was not present at the hearing today as he left to return to Jordan. Yesterday his father had received a call from his mother who was sick and asked for her son to return. His family in Jordan brokered an agreement with the agents of persecution to allow his father to return to Jordan to see his sick mother without harm. He said that if his father could return to Australia he would. Asked if his father sought permission from DIBP to leave given the circumstances or just left, he claimed that he was in a rush and left.
He claimed that he had a relationship in Jordan with a girl called [Ms A] and her [family members] wanted to kill him because their honour was insulted. He had no other claims. He said it was an honour issue in his country for a man to speak or to have a relationship with a girl. His relationship over involved talking over the phone and meeting in person three or four phone times. There was no sexual relationship; it happened possibly three or four years ago.
It was put to him that given the seriousness of the issue and the warning of the hearing that he had, he should be able to recall the period in question with some more precision than he currently was. He claimed she lived in the same street as him and he asked for her phone number, spoke to her and later her [family members] found put, wanted to kill him and he fled the country and came to Australia.
Asked for some more details, he claimed that he saw her, he liked her and saw her a few times and this was what happened. He went to her school, met her and asked for her phone number. He couldn’t remember exactly but it was perhaps four years ago. He thought it was 2014 but couldn’t remember what month it was. The Tribunal asked why he couldn’t remember the month that he met the girl over whom he claimed he was going to be killed and repeated that he couldn’t remember.
He met her in person because he missed her and wanted her and met her once in the street and once at school. Out of the times he met her, it was at her school once or twice. He met her three or four times and the relationship only lasted five or six months. He would talk and meet her. Her family found out and wanted to kill him. If her brother found he returned to Jordan he would definitely kill him.
The [family members] found out he called her because she had two phone numbers; her own and her [Relative B’s]. One day by mistake he sent her a text to her [Relative B’s] number and her brother (who was holding the phone at the time) saw the text. He was asked what he meant by the fact that she had her [Relative B’s] number given she should have her own (or perhaps two numbers). He meant that he had two numbers (her and her [Relative B’s]). Asked why he had her [Relative B’s], he claimed that she called the applicant from her [Relative B’s] phone if she ran out of credit. Asked why she did this given the risk, rather than get more credit or call from her friend’s phone. Her [Relative B] would notice a strange number having been called. He claimed he didn’t know why she did it.
Asked what her brother was doing with the [Relative B’s] phone at the very time he called it, he claimed he didn’t know. Since he had been in Australia he had not been in contact with her; he loved her but it wasn’t possible to talk with her after the incident. He didn’t contact her via social media. He missed her but thought because of the problems he shouldn’t try to contact her. He was asked if he could provide any evidence of contact between them, or that there was a person called [Ms A] (other than his oral claim). He claimed he didn’t have any evidence – no texts or photos.
He had photos in Jordan but after the problems he deleted them. Asked why he deleted them, he said he was scared that if the photos were found by her [family members] he would be in even more trouble. He was asked how much more trouble he could be in given that he claimed he was going to be killed, and he claimed he was worried friends may see the photos and then tell her [family] that they had photographic evidence. It was put to him that these weren’t very good friends if they were going to disclose this potential fatal information. He claimed that these friends lived in the street in which he lived and would talk with the [family members].
After her brother saw his text he got the number texting and used a function to find the applicant’s number and then his name. They then wanted to kill him. Her brother called the applicant from his friend’s phone, asked where he was and threatened to kill him. He became very scared and didn’t know what to do. He told his father about this. At this stage he didn’t know who had called him – the caller identified himself as [name] which was the name of the brother’s friend.
After he told his father, an hour later he saw the people coming holding a gun. His father saw them from upstairs with the gun and thought the applicant would be killed. Asked how he saw them coming, he claimed that he was at home on the third floor and was looking out the window because he thought from the call that they were coming. It was put to him that the call came an hour earlier so they could have left the house. He claimed they were scared and didn’t know what to do.
They parked their car on the opposite side of the street and he saw them through a tiny opening through the window. He saw the gun himself – it was a pistol. There were three of them. They stood in front of the building and a crowd gathered. They then left as they didn’t want to create a problem in front of everyone and decided to return later. They then called him by the phone once or twice threatening to kill him. They decided then that they had to leave Jordan.
He had a passport at this stage, and was asked why he didn’t leave Jordan straight away for a country where they didn’t need a visa. He said that he left the matter to his father who decided they should go to Australia; he was only [age]. It was put to him that he was an adult with a passport, his father worked for [Employer 1] and he could have gone to Egypt where he spoke the language or to Turkey to gain immediate safety. He reiterated that he left everything to his father to deal with.
They didn’t know anyone in Australia. Asked what reason he gave on his visa application for coming to Australia, he claimed that he knew nothing and it was his father who did everything. Asked if he signed his application in Jordan, he claimed that he just gave his fingerprint. He only came to Australia to flee Jordan.
Asked if anything happened to him after he was threatened once or twice by phone, he claimed they moved after the incident to a new house [number] minutes away from their old house. The pistol incident occurred around four years ago but he couldn’t be more specific (it was 2013 or 2014). It was put to him that it was a significant event and he had plenty of time to recall it, so it may be difficult to accept that the event occurred if he couldn’t be more specific. He repeated that it was too long ago.
After they came with the pistol to his house people gathered and asked questions about what was happening. They told them but then left to avoid an ongoing scene. They stayed in the house for five or six months after this, then moved and stayed in the new house for about three months before they came to Australia. Asked why they stayed in the house for five or six months if the people had come for them with a pistol, and he claimed that it took this time for his father to find the house. It was out of his hands.
He was contacted by the people who threatened to kill him. They used a different number both times they did it. Asked if he ever physically met her brother he claimed that he met her brother with one of their mutual friends at a house. The brother said to him that they wouldn’t do anything to him because the other person had interceded for him but he would be hurt later. Asked to clarify what he was saying, he claimed that two or three days after the pistol incident, he and her brother had a mutual friend who tried to broker a rapprochement. The brother said that he would let him go this once but would come after him next time. This was the only time he met her brother.
The applicant continued to go to school during this time – it was [number range] minutes’ drive but he was scared throughout the journey. Asked if he thought it strange that nothing happened in the five or six months he was at home and going to school, even though they had threatened to kill him. He claimed they wouldn’t give him a time he would be killed, but it would happen months or years later. Asked why they didn’t harm someone else from his family, he claimed it was because he was the problem.
He didn’t know what happened to [Ms A] and was asked why he didn’t given he loved her and they had a mutual friend. He claimed a girl sent him a text telling him not to talk to [Ms A] – it was sent via [a messaging service] but didn’t have a copy of it because it was too long ago and had been deleted.
It was put to him that there wasn’t country information that indicated ‘honour crimes’ resulted in the male being killed. He claimed in Jordan it applied to everyone – asked if he had any country information to support this, he claimed that this was how it was with these types of people. Asked why his father went back given these people never forgot, and why he couldn’t just return like his father he claimed that his father asked his family to speak to the people and his father had to return because of his sick [mother]. The applicant was scared for his father’s safety.
Asked if any of these incidents had been reported to the police, he claimed that he hadn’t personally but wasn’t sure that his father had. Nobody had been killed and the people with the pistol would have left so there would be no evidence. It was put to him that there were a lot of witnesses given he claimed a large crowd gathered and either he or anyone from the crowd could have reported this to the police. He claimed the people would be scared if they reported it to the police as they could be killed also. He was working in [a specified industry] in Australia, a job he got through a friend.
Asked if he had ever mentioned the issue with the pistol previously, he claimed that he thought he had. It was put to him that there was no indication that he had and was asked if he had put this in his statement or mentioned it during his DIBP interview and he claimed that he may have mentioned this to the lawyer and perhaps he may not have written it down, so it would be the lawyer’s fault. It was put to him that the Tribunal would require a statutory declaration from his lawyer to this effect in order to give it any weight. Asked if he mentioned it during his DIBP interview, he claimed that he thought he was asked and answered this.
It was put to him that he had told the DIBP interviewer that his application had been filled out by his agent from what he told the agent and this had been read back to him in Arabic. He made no mention to DIBP regarding the pistol incident, and also that on [a date in] October he had received a phone call from an unknown number, a car came and he was asked to get in which he refused and he then met them in a vacant lot 200 metres from his house. They tried to stab him here but a friend got in the way and was stabbed instead. He had made no mention of this during the hearing. The inability to mention the pistol during the interview and statement, and that he had claimed that the statement had been read back to him in Arabic. These inconsistencies could call into question his credibility as a witness and that he had been fabricating claims.
He claimed that sometimes he remembered some things and forgot some things. This was normal. Under S 424AA it was put to him that he claimed immediately after the stabbing he went to his [Relative A’s] house where he stayed for 2 weeks and then returned to his house where he stayed for one or two months. During the hearing he made no mention of his [Relative A’s] house and said that he stayed in his house for five or six months before they moved to another one. This raised concerns about the applicant’s credibility. He repeated that it was normal for people to remember and forget things and he had recently become very forgetful.
Asked if he knew what reason he gave on his [temporary] visa to come to Australia and he claimed he didn’t know as his father did everything. He stated in his statement that an event occurred [in] October which was a very specific date, then told his father he needed to get out of Jordan and had a passport but didn’t leave immediately. Then six weeks later he lodged a [temporary] visa application which didn’t indicate any urgency. It took two weeks to approve but they didn’t leave for three months after it was approved and didn’t apply for protection for three and a half months after arriving in Australia.
There was nothing there to indicate that he was in any hurry to get out of his circumstances. He could have left the day after the incident and gone to Egypt but didn’t. And he was in no hurry to try to come to Australia or apply for protection and it was a concern that the real purpose of coming to Australia was for economic reasons and that his entire claim may have been fabricated. He claimed he was hoping he would be forgiven in Jordan but applied when he lost hope. Asked what made him lose hope, he claimed he did nothing by himself, he did everything his father told him. It was put to him that he was over 18 and considered an adult and responsible for his actions. He claimed that culturally he still had to do what his father told him. It was put to him that the Tribunal’s main concerns were the inconsistencies in his claim which had nothing to do with his father.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a [temporary] visa [in] March 2015. He applied for protection [in] June 2015. The applicant is [an age] year-old Jordanian national and his application will be assessed as such. He claimed that if he returned to Jordan he would be killed by the brother/family of a girl with whom he had spoken to and met on several occasions. He had no other claims.

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 his claims to wholly lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible, or truthful witness, and find that he fabricated his entire claim and lied under oath in order to be granted a protection visa.
Relationship and Family Targeting
I do not accept that the applicant has had any relationship with a girl in Jordan that has made him become a target for serious harm. To begin with the nature of the relationship appears benign in the extreme, consisting of a few face to face meetings at her school or in the street and several phone calls. He was also unable to recall with any certainty during the hearing (even to the month/year) when he met this girl – while some time has passed, he has had plenty of time to recall the dates prior to the hearing being conducted and it is reasonable to believe that given the seriousness of the consequences of the ‘relationship’ he would have a more accurate idea of when it began.
Even if I were to accept that such limited contact would trigger an ‘honour crime’ from the girl’s family (which I do not) there is no independent country information that the Tribunal is aware of, nor was any provided by the applicant, that would indicate that men are targeted in these types of crimes.
There are a range of other issues that supports the finding that this claim is entirely fabricated. The method of his discovery seems implausible. Even though [Ms A] allegedly needed to keep their contact secret, she would use her [Relative B’s] phone to call the applicant when hers ran out of credit. This in itself appears implausible given their claimed need for secrecy when other options were open to her. But the unlikely coincidence of the applicant inadvertently texting to [her Relative B’s] phone at exactly the same time her brother was holding it is so extreme to be completely implausible.
During the hearing he also claimed that three men with a pistol approached his house to target the applicant yet he had never previously mentioned this – again it is reasonable to believe that such a threatening action would have been included in his claim previously. I do not accept that he told the incident to his lawyer but he never wrote it down. He was asked to provide a statutory declaration from the lawyer to this effect post-hearing in order for the claim to be given any weight yet failed to do so.
I do not accept that either he was threatened with a pistol or that he was charged at with a knife and his friend (who sought to protect him) was stabbed instead. The latter claim was made in his statement but never mentioned during the hearing. He also claimed during the hearing that the only time he physically met [Ms A’s] brother was when a mutual friend introduced them to try to get them to reconcile, which is inconsistent with his written statement where the brother came in a car and asked him to get inside before they met in a vacant lot where the brother tried to stab him.
His accounts of what occurred subsequently were also inconsistent. In his DIBP interview he claimed that he fled to his [Relative A’s] house for two weeks, then to his family house for one or two months before they moved to a new house [number] minutes away. Yet in his hearing he claimed that he stayed in his family house for six months before they moved to the new house.
His actions following the threat are also not indicative of someone at risk of serious harm. He had a valid passport and his father worked for [Employer 1] and he could have left the country straight away to Jordan or Egypt immediately to flee the danger, without the need for a visa prior to leaving. Yet he didn’t lodge a [temporary] visa application for six weeks after the incident, didn’t leave for three months after receiving it and then didn’t apply for protection for another three months after they arrived in Australia.
I also note that the applicant’s father returned to Jordan voluntarily the day before the hearing even though he had claimed the same people would harm him and the applicant (folio 43). I don’t accept that a temporary peace was brokered to allow him to see his sick mother. He would be unable to return to Australia having left, and the claim that the cause of the applicant’s father returning relies solely on the applicant’s testimony which I have found to completely lack credibility.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason set out in 5J(1)(a) either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever in a relationship with a girl called [Ms A], or that her family sought to harm or kill him I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk that he will suffer significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1498

25 August 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing