1606344 (Refugee)

1606344 (Refugee) [2019] AATA 97 (16 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606344
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Shahyar Roushan
DATE:16 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 January 2019 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – imputed political opinion – forced to give goods to extremists – kidnapped – credibility – delay in apply for protection – family members in Australia – mental health claims do not explain inconsistencies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 424A, 438, 499
Migration Regulations 1994 (Cth) 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 on 18 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Lebanon, arrived in Australia on a [temporary] visa on [date] November 2014 and applied for a protection visa on 18 February 2015.
Protection visa application
According to his protection visa application, the applicant is [an age]-year-old Sunni Muslim. He resided in Tripoli before moving to [Town 1] in 1999. In the period between 1981 and 1996, he worked and lived [overseas]. His wife, [children] and [several] of his siblings reside in Lebanon. One of the applicant’s brothers and his uncle live in Australia.
The applicant was the owner of [a business] from 1981 to 1996. In 1997, he started working as a [technician] and in 2010 he opened his own business in Tripoli, trading in [a type of machinery]. The applicant has travelled extensively for work over the past 30 years, including to [several other countries].
In a statement provided in support of his application for a protection visa, the applicant made the following claims.
He owned a [business] in [Town 2], North Lebanon.
On 3 October 2014, five ‘veiled’ armed men with long dark hair approached him at his business and demanded access to his machinery in order to [do some work] in the area. He asked them to pay for the machinery, but they refused and he asked them to leave. The men raised their weapons, shouted, made threats him and accused him of being their enemy for not giving them what they wanted. Some passers-by intervened and asked the men to pay for the equipment but this worsened the situation. The men eventually left but they promised to return.
A few hours later, another group of men arrived and demanded the machinery, threatening to bring more people, kidnap the applicant’s family and burn down his business. After a while, the applicant reported the incident to the [Town 2] police. However, the police told him they were unable to attend and could not protect him or his business. The police told him to ‘close the shop and go away’, so he went home.
When he returned to work on the following day, he was kidnapped by four veiled men at gunpoint. The men put a ‘veil’ over his head because he refused to stop screaming. He was mistreated and his phone was destroyed. He was taken to a room in the Akkar mountains in North Lebanon, where he was questioned and threatened by his kidnappers, who claimed to be from ISIS and Al-Nusra Front. They said they ‘wanted to establish Islamic State which will be called Al-Khilafa, applying the Islamic Sharia as wanted by the Prophet Mohammed. A state of justice for every Muslim even to the enemies of Islam and the western infidels and their arrogance’ (sic). The men accused him of not supporting their cause and threatened to kill him if he did not cooperate. The applicant eventually agreed to give them the machinery and called his employee to make the arrangement. The next morning, he was able to escape when an old shepherd who was passing by released him. The shepherd opened the door and he ran towards ‘a public area’ and took a taxi home.
On the following the day, the applicant returned to work and the men came again and took [machinery] away.
After two days, another group of men came and demanded USD[amount] to be paid within one day. The men said he should either pay or join their group to fight against ‘the infidels and apostates’. He told them he will try to come up with the money and the men made threats against him and his family if he did not keep his promise. Upon returning home, he told his family about the situation and took his wife and children to his late grandmother’s house in [Town 3]. He contacted his uncle in Australia to arrange for him to leave the country. His wife and children returned to their home a few days after his departure.
Following his departure from Lebanon, the men approached his wife and children once enquiring as to his whereabouts. The applicant’s wife told him that she felt that the family were constantly being watched.
The applicant fears being kidnapped, tortured and killed if he returns to Lebanon. He will not be able to resume his business and he will not be able to support his family. The authorities are unable to protect him.
The interview
The applicant was interviewed by a delegate of the Minister on 29 June 2015. Where relevant, the applicant’s evidence to the delegate is referred to below.
The delegate’s decision
On 18 April 2016, a delegate of the Minister refused the application. The delegate found the applicant not to be credible and was not satisfied that he faces a real chance of persecution. Nor was the delegate satisfied that there are any substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Lebanon, there is a real risk the applicant will suffer significant harm.
The review application
The applicant applied for a review of the delegate’s decision on 5 May 2016.
The hearing
The applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments. The applicant was assisted by an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
The certificate
The Department of Immigration’s (the Department) file relating to the applicant’s protection visa application contained a s.438(1)(a) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1)(a) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest, must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.
The folios subject to the s.438(1)(a) certificate consisted of the Department’s identification checklist and the internal disclosure decision checklist. The only reason stated in the s.438(1)(a) certificate was that the information contained in the folios identified was related ‘to internal working documents and business affairs’. The Tribunal is not satisfied that this reason provides a sufficient basis for public interest immunity. The Tribunal finds the certificate to be invalid and it has proceeded to treat the document in the usual way as if there was no certificate.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 – 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
Analysis, reasons and findings
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to the various inconsistencies in his evidence, the unpersuasive nature of some key aspects of his claims and other reasons detailed below.
In the statement attached to his application for a protection visa, the applicant stated that, on 3 October 2014, he was approached by five men at his business. They demanded he give them his machinery without payment. He refused and they intimidated and threatened him. Another group of men returned that afternoon. They asked for the machinery and made threats against him. On the following day, he was kidnapped and detained in a room in a location in Akkar. He eventually agreed to give his kidnappers the machinery. On the following morning, a shepherd, who was passing by, opened the door and the applicant ran towards a public area and took a taxi home. The next day, the applicant returned to work and the men came again and took away [machinery]. After two days, another group of men came and demanded USD[amount] to be paid within 24 hours. Upon returning home, the applicant informed his family of the situation, packed his bags and took his wife and children to his late grandmother’s house in [Town 3]. He contacted his uncle in Australia to arrange for him to leave the country and he closed his business. His wife and children returned home in [Town 1] a few days after his departure from Lebanon.
At his protection interview, held on 29 June 2015, he gave evidence inconsistent with his written application. He told the delegate that he had continued to reside at his home in [Town 1] until his departure from Lebanon. Following his arrival in Australia [in] November 2014, he told his wife to move to the house in [Town 3], where she stayed there for three or four days before returning to the family home in [Town 1]. He also told the delegate that he closed his business for a few days and then reopened it. He said he continued to operate his business until a week before he came to Australia and that he continued to own the business, as well as the [machinery] associated with the business, which are being guarded by a ‘watchman’.
At the Tribunal hearing, the applicant provided yet another narrative, stating that he continued to reside at his home in [Town 1] from 1999 until his departure from Lebanon. He initially stated that he spent time at the house in [Town 3] during summers and he slept overnight at his sister’s house in Tripoli on the odd occasion. He said, following the claimed incidents in October 2014, he was very careful when residing at home, trying not to be seen when entering or leaving the house. Later in the course of the hearing, when asked why nothing had happened to him in the period immediately before his departure from Lebanon, he said he was not home all the time and he was ‘moving around’. He also told the Tribunal that he sold all his machinery and equipment within six months of arriving in Australia and he no longer had a business at the time he was interviewed by the delegate.
The inconsistencies in the applicant’s evidence were put to him at the hearing. He responded that it is possible that there were errors in interpreting at the interview and he was under pressure at the interview. His circumstances are difficult because he has not seen his family and he is [age] years old, which is a ‘bad age’. In response to the Tribunal's s.424A letter, the applicant’s representative explained that the applicant ‘suffered mentally from the incident that occurred’ and he finds it is ‘hard to recollect dates, etc’. His ‘state of mind and stressful circumstances lead to not being able to recall specifics of the event in question’ and that the events that led him to flee Lebanon did indeed occur. He was ‘confused about specifics of the events’. He has limited education and ‘the incident along with his constant worries about his family, his stressful job [etc] has led the Applicant to have mixed anxiety and depressive disorder and symptoms of Post-Traumatic Stress disorder’. He believes that his mental health has affected his ability ‘to recall events’.
The applicant submitted a psychological assessment from [an] accredited mental health social worker, dated [November] 2018. The assessment is based on two separate sessions attended by the applicant in November 2018 and refers to self-reported symptoms and an account of the applicant’s experiences as narrated by him to [his social worker]. In her report, [the social worker] observed that the applicant ‘was able to answer questions and recall his past without difficulties but had difficulty remembering how long or specific dates when events which occurred before his escape to Australia, providing approximate time’. She went on to state that ‘[the applicant] identified concentration and memory has been affected due to intense stress.’ The applicant reported to [the social worker] that, as a result of his experiences, he has experienced signs and symptoms of distress, including anxiety, depression and ‘difficulty concentrating’. On the basis of these self-reported symptoms, [the social worker] opined that the applicant’s symptoms have features consistent with ‘mixed anxiety and depressive disorder’ and post-traumatic stress disorder.
Having considered the assessment, the Tribunal notes that [the social worker] appears simply to have taken at face value the applicant’s claims as they were recounted to her. The applicant’s account does not seem to have been investigated or challenged by [the social worker]. Other than the applicant’s own account of his poor concentration and memory, there is no other information in the report to satisfactorily explain to what extent the memory of a person in the applicant’s position may be affected. Indeed, the assessment, in recounting the applicant’s narrative of his claims, refers to specific dates in October 2014, but provides yet another conflicting account in relation to the applicant’s movements after he was allegedly asked to pay ‘ISIS’ USD[amount]. It was stated in the report that the applicant returned home [in] October 2014 and, together with his family, left his home for [Town 3]. Whilst his wife and [children] returned to Tripoli after one week, he ‘stayed away’ from the family home and did not return to his business. He returned home late at night ‘just before’ leaving for Australia and did not go near his business. Significantly, in relation to the closure of the applicant’s business, it is stated in [the social worker]’s assessment that ‘Government documents show that the business was officially closed off [in] September 2016 ([the applicant] has a picture of the legal paper discussed above - non-translated document).’ These ‘documents’ were not submitted to the Department or the Tribunal.
At the hearing, whilst the Tribunal had to ensure that the applicant stayed on topic, he was able to recount his evidence and refer to specific claims. It is, therefore, reasonable to expect him to recall more obvious general events in his life, including he was in hiding or lived at home before coming to Australia. There was nothing in [the social worker]’s assessment to explain the applicant’s varying accounts of his whereabouts between [October] 2014 and [November] 2014. The Tribunal does not accept that the applicant’s state of mind or mental health explains the nature of the inconsistencies in his evidence relating to his movements or the closure of his business.
On 14 November 2018, the applicant’s representative forwarded to the Tribunal a letter from [Mr A], dated [November] 2018. In his letter, [Mr A] stated that he is ‘a very close friend’ of the applicant, having known him more than 20 years. He stated that he always advised the applicant ‘to take care when dealing with people and not be so trusting’. He was worried that the applicant’s ‘machinery would attract suspicious and unpleasant people’. He also warned him ‘about certain people who would take the services and not pay for them’. Towards the end of 2014, he visited the applicant’s business and noticed that he was ‘very upset’. He again warned the applicant ‘to be extremely careful, especially during this time of turmoil in Tripoli’. He returned a few days after ‘this incident’ and did not find the applicant there. After a few days, he contacted the applicant, who told him that ‘he was afraid for his safety’. He then heard that the applicant had travelled to Australia. The Tribunal found [Mr A]’s letter vague and ambiguous. It contained no other information or details to verify the applicant’s claims or to the address the concerns identified by the Tribunal.

The Tribunal has also considered the applicant’s comments at the hearing that it is possible that there were errors in interpreting during his interview with the Department. The applicant did not specify what errors in interpreting had occurred at the interview or how these claimed errors had contributed to giving rise to inconsistencies in his evidence. The Tribunal further notes that, neither at the interview nor at any other point after the interview, had he raised any concerns with regard to the interpreter or the standard of interpreting. The Tribunal is not satisfied that the standard of interpreting at the interview explains the inconsistencies in the applicant’s evidence.
In addition to the inconsistencies identified, the Tribunal has serious concerns in relation to the persuasiveness of the applicant’s account of his experiences. For example, the applicant claimed that he was kidnapped and taken to a remote location in Akkar. He escaped on the following day with assistance rendered by a shepherd. When he returned to work the next day, those targeting him returned to the business and took a piece of machinery. However, the applicant did not claim that he was ever questioned, reprimanded or punished for having escaped his captors. Furthermore, those targeting him had returned two days later asking for a large sum of money to be paid within a day. Nevertheless, despite the applicant claiming both at the interview and at the Tribunal hearing that he spent periods of time at his own home and his machinery had remained at his place of business for at least six months after his departure, he had faced no consequences. He was not pursued or harmed and his business and its assets were not targeted. When this was put to him at the hearing, the applicant stated that they had taken two pieces of machinery (in early October 2014). He added that 10 days after he was kidnapped, he applied for a passport, he was not at his house all the time and he was very careful. The Tribunal finds these explanations unconvincing. The Tribunal considers it highly implausible that these armed and dangerous extremists who had, according to the applicant, targeted his business, threatened him and accused him of being their enemy for not giving them what they wanted, had taken no further action after the applicant did not pay the money they had demanded and made no further attempts to take any machinery.
Finally, the applicant arrived in Australia on [date] November 2014. However, he did not apply for a protection visa until 18 February 2015. When this was put to him at the hearing, he stated that no one told him that he could apply for protection and then someone told him that he could. The Tribunal also put to the applicant that he has a brother, an uncle and a number of cousins in Australia. He responded that his brother was not in Australia at the time of the ‘interview’ and his uncle is very old and unwell. The Tribunal does not find these explanations satisfactory. The applicant is very well travelled and resourceful. He has many relatives in Australia and has been able to find employment. The Tribunal is of the view that the applicant’s delay of some three months in applying for a protection visa casts doubt on the genuineness of his fear and the credibility of his claims.
For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve an immigration outcome.
The Tribunal, therefore, does not accept that the applicant was targeted, threatened, harassed, kidnapped, mistreated, abused, extorted or harmed by any individual or group, including ISIS, Al-Nusra or any Sunni extremist group in Lebanon. The Tribunal does not accept that he was forced to give away his machinery, equipment or business assets to any group or individual. The Tribunal does not accept that he was asked to pay money to any group or individual. The Tribunal does not accept that he was in hiding at any point in time. The Tribunal does not accept that he was or he is of adverse interest to anyone in Lebanon. The Tribunal does not accept that the applicant departed Lebanon in November 2014 for the reasons he has provided. The Tribunal does not accept that he was harmed in the past or that there is a real chance or a real risk that he will be harmed by any extremist group, including ISIS and Al-Nusra.
At the hearing, the applicant stated that he was concerned about the security situation in Tripoli, which may prevent him from being able to open another business. He stated, in order to run a business, one has to be follower of someone else, such as a politician or a religious leader, which could also cause problems. He added that he is too old to be employed by anyone. The applicant did not claim that he was a follower of any political or religious party, movement or group. There was no persuasive evidence before the Tribunal to suggest that the applicant will be denied the capacity to earn a livelihood of any kind, threatening his capacity to subsist. The Tribunal finds that there is no real chance or a real risk that the applicant would be subjected to serious or significant harm for the reason of his religion, imputed political opinion or membership of any particular social group, including Lebanese nationals or Lebanese men, Lebanese men over [a certain age] or any subset of the these groups.
The applicant also told the Tribunal that he feared being harmed by extremists and ‘troublemakers’ because he is hardworking and would like to drink a little whisky at the end of the day and to take his wife to parties. He stated that he only consumed alcohol at restaurants and parties in the company of others. As it was put to him at the hearing, there are venues in Tripoli where alcohol is consumed[1] and there is no persuasive information before the Tribunal to suggest that individuals who drink alcohol in Tripoli, regardless of their religious faith, have been targeted for harm by anyone. The applicant stated some areas in Tripoli are very fanatic, but he does not reside in those areas. The Tribunal finds that there is no real chance or real risk that the applicant would be subjected to serious or significant harm by anyone for consuming alcohol at the same level he has in the past if he were to return to Lebanon.
[1] See for example, ‘From Bikini To Burkini, Or Why Lebanon’s Tripoli Is Awesome’, stateofmind13.com, 28 August 2016, >
The applicant did not expressly claim to be concerned about general violence, political conflict and tension in Lebanon. To the extent that this claim may be implied by the applicant’s evidence, there is no persuasive information before the Tribunal to suggest that the tensions, lack of general security and any instability the applicant may be concerned about is faced by him personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution.
Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant may fear are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.
The Tribunal has considered [the social worker]’s psychological assessment in relation to the applicant. However, no specific claims for protection were advanced in relation to the applicant’s psychological condition. There was no persuasive evidence before the Tribunal to suggest that there is a real chance or a real risk that the applicant will face serious or significant harm in Lebanon arising from his state of mental health.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior 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.
…

[2019] AATA 97

16 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction