1608643 (Refugee)

1608643 (Refugee) [2018] AATA 3630 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1608643
COUNTRY OF REFERENCE:                  United States of America
MEMBER:Nora Lamont
DATE:27 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 27 August 2018 at 1:23pm
CATCHWORDS
Refugee – Protection Visa – United States of America – Race – White Americans – Age – Middle aged – Economic hardship – Delay in applying for a Protection Visa – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

CASES
Andaraj Subramaniam v MIMA [1998] VG310
Chan v MIEA (1989) 169 CLR 379

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 25 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of United States of America, applied for the visas on 15 September 2015. The delegate refused to grant the visas on 24 May 2016.
The applicants appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. They were not represented in their review before the Tribunal.

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 themselves 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 applicants travelled to Australia on valid United States of America passports and stated they were nationals of the United States. The delegate had no issues with the applicant’s identity. Therefore the Tribunal has assessed the applicants’ claims against the United States of America as their country of nationality and receiving country for Complementary Protection purposes.

Background and family composition

The applicants are a family comprised of the mother [Ms A] (age [age]) and father [Mr B] (age [age]), one [son] (age [age]) and one [daughter] (age [age]). The applicants have another daughter [who] is on her own visa and has subsequently married an Australian citizen. The applicants arrived in Australia as a family on 26 June 2013 on a [Student] visa (issued to the mother [Ms A]) which was valid until 13 March 2015.
On 11 March 2015 the applicant [Ms A] lodged an application for [another temporary] visa which was granted on 13 March 2015 and valid until 15 September 2015. On 15 September 2015 the applicant [Ms A] applied for a Protection visa.
The applicant [Ms A] departed Australia on 12 July 2014 to see her ill mother in the United States and returned on 27 July 2014. Her husband [Mr B] returned to the United States in July of 2016 to see his ill father.
Prior to their arrival in Australia in 2013 the applicants lived in California where [Mr B] operated [a] business and [Ms A] was a housewife. The family sold their home in [City 1] California and the business run by [Mr B] prior to departing for Australia. Upon arrival in Australia the family purchased a home in [Suburb 1] where they currently reside.
The applicant [Ms A] is currently unemployed. Her husband [Mr B] is self-employed in [a specified] industry. The youngest daughter [is] in year [grade] and the son [works].
The family is heavily involved in their Baptist faith and local Baptist church and the youngest daughter [attends] [a] School.

First named applicant

The first named applicant (the applicant) [Ms A] is [an age] year old female born and raised in California USA. Her husband, the second named applicant; [Mr B] is also from California USA. They married in 1992 and have three children. Two of those children applicant three and four are dependent on their mother’s visa. The first named applicant’s claims are the claims for the family.
The first named applicant’s claims as presented in her initial application to the Department are as follows:

In 2013 we left the USA to move, live in, study and work in Australia. We chose Australia because we knew it would be a safe place for our family and our children would be able to have a bright future.
I enrolled and completed my [Occupation 1] course. I am registered with [an agency] and the [Occupation 1 Board]. As [an Occupation 1] I am able to provide financial support for the entire family.
If we return to the USA we will have nothing, own nothing. We have no one to live with. We have no work to return to. My education here will be unused as I cannot transfer it. We will be homeless, living on the streets. We will become sick and ill. We will not have medical insurance.
We cannot seek assistance financially or medically from the government due to our race, nationality and age. We will suffer greatly. We will be subjected to significant harm.
We had our plan. It was to move to Australia, complete my [Occupation 1] course, receive a permanent visa, work as [Occupation 1] and become citizens. As [an Occupation 1] I can provide financial support for the family. We would have a safe country to live in and a safe place to live out the rest of our lives. This is what we wanted as a family, and our future generations.
We would be living on the streets; we would be harmed physically and emotionally. We would become ill. We would not be treated fairly. We would not be able to find adequate work. Work is handed out to minorities, immigrants and youth before middle aged white Americans.
The government would offer no support financially or medically. Our family would be deprived of any future where they can be successful.
The government of the United States of America would not offer us protection. We would not qualify for support due to our race, ethnic background and age. White American middle aged citizens are not offered equal opportunity against minorities and immigrants, both legal and illegal.
We cannot relocate elsewhere, we have sold everything when we came over here, and our investment is in my [Occupation 1] education here. We can financially support ourselves here. We have no debt or loans here. We are a very healthy family. We have established roots here within our community. We feel safe here. We appreciate the values Australia has, the heritage, customs and way of life.

In addition, the Tribunal received a Letter of Plea for Protection from the applicant and the letter can be summarised as follows:

In 2013 we made the decision as a family to move, live in, study and work in Australia, I enrolled in [an Occupation 1] course. In 2014 [the agency] and the Australian government changed the rules, making my studies ineligible for a work visa.
My [Occupation 1] [qualification] is not transferrable to many states in the USA, Many more states will require more studies and testing which is too expensive.
We are requesting Complementary Protection in Australia as a country who will protect us from suffering if we were to return back to the United States. We feel if we were to return we will suffer greatly. We will have no money, no home and no medical insurance. We would live on the streets or in homeless shelters. We would be subjected to harm and danger.
We would not have any support or protection from our government due to our race, nationality and age.
We own our own home, two vehicles, a business, our daughter is enrolled at school;
We are involved in our church and our family is involved in the community as volunteers, we have friendships and of course my valid [Occupation 1] [qualification].
We are a family of good character and would be proud to say we are Australian residents.

At the Tribunal hearing the applicant gave the Tribunal a packet of documents containing letters from friends and colleagues in support of the applicants’ application for protection, along with background of the family and photos.
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country of the United States of America, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Tribunal Hearing

During the Tribunal hearing the first named applicant [Ms A] said that she came here with her family to study and become [an Occupation 1]. She attended [an institute] and received a [qualification] in [Occupation 1]. She subsequently worked at [a workplace]. She stated that she knew Australia had a shortage of [Occupation 1] and that she planned on applying for a permanent work visa, but during her studies [the agency] changed the rules and she was no longer eligible for the permanent visa due to her age. The applicant also said that it was while she was doing the course she found out her [Occupation 1] skills would not be transferrable to the United States. When questioned on this she said that she would have to go back to school in the USA in order to qualify as [an Occupation 1].
The Tribunal asked the applicant why she was seeking complementary protection. The applicant said that they would suffer financial hardship if they were to return to the USA. She said they own their own home, they own four vehicles here in Australia. Her husband had a business in the US but that was now sold.
The Tribunal asked the applicant about her claim that she is persecuted due to her race. The applicant said that middle aged white people cannot get jobs or financial assistance as the government hands out assistance to immigrants first. The Tribunal put to the applicant that the majority of people in the USA are in fact white and therefore the Tribunal wanted to know how she or her family were persecuted as part of the majority.[1] The applicant said she did not know how to answer the question. Further, the applicant could not point out one instance of persecution she had whilst living in the United States.
[1] >
When the Tribunal asked the applicant if she had evidence or country information about white people being persecuted due to their race she said that she did not have any documentation or proof only that she had lived there most of her life and she had seen it. She then stated that illegal immigrants had degraded her children’s schools. The applicant was vague and spoke in generalities.
The Tribunal read to the applicant an excerpt from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status in relation to race: [2] Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights.[3] The Tribunal then asked the applicant to comment on being in the majority in the United States and claiming persecution on the basis of race. The applicant replied that where she is from in California whites are a minority. However, the Tribunal then read out statistics to the applicant that show in [City 1] California the majority or 56.4% of people are white.[4] The applicant said she didn’t have any statistics.
[2] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, reissued December 20111) at [68]. [70] (Handbook).
[3] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ
[4] [Source information deleted].
The Tribunal then asked the applicant what she meant in her application for protection when she claimed asylum based on Nationality. The applicant asked where the Tribunal got that from. The Tribunal read to her from her written claims to the Department where she was claiming Nationality. The applicant said that what she meant was white American. She said that when she was [age] years old and pregnant with her [eldest daughter] she went to get government assistance and she was denied because her husband was in school and had not filed for unemployment. But that on every form she filled out it said if you are an illegal immigrant you automatically qualify so continue your application.
The Tribunal then asked the applicant about the President Donald Trump not in respect of her personal political views but in respect of his stance on illegal immigration and the policies he is bringing forth, as she was concerned about illegal immigrants. The applicant responded that she wasn’t there but she felt it was positive and securing the borders was an overall good thing for America.
The applicant was asked about her claim in respect of “age”. The Tribunal noted that she herself had been disqualified from obtaining a permanent work visa based on her age here in Australia so age can be a factor no matter where you live. The applicant said that she is [age] years old and she cannot find a job in the USA as there just are no jobs in the USA and she can get a job here in Australia. The Tribunal discussed with the applicant that the unemployment rate in the USA was at 3.9% and in Australia it was 5.3% so there is less unemployment in the USA than there is in Australia.[5] The applicant said she had looked at jobs in California and there just weren’t any jobs for her. The Tribunal asked about her husband [Mr B] and his ability to get employment in the USA and she said we would have to start a business again and that would take many years. But he is nearly [age] and the [people working in his field] these days are 18 so it would be difficult. However, the Tribunal did not find nor does it accept that the applicant and her husband would be prevented or unable to obtain employment in the USA based on their age.
[5] >
The Tribunal asked the applicant for further information as to her claims that the family will be homeless, they will be sick and ill, they won’t have medical insurance and they won’t get any government assistance due to their race, nationality and age. The Tribunal told the applicant that they had found a list of 80 Federal Welfare Programs that the applicants could apply for in the event that they needed them. [6] The applicant said she didn’t know if she would qualify as with most of these programs you need to log in and create an account. The Tribunal said there are programs such as Medicaid, housing assistance, and food stamps available to help. The Tribunal asked about the applicant’s family and their willingness to assist the family upon their return to the USA. The applicant said her brother lives in [another state] and has been divorced twice and has his own financial hardships and her father is old and needs care.
[6] >
The Tribunal asked the applicant what she meant by the USA government would not offer us protection. The applicant said she didn’t know of any protection or what it means. The Tribunal said that it means that as a citizen of the USA the government would offer protection to its citizens or it would not. The Tribunal read out parts of the Bill of Rights of the United States Constitution to the applicant; the right to free speech and freedom of religion, the protection of the citizens against unreasonable search and seizure, the right to due process. [7] The applicant said that she couldn’t afford the protection. When asked to explain she said well if I wanted protection under due process I would have to hire lawyers to represent me. The Tribunal said it was the protection overall not a specific about what she can afford.
[7] >
The Tribunal explained that the applicant had asked for complementary protection and therefore the Tribunal would need to find that they are not refugees and then look at complementary protection. The applicant said she wanted to bring up Religion as there is a bill in California AB 2943 [8] that targets people who believe that people can overcome unwanted same sex attraction or gender identity confusion. The applicant said that the author of the bill said people of faith need to evolve with the times and go with these changes. The Tribunal stated it sounded like it would be a court challenge since the constitution of the United States guarantees freedom of religion. The Tribunal also indicated to the applicant that there are 49 other states they can live in should they choose to.
[8] type="1">
The Tribunal asked if there was anything else under complementary protection and she said that her daughter was married and that it would be difficult to leave her or not see her if they had to go back to the United States.
The Tribunal put to the applicant adverse information under 424AA of the Migration Act and explained to the applicant why this was adverse and how it could form part of the reason or the reason for affirming the decision under review. The applicant was given time to respond. The Tribunal put to the applicant that she and her family first arrived in Australia on a student visa. They then applied for [another temporary] visa and then a protection visa. This may lead the Tribunal to believe that the applicant’s do not have a well-founded fear of persecution in their home country. The applicants were in Australia for many years before applying for protection and both the applicant and her husband returned to the United States during this period of time. This caused the Tribunal to doubt that the applicants have a real chance of serious harm or a real risk of significant harm upon return to the United States. The applicant said that immigration told her to apply for a protection visa due to economic hardship. The applicant stated her husband and herself did not think they could apply for protection due to being from the USA. The applicant said they had no idea that they could not return to Australia after their protection visa was refused. The applicant stated she did feel that they would suffer significant harm if they were to return to the United States.
The second named applicant [Mr B] gave evidence and presented arguments at the Tribunal hearing. He said that the qualities he grew up with in the USA were aggressive, greedy, and selfish. Now that he is living in Australia he is selfless and cares for others. In the USA he never spent time with his children but now he is a new man in Australia and he has adopted Australian values.
[Mr B] also said that the family would be financially devastated as they have no house and no jobs. The plane fare alone for four people would be hard. He also recently got his [specified] qualifications and that isn’t even something they do in America. He went on to say that there have been attacks on religious freedoms in America recently and that Pastors were being forced to marry same sex partners. They would force them not to be able to talk or preach about same sex being sinful. [Mr B] also said he had grown spiritually in Australia and it was more open and more bible oriented here in Australia.
[Mr B] said that he prayed a lot to the Lord to guide them when they got the student visa as they sold their house in two weeks and then he was able to sell his business and he felt that God was calling him here for permanent residency. It’s always been his heart’s desire to live in Australia.
The applicant’s son [and] daughter [both] gave testimony that they would like to stay in Australia to live. The applicant’s oldest daughter [and] her husband [also] provided testimony as to why the applicants should be able to continue to live in Australia.

Findings

Limited acceptance

The Tribunal accepts that all the applicants are nationals of the United States of America. The Tribunal accepts that all the applicants enjoy living in Australia and do wish to remain in Australia permanently. Further, the Tribunal accepts that the family came here with the expectation of permanent residency and that the family have a desire to stay in Australia. The Tribunal also accepts the applicants are Baptist Christians who regularly attend church and that their youngest daughter is [at] a [school] in [Suburb 1].
The Tribunal find that the applicants were truthful and honest about why they applied for a protection visa and why they wished to remain in Australia. However for the reasons that follow the Tribunal does not find they face a well-founded fear of persecution on return to the United States for any refugee reason as set out in s.5J(1).

Delay in applying for a Protection Visa

The applicants have been in Australia since 2013. It wasn’t until mid-2015 when they had run out of other visa options that they applied for a protection visa. The Tribunal is mindful of what the courts have stated about delays in applying for a protection visa. The court has held that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuiness or depth of an applicant’s fear of persecution. [9] The applicants were honest with the Tribunal that their plan all along had been to stay in Australia permanently and it wasn’t until the [Occupation 1] visa changed and the applicant was no longer qualified for a permanent visa that they had to look for other options in order to stay in Australia permanently.
[9] Andaraj Subramaniam v MIMA [1998] VG310 of 1997
The Tribunal considers that had the applicants had a genuine and urgent fear of persecution arising from their circumstances they would have sought to lodge a protection visa application much earlier, and the delay leads to a consideration that their claims in this regard are not genuine or urgent.

Race

The applicants claimed fear of persecution due to their race as white Americans. As discussed at the Tribunal hearing with the first named applicant, the majority of people in the United States are white. The applicant then said that it was not majority white where they lived in California; however the Tribunal was able to point out that the majority was white in [City 1] California. The Tribunal was unable to find any country information showing that white people in the United States are persecuted or discriminated against due to their race. Further, the applicant was unable to provide any specific examples of being discriminated against due to race. For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution on the basis of her (white) race.

Nationality

The applicants claimed they needed protection based on their nationality. When asked what the first named applicant meant by that the applicant said that when she was pregnant with her oldest child she went to get some financial assistance. She was denied that assistance because her husband was a student and not on unemployment. She said however on the forms all the illegal immigrants automatically qualified for the assistance. However, in the applicant’s own oral evidence she said the reason she was unable to get financial assistance was because her husband was a student and he had not claimed unemployment, not for reasons of her race or nationality. Therefore the Tribunal does not accept that the applicant has been harmed or will be harmed based on her race or nationality.

Age

The first named applicant claims that she and her husband will be discriminated against based on their ages. Whilst age may constitute membership of a particular social group the Tribunal finds that the applicant and her husband our educated and resourceful and there was no evidence presented that upon return to the USA they would not be able to find employment due to their ages. The Tribunal accepts that upon return to the USA as middle-aged unemployed individuals they may find it difficult. However, they are both skilled, are able to sell their property in Australia including a house and four cars and the applicant’s husband has been self-employed in the past. The applicant said that there are no jobs in the USA and that due to their ages they would not be able to find a job. The Tribunal finds it ironic that the applicant is claiming that she will be discriminated against in the USA due to her age, yet here in Australia she is unable to qualify for the permanent visa due to her age. Further, her husband had previously been refused a skilled visa to Australia based on his age.

Other claims of no government support financially or medically

The applicant claimed that if the family is returned to the United States they will not be provided with any support financially or medically from the government and they will become sick and ill and they will be living on the streets. However, as above the Tribunal does not accept that upon return to the United States the applicants will be homeless and that they will be sick and ill and not provided with any support. The Tribunal discussed with the applicant that there were over 80 different benefit programs available to the applicant and her family. Further, the family has assets in Australia including a home and four cars they can sell and they are educated and resourceful and they had not provided any evidence or country information that they would be destitute upon return to the USA or that they would not be provided with some form of government assistance should they need it.
The Tribunal could find no harm done to the first named applicant in the past in the United States for any claimed reason by the applicant. Based on all the above, the Tribunal does not accept that if she returns to the United States of America she faces a real chance of persecution based on her race, nationality or age or any of the above claims. The Tribunal finds that the applicant does not have a well-founded fear of persecution as per s.5.J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to the United States of America, there is a real risk that the applicant will suffer significant harm from the government or anyone associated with the government, or anyone based on nationality, race, age, no government support financially or medically and age. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s36 (2)(aa).
There is no suggestion that the applicant satisfies s36 (2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36 (2).
For the reasons above and given that the applicants’ claims are the claims of the second, third and fourth named applicants, the Tribunal is not satisfied that they have a well-founded fear of persecution. In considering all the circumstances of the case, the Tribunal finds that there is not a real chance that the second named, third named and fourth named applicants would face persecution for any reason if they were returned to the United States of America now or in the reasonably foreseeable future. The Tribunal finds that applicant two, three and four do not have a well-founded fear of persecution as per s.5J (1) of the Act and therefore the applicants are not refugees within the meaning of s.5H(1).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36 (2) (b) or (c), and cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Nora Lamont
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

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.
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.
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.
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.
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.
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

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.
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 3630

27 August 2018

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