1608784 (Refugee)

1608784 (Refugee) [2019] AATA 6796 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608784
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:4 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 04 October 2019 at 10:25am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – Nepalese Communist Party – social group – Maoist – claims targeted for no longer supporting communist party – claims assaulted because of Maoist links – unharmed when returned to Nepal – lack of evidence – claims fabricated for visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 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 and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who the Tribunal accepts is a citizen of Nepal, arrived in Australia [in] August 2015 on a [temporary] visa which had been granted on 14 July 2015.
On 7 September 2015 the applicant applied for a protection visa.
The delegate who decided the applicant’s protection visa application did not invite the applicant to an interview. On 26 May 2016 the delegate refused to grant the applicant the protection visa.
On 15 June 2016 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision to his review form.
On 3 October 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of a Nepali interpreter.
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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. In this case, the most recent Department of Foreign Affairs and Trade Country Information Report is that dated 1 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the department file and the Tribunal file.
The applicant told the Tribunal that he completed the protection visa application form with the assistance of a friend who could write in English and Nepali. The applicant provided the information in Nepali and his friend wrote it down for him.
The information contained in the written protection visa application, together with the oral evidence provided by the applicant at hearing, provide the following:
The applicant was born in Rukum in Nepal. He is the eldest of [number children] and both his parents are deceased. His youngest brother is in [another country] and his remaining siblings reside in the same family home in the village where he grew up. His siblings have their own families and the family business is farming. The applicant has been married for 17 years and his wife, together with his [children] who are in their teenage years attending school, also live in the same family home. The applicant had lived in the same home his entire, save for his travel to Qatar. He lived there until he came to Australia.
The applicant has previously travelled to Qatar and he was there between 2010 and 2013. During that time, he worked as a labourer. The Nepalese passport that he provided to the Tribunal was issued in Qatar.
In Australia, he works in [a certain industry] and sends money back to Nepal to support his family.
The applicant claims that he was recruited to be a member of the Nepalese Communist Party which was headed by Pushpa Kamal Dahal, commonly known as Prachanda. He was recruited by the Maoists who went house to house asking for families to provide one sibling to help in the Revolution.
However, after the Nepalese Communist Party went into government, the applicant said that the party only looked after itself and did not look after the people who had been recruited to fight in the Revolution. Accordingly, the applicant decided to no longer follow the party. As a result of no longer supporting the party, the applicant said that he was targeted and it was for this reason he went overseas. He also claimed that his enemies included anti-Monarchist groups. He claimed he sought help from police but without success, and considered moving to Kathmandu but thought his enemies would also find him there. Because he was no longer a member of the Nepalese Communist Party, he told the Tribunal that he was now perceived as being a member of the ‘underground’ Communist Party, which is the Maoist-splinter group, the Netra Bikram Chand (Biplav)-led Communist Party of Nepal.
He claims that he has been assaulted in Nepal and threatened because of his past deeds as a Maoist. He claims to have left Nepal on two occasions because of his fear. He claims that his enemies make threats to his family and ask about the applicant’s whereabouts and have done so since the applicant left for Qatar and again since he left for Australia.
FINDINGS AND REASONS
The issue before the Tribunal is whether the applicant is a ‘refugee’ and if not, whether he is a person who meets the requirements for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who meets either criteria and holds a protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal did not find the applicant to be a persuasive witness. While accepting that different people will necessarily give evidence in different ways, and that the Tribunal should adopt a liberal approach when assessing a witness, the Tribunal found the applicant to be significantly vague in the evidence he provided to the Tribunal. His oral evidence did not contain the sufficient and necessary detail that would be reasonable to expect of a person who was recalling their lived individual experiences.
The applicant did not provide a meaningfully detailed account of how he joined the Maoists, merely saying that he joined the militia when the militia went house to house. He mentioned that he joined because the Maoists did ‘good things’. He said that once the Maoists got into government, they did not follow their principles so he decided not to follow them. He said when he joined the Maoists, he was taken to a jungle, without food and water, and that he attacked a village and a district as part of the Maoists. The Tribunal indicated that it was finding the applicant’s evidence very broad on multiple occasions. To the Tribunal’s thinking, the applicant’s evidence appeared to be a repetition of broad concepts, rather than a narrative with all the detail that usually accompanies a person recounting their past experiences. The Tribunal pressed the applicant for specifics about his experiences in Nepal, but the applicant’s response was vague, only saying that he joined the Maoists to follow their pathway, but that the Maoists then left that pathway and he could not survive, so he went to Qatar. He mentioned that he received threats which he reported to police, but could not get protection so he went to Qatar. Then he realised there was peace in Nepal, so he returned from Qatar to Nepal, but he started to get threats from his enemies over the phone so that is why he went to Australia.
When asked who was actually threatening him, he told the Tribunal it was the ‘people that we threatened before (when he was a Maoist), and intellectual people from the village trying to take revenge. The Tribunal asked the applicant to be more specific because this evidence was not very detailed. The applicant said that he had ‘threatened’ and ‘given a hard time to people’, and those people on one occasion hit him and tried to kill him, but he was found by one of his brothers in the village and taken to hospital. When asked whether there was anything else, he said that was all, and that it was a very hard time for him. The Tribunal said the applicant’s evidence appeared vague which may lead the Tribunal to conclude that the claims were untrue. The applicant told the Tribunal that he did not know how to lie and that what he was telling the Tribunal was the truth. Later on in the hearing, the applicant told the Tribunal that the time he was hit occurred before he left for Qatar in 2010. The Tribunal queried why the applicant would continue to be of any interest to anyone in Nepal given that he had been away for four years. The applicant said that something would definitely happen to him and that the son of the president of the village and Maoists were giving him threats.
The Tribunal queried why the applicant would remain in his village if he had been harmed and was being threatened, noting his evidence that he lived in the same place for the entire time he was in Nepal. He told the Tribunal that it was not possible to relocate to Kathmandu because it belonged to businessmen, and although he thought about doing so, he decided that no place was safe in Nepal. When put to the applicant that it was curious to the Tribunal that his family would remain in the same place in Nepal when his enemies were continually attending upon them to find out where he was, he told the Tribunal that those targeting him had not tortured his family and only tried to get information from them.
The Tribunal put to the applicant that it struggled to understand why he would return to Nepal from Qatar if what he claimed happened to him actually occurred. He told the Tribunal that he had a visa which was finished and he could not extend it. When asked by the Tribunal about whether he did anything to apply for a visa to another country from Qatar so that he did not have return to Nepal, he said that he enquired about going to other countries but did not get any information so that is why he did not do so.
The Tribunal put to the applicant that if he returned to Nepal in 2013 (where he remained in the same village until he left to come to Australia in 2015) and he was not physically harmed again, that would suggest to the Tribunal that he was of little to no interest to anyone back in Nepal at that time. The applicant said that he was not physically harmed by was ‘mentally tortured’ and threatened to be killed. When asked how this was done, the applicant told the Tribunal that ‘they said’ because he was a Maoist they were not going to leave him alone and they were going to kill him. The Tribunal again indicated that it was struggling to accept what the applicant was saying was true because there was no meaningful detail, to which the applicant responded that he was telling the Tribunal the truth.
Given the fact that the applicant and his family had continuously lived in the same house, running a family farming business, with his [children] attending school, the Tribunal put to the applicant that appeared he was of no interest to anyone in Nepal. The applicant responded that his family is asked on a fortnightly basis about when he will return to Nepal. They have been doing so since he came to Australia. The applicant then shifted his evidence and said that this also occurred when he was in Qatar, and that his family was told that the applicant had tortured people and that his days were numbered. The Tribunal then queried why the applicant would return from Qatar and live in the same place if the applicant via his family, were getting these threats while he was in Qatar. The applicant said he thought that everything would be fine, but then his persecutors found out that he had returned to Nepal.
It is not the task of the Tribunal to make the applicant’s case for him. It is up to the applicant to provide the Tribunal with as much detail as possible to enable the Tribunal to make relevant findings of fact. In the case of this applicant, the Tribunal finds the claims vague and devoid of any meaningful detail and, in certain circumstances, illogical.
The applicant was not able to provide the Tribunal with a meaningful narrative of how he came to be involved with the Maoists, other than the fact that the Maoists were going door to door in villages to get one family member to join the cause. He mentioned being in the jungle, but did not give the Tribunal any meaningful evidence about his activity which led him being targeted in response. The only evidence that the applicant provided was that that his persecutors wanted revenge because of the previous threats from the Maoists. The applicant did not provide sufficient evidence as to whether these were threats from him personally in the course of his activity as a Maoist, whether these were threats from other Maoists that he was imputed to be responsible for, the frequency of those threats, or the details of the threats.
The applicant’s evidence about the one instance of actual physical harm that he said occurred prior to 2010 also lacked sufficient detail. The entirety of the applicant evidence is that he was as hit and hospitalised after being found by a brother, and that this occurred after a village meeting. There was no context given by the applicant as could reasonably be expected from a person retelling their story. The applicant did not provide evidence about what the village meeting was about, where it was held, what occurred prior to him being assaulted, and who actually assaulted him. Apart from telling the Tribunal that he went to the police to report what had happened to him without outcome, he gave no detailed evidence about which police station he went to, what was involved in the reporting, and what actually occurred at the police station that resulted in his complaint not proceeding.
The applicant’s evidence about the threats he received over the telephone was equally vague. He gave no meaningful evidence about the frequency of these calls, nor what was actually said to him. Nor did he give any meaningful evidence about how he was imputed to be a supporter of the ‘underground’ Communist Party, other than a bland reference that the Maoists thought this was the case because he was no longer a member of their party. His evidence about how he ceased to be a member of that party was also vague, merely stating that he no longer supported it.
The Tribunal finds the applicant’s evidence about why he returned to Nepal from Qatar illogical. On one hand, he told the Tribunal that he returned because the thought there was peace in Nepal, yet on the other hand, he gave evidence that his family were continuing to be contacted by his oppressors to find out where the applicant was. The Tribunal struggles to reconcile that the applicant could think there was peace in Nepal and return there when his family were being contacted by his persecutors to try and find out where the applicant was, his family being told while the applicant was in Qatar that ‘his days were numbered’.
The Tribunal also finds the applicant’s evidence about whether he made enquiries to obtain a visa to visit another country while he was in Qatar (thus avoiding the need to return to Nepal) particularly troubling. The applicant initially told the Tribunal that there was no environment to apply for a visa to visit another country while he was in Qatar. When the Tribunal indicated that it struggled to accept that this was the case, the applicant then said that he made enquiries to go to other countries while he was in Qatar but he did not get any information about this, and that is why he did not do so. The Tribunal finds the applicant’s evidence shifted about this point when the applicant was challenged and that this demonstrates to the Tribunal that the applicant had a flexible approach to his oral evidence. In addition to that, the applicant did not provide any meaningful detail about what enquiries he made, and only made an assertion that he did so. In the Tribunal’s assessment, if the applicant had made such enquiries, he would have provided detailed evidence about what he did, how he did it, and what the results were.
The Tribunal also struggles to reconcile that the applicant would not have been physically harmed between 2013 (when he returned from Qatar) and 2015 (when he left for Australia) if he had been physically harmed in the past, and continued to be a person of interest to his oppressors (whoever they may be). The applicant’s response to this issue was to refer to the fact that outside reporting reads that there are good things happening in Nepal, but things were very different there, before providing his response about being mentally tortured, which was again vague and lacking meaningful detail. It is reasonable to expect that the applicant, who somehow managed to avoid being physically harmed during that period, despite previous harm, an ongoing interest in him by those seeking to harm him, and continuing to live in the same location, would be able to provide some meaningful evidence other than generalities.

The Tribunal has considered the above concerns in light of the following information.
The Tribunal has regard to the 1 March 2019 Department of Foreign Affairs and Trade Country Information Report on Nepal. In that report, it indicates every year more than 4 million Nepalese travel abroad to engage in employment. Labour migration and remittances accounted for nearly 30 per cent of the Gross Domestic Product of Nepal. Migration acts as a significant driver for many millions of Nepalese to leave the country every year seeking economic opportunity (at 2.29-2.31). In that same report, it notes that migrant workers may also work in countries such as Qatar.
The Tribunal put to the applicant the information and that it may suggest that his travel to Qatar and Australia was not because of any fear, but to explore economic opportunities and financially support his family in Nepal. The applicant denied that this was the case, and said that he left Nepal to save his life but needed to work to support himself and his family.
The Tribunal has considered this but, in combination with the Tribunal’s concerns about the vague nature of the applicant’s evidence about his past harm in Nepal, the Tribunal is willing to place significant weight on this country information, leading the Tribunal to find that the applicant travelled to Qatar and Australia for economic reasons, and not because of any reason that would give rise to a protection obligation in Australia.
For completeness, the Tribunal had regard to the 1 March 2019 Department of Foreign Affairs and Trade Country Information Report on Nepal which deals with the current political situation in that country.
The Tribunal accepts that Nepal has historically been a politically unstable country due to the 1996 civil war where the Communist Party began a nationwide insurgency that lead to a ten year civil war, resulting in many deaths. The report notes that political affiliation was the cause of instability during the conflict and in the years that followed. However, the report notes that Nepal has enjoyed several years of political stability, with a lively political environment providing an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active in generally respected, with an assessment being made that the risk of a return to widespread violence being low (at 3.38 to 3.41).
The Tribunal put this information to the applicant with a suggestion that the political environment in Nepal was different to the previous environment and invited comment. However, given the circumstances of the claims made in the course of the oral evidence at the Tribunal hearing (as opposed to the written claims that, due to their broad nature, could have been interpreted as being merely a political supporter of the Maoist groups and engaged in political activity), there is little weight that the Tribunal can place on this information. This is because the applicant’s claims are not that he was merely a supporter (or previous supporter) of a Maoist party who engaged in political activity as part of a political discourse, but that he was a Maoist who engaged in what could be adequately described as the activity of a Maoist combatant. His risk comes from this past activity as a Maoist combatant and his identification as a supporter of the ‘underground’ Communist Party in Nepal.
When considering the totality of the evidence before the Tribunal, the Tribunal is not satisfied that the applicant was a Member of the Nepalese Communist Party, that he was recruited to act as a Maoist, that he or his family have ever been threatened or harmed because of his claimed or imputed association with any Maoist movements in Nepal. The Tribunal is satisfied that the applicant’s claims for protection were fabricated as a means to remain in Australia for reasons not connected to Australia’s protection obligations.
It follows that the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Nepal because of his race, religion, nationality membership of a particular social group or political opinion, nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Nepal from Australia, he will face significant harm now or in the reasonably foreseeable future.
CONCLUSION
Refugee
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).
Complementary protection
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). For the same 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)(aa).
Member of the same family unit
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.
Nathan Goetz
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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 6796

4 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction