1609507 (Refugee)

1609507 (Refugee) [2019] AATA 6742 (21 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609507
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:21 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 October 2019 at 10:30am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – Nepali Congress student leader – fear of attacks by Maoists – fear of killing – Nepal Student’s Union member – reports to police about Maoist threats – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration 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] November 2008 on a student visa. He held a number of student visas with his most recent student visa being in effect until 12 September 2015.
On 10 September 2015 the applicant applied for a protection visa. The applicant was invited for an interview with the delegate on 8 June 2016 but he did not attend. On 9 June 2016 the delegate refused to grant the applicant the protection visa.
The applicant lodged a request to review the decision with the Tribunal on 27 June 2016.
The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments related to his claims. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee and if not, whether he meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criteria for complementary protection and holds a protection visa.
The Tribunal has considered the material on the department file, the material that is on the Tribunal file and the evidence and documents produced at the hearing.
Written protection visa application
The applicant provided brief responses in his written protection visa application form. When asked why he left Nepal, the applicant wrote that he left Nepal to study and also because he received a death threat from the Maoist political party. He wrote that if he were to return to Nepal, he feared that he would be kidnapped and would eventually be killed as he was a Nepali Congress student leader. He claimed that he experienced harm in Nepal by receiving a death threat. He wrote that he made a complaint to Nepali police however the threats were still active. He wrote that he tried to move to another city but Maoist rebels were everywhere and he did not find a safe place. He wrote that he would not be able to relocate within Nepal because Maoist rebels are a highly organised group and they are the main political power in Nepal. It would not be safe for him to relocate anywhere within Nepal.
In the documents section of the form, he indicated that he was including a police entry from Nepali police, and said that he would provide ‘paper cuttings’ and his ‘father’s medicals’ at a later time. The police entry in the department file concerns two documents. The first document could be described as a character clearance certificate by the Nepalese police which was provided in English. This was dated in August 2008 and presumably would have been included in the applicant’s student visa application. The second document was provided in Nepali with an English translation. The letter was dated [in] September 2015 and the English translation certified on the same day in Nepal. The letter was under the header of the [specified police branch] and noted that the applicant put forward to the police a complaint [in] February 2008 asking for police to protect his life and maintain law and order due to threats to kill being made against the applicant. The letter identified that the threats were due to a political dispute with a sister organisation of the Communist Party of Nepal.
Non-Disclosure Certificate – s.438 of the Act
The department file contains a certificate and notification regarding the disclosure of information under s.438 of the Act. The certification claimed that disclosure of the information contained in folio 68 of the department file would be contrary to the public interest because it referred to internal working documents and business affairs. The Tribunal does not accept that this certificate is valid. The citing of internal working documents is not a sufficient basis for public interest immunity either at common law or under statute. The information that the department sought to prohibit disclosure related to a checklist that the department uses to identify applicants. The material neither helps nor hinders the applicant’s claims for protection and is not relevant to determining whether Australia owes the applicant protection.
Subsequent to the delegate decision being refused and the review application being filed, the applicant submitted further documentation in support of his claims. These documents are as follows:
Certified English translation dated 17 July 2016 of the applicant’s Nepal Student’s Union membership card which was dated [in] May 2006. The applicant told the Tribunal that the original card remained in Nepal.
Letter from [specified police branch] in Nepali dated [in] September 2015 which confirmed that the applicant had made a complaint to police [in] February 2008. This was accompanied by an English translation certified on 17 September 2015. This was a duplicate of the letter in Nepali that had been provided with the protection visa application, save for the English copy with certification (the one provided previously was certified as [in] September 2015). The applicant provided the hardcopy of these documents to the Tribunal at the hearing on 17 October 2019.
Letter from Communist Party of Nepal – Maoist dated [in] February 2008 with a heading ‘Relating to do contact’ which was directed to the applicant. It stated that the applicant had engaged in activities threatening their youth wing and requesting that the applicant make contact with them, failing which damages may occur to his life and his property. This was accompanied by an English translation certified on 17 September 2015. The applicant provided the hardcopy of these documents to the Tribunal at the hearing on 17 October 2019.
Letter from the Communist Party of Nepal – Maoist dated [in] May 2008 with a heading ‘Last warning’ which was directed to the applicant. It stated that the applicant had not assisted their cause and had not quit his political party, so he was requested to visit their office, failing which physical action including assassination may occur. This was accompanied by an English translation certified on 17 July 2016. The applicant provided the hardcopy of these documents to the Tribunal at the hearing on 17 October 2019.
Extract of a media report from the [newspaper 1] newspaper of Nepal which reported that the applicant had been targeted by Maoists since the local election held on 26 January 2007, his family had been extorted and that the Maoists were forcing the applicant to join the Maoist party. This was provided as an English translation certified on 17 September 2015, with the applicant providing a photocopy of the Nepali article at the day of the hearing on 18 October 2019.
Evidence given to the Tribunal at hearing
The applicant told the Tribunal about his family in Nepal. He is the eldest of [his siblings], one of which is in Australia, living with the applicant, and has just finished his studies: [age] year old [Brother 1]. [Another sibling] is a student in Nepal and lives with the applicant’s parents: [age range] year old [name]. The applicant’s father is in poor health with diabetes. Before his father was ill, he used to run a family [business]. His mother is a housewife. The family meet their living expenses from the applicant’s father’s savings from his work abroad in [specified countries], and the applicant and his [siblings] also contribute to the living expenses. The applicant provided on the day of the hearing a letter from [a hospital] of Nepal dated 19 September 2019 which stated that the applicant’s father suffers from diabetes and is on insulin treatment. The Tribunal accepts that the applicant’s father suffers diabetes.
The applicant is not currently working. He has been unemployed for about 6 weeks. He was previously working in a [business] for a couple of years. He left his job because he found it too stressful but is looking for another job. He was having difficulty obtaining new employment because his passport was expired and had no other form of identification which he said he needed to secure a job.
The applicant told the Tribunal that he knew he needed protection in Australia from the first day of his arrival in November 2008. He found out about protection visas around 2014 from media reports. He lodged his protection visa application when his student visa was expiring. When he arrived in Australia, his plan was to study and pursue further studies. Although a student visa is a temporary visa and he acknowledged that there was an expectation that he would return to Nepal, the applicant said that the situation in Nepal prevented him from doing so. Despite being aware of protection visas since 2014, the applicant did not apply for this type of visa because he was on a student visa.
When the applicant applied for his further student visa on 25 July 2012, he used the assistance of a migration agent. He did not tell the migration agent about his concerns about returning to Nepal because he was ashamed and it was a personal matter.
The applicant told the Tribunal about his difficulties in Nepal. He was a member of Nepali Bidhyarthi Sangh, which is a youth wing associated with the Nepali Congress political party. During student elections at his first year at [his named] Campus in [a named town], the applicant was giving a political speech when more than 10 members of the All Nepal Independent Student Union, which is the youth wing of the Communist Party of Nepal-Maoist, attacked him. He was not injured but the speech was disrupted with chairs thrown. The applicant fled and never returned to his studies. This incident happened approximately 7 or 8 months before he left Nepal. That was the only time the applicant was physically threatened, and the other threats were verbally made to both the applicant and his father.
The applicant told the Tribunal that he left the campus and went to live in [a named town] which was a two or three hour drive from his family home in Kathamandu. He lived there for 7 to 10 days with a friend. He then returned to the family home in Kathmandu for 2 or 3 days and lodged a police report about what had occurred. After the filing of the police report, the applicant then went to live at his uncle’s home in [another town], which was about an hour’s drive from the family home. The applicant said that he lived at his uncle’s place because he was getting threats constantly after he lodged the police report. He remained at his uncle’s house for 6 days. After that, he returned to Kathmandu and stayed with a friend in [Town 1]. He told the Tribunal that he stayed at this location for 2 or 3 months until he left Nepal for Australia.
The applicant claimed that he lodged the police report because of what had occurred at his university, and because he received a threatening letter from the Maoists. This letter had been received by his father who told the applicant about it. The applicant said that when he went to the police station with his father, he obtained a copy of the police report and showed them the Maoist letter that his father had received. The applicant told the Tribunal that he did not bring a copy of the police report and the Maoist letter with him to Australia because when he left Nepal he did not think that he would need them in Australia.
The applicant told the Tribunal that he received a second threatening letter from the Maoists. He became aware of this letter when he was in Australia. His father had received the letter and forwarded it the applicant’s uncle who forwarded the letter to him and he received that letter in Australia.
Regarding the documents that the applicant provided in support of his protection claims, the applicant told the Tribunal that about 2 or 3 weeks after he applied for protection in September 2015, he received documents with their English translations from his uncle in Nepal. In total his uncle received documents in two or three lots.
The first bundle of documents included a copy of the police report that he made in 2008, together with the two letters from the Maoists. That was the bundle that the applicant received.
The applicant then was sent the extract from the [newspaper 1] with the English translation, together with the English extract of his Nepal Student Union membership card. In regards to the [newspaper 1] publication, the applicant told the Tribunal that he did not see this published in Nepal and only became aware of it when a friend mentioned to him that the applicant was reported on in the newspaper.
The applicant told the Tribunal that he would still be at risk in Nepal because the Maoists were now in government. He said he had no plans to go back to Nepal, but if he had to, his only future plan would be to run a small business.
FINDINGS AND REASONS
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 credible witness and it has significant concerns about relying upon anything that the applicant has advanced in support of his protection visa application.
Inconsistent evidence about applicant’s residence in Nepal
First, the Tribunal struggles to accept that the applicant has been truthful about his previous residential history in Nepal. In his written application, the applicant disclosed one address being [in Town 2 in] Kathmandu. He declared that he lived at that address from [year] until his departure from Nepal. He also wrote that he tried to move to another city but Maoists rebels were everywhere and he could not find a safe place to live. At the start of the hearing, when the Tribunal asked the applicant about his family background, he told the Tribunal that his parents were living in the family home in Kathmandu, in the same house he grew up in. The applicant told the Tribunal that this was the address he lived in prior to coming to Australia, and told the Tribunal that he had lived in that home since birth.
The Tribunal raised with the applicant the concern it had with the evidence he had provided because it appeared to suggest that the applicant was not telling the truth. The applicant responded that he thought the Tribunal was asking about his hometown, and that he answered that he always resided in his hometown. The different homes he stayed in were considered part of his hometown. The Tribunal is not persuaded by this argument. In the Tribunal’s assessment, had the applicant relocated the three times he claimed, he would have disclosed those relocations in his written application, and not suggested that he tried to move but could not find any safe place. Further, the Tribunals’ questioning at the start of the hearing was asking about his family home, whether anyone else lived in the home, and how long the applicant lived there. The applicant told the Tribunal that he lived in the family home until he left Nepal, which is the complete opposite to what he said later in the hearing. If the applicant was being truthful about his residential movements, it would be reasonable to expect the applicant to tell the Tribunal when it was asking about his residential history at the start of the hearing, that he lived in [Town 1] for 2 or 3 months before he departed, not in the family home in Kathamandu. The Tribunal does not accept that the applicant’s uncle’s house two or three hours away from the family home, a friend’s house an hour away, and another friend’s home in [Town 1] (which is close to the Indian border) could be considered part of the applicant’s hometown of [Town 2] which is located in Kathmandu.
Delay in the applicant lodging his protection visa application

Second, the Tribunal struggles to accept that the applicant has a reasonable explanation for the delay in lodging his protection visa in 2015 when he arrived in Australia in 2008. It was the applicant’s evidence that he realised that he could not return to Nepal on the day he arrived in Australia because of what had occurred there. Yet, despite this, the applicant did not do anything about lodging a protection visa until shortly before his student visa was to expire in September 2015. The applicant’s evidence that he did not lodge a protection visa because he was on a student visa is not persuasive. As put to the applicant, student visas are temporary and there is an expectation that the holder of that visa will return to their country of nationality at the completion of their studies. There is no guarantee that a person who held a student visa will be allowed to remain in Australia. Given this, it is curious to the Tribunal that the applicant would arrive in Australia on a temporary visa and apply for a further student visa instead of exploring protection visas as a viable option to remain in Australia. After all, the applicant claims a fear of harm and death if he returns to Nepal and it would be in his interest to look at options that would guarantee his ability to remain in Australia permanently. The applicant told the Tribunal that he had planned to pursue further studies and seek further opportunities in Australia when asked about his plan in coming to Australia, yet knew that he could not return to Nepal from day one of his arrival. Knowing this, it would be reasonable to expect the applicant to do something to ensure, as far as possible, he would not be returned to Nepal.
The Tribunal scientism about the delay is further compounded by the applicant’s evidence that he had engaged a migration agent in 2012 to assist him with lodging another student visa application and had not disclosed to the agent that he could not return to Nepal. To the Tribunal’s way of thinking, this would have been an opportune time for the applicant to seek assistance to remain in Australia because of his safety concerns. He did not do so. Further, if the applicant became aware of protection visas in 2014, he still delayed lodging his application until September 2015. These factors, in the Tribunal’s view, are not consistent with the applicant’s claimed fear of harm.
Failure to provide details of siblings in written protection visa form
Third, the Tribunal was also concerned that the applicant had not disclosed in his written protection visa application that he had siblings. At Question 43 of the form, he was asked to give details of family members who are in Australia or overseas, including partners, children, parents and siblings. The applicant only included the names of his father and mother. At the Tribunal hearing, the applicant disclosed that he had two [siblings], one of which was in Australia and had arrived here subsequently to the applicant. There is an expectation that the applicant would provide full details of his family in his protection form and his failure to do so suggested to the Tribunal that the applicant was prepared to be less than frank in the evidence he provided to the department. The failure to include this information may have suggested to the Tribunal that the applicant may have had plans for his siblings to travel to Australia, which would have been jeopardised if the applicant had declared them in his application because this would give rise to concerns about his siblings willingness to return to Nepal as the applicant had lodged a protection visa.
The Tribunal put to the applicant that it was concerned about his failure to declare his siblings in his application, and that it suggested that he may not have an honest approach to his migration matters. The applicant denied that this was the case, said that he was not aware that he had to mention his siblings and that his failure to do so was a mistake, and he had no assistance in completing the form. The Tribunal is not persuaded by this response, because the form, which the applicant was able to complete himself, clearly requires the details of all family members to be included, and there is no reasonable explanation for why the applicant would include his parents, and not his siblings. The Tribunal suspects that the applicant did this deliberately so as to not hamper future travel plans for his siblings and this indicates to the Tribunal that the applicant has a fluid approach to giving truthful evidence.
Production of documents
Fourth, the Tribunal has real difficulty accepting that the documents that the applicant produced are genuine, given the evidence that the applicant provided about how they were obtained.
The applicant told the Tribunal that he went to the police station to lodge a complaint. According to the material, the complaint was made in February 2008. The applicant said that at the police station, he was provided a copy of this police report. He left this report at his uncle’s house, together with the first Maoist letter that he had received. The applicant told the Tribunal that a copy of this police report, together with the two Maoist letters, were sent to him with the English translations two or three weeks after he lodged his protection visa application in September 2015.
There are significant problems with this evidence. The supposed copy of the police report that the applicant had obtained from the police the day he made his report was not in fact a copy of the police report made that day, but in fact a letter dated September 2015 which purported to confirm that the applicant had earlier lodged a police report 7 years prior [in] February 2008. Given the applicant’s evidence to the Tribunal that the document that was supplied by his uncle was the applicant’s copy of the police report he obtained [in] February 2008, the Tribunal has significant concerns that the applicant was not being truthful about the documents he produced. Further, the applicant told the Tribunal that he had received the two Maoist letters from his uncle together with the English translations two or three weeks after he lodged his protection visa application, yet the second letter from the Maoists is certified as being translated in July 2016, well after the applicant claims he received it. Corroborative documents to support a claim are important. The Tribunal does not find it reasonable that the applicant would not be able to give evidence that was logical with the production of those documents. When the Tribunal considers these matters, together with the delay in the production of the documents (noting that the applicant received these documents two or three weeks after lodging the protection visa, but failed to submit them to the department in the 9 months between lodging the protection visa application and the delegate making a decision), the Tribunal is left with a great degree of unease about the genuineness of the documents that the applicant has provided in support of his application.
The Tribunal notes that the applicant did provide a copy of the September 2015 letter from Nepal police with his original written protection application, together with an English translation. The applicant’s evidence to the Tribunal about the provision of documentation then becomes ever more curious, noting that his evidence was that his uncle provided the police report to him by courier and that he received this two or three weeks after he lodged his protection visa application. There is nothing before the Tribunal to suggest that documents, such as those produced by the applicant, cannot be forged, either in Australia or in Nepal.
The Tribunal put its concerns to the applicant about the genuineness of the documents he provided to the Tribunal due to the timing of the production and date of certification regarding the Maoist letter, and the fact that what the applicant told the Tribunal that he was providing a copy of the police report he received in February 2008, when in fact the document he provided was another document from September 2015 referring to that earlier report. The applicant’s response was that the documents were genuine and that it took time for the document to be produced. He told the Tribunal that he did not have a lawyer and did not know what type of documents he needed to submit. The Tribunal is not persuaded by the applicant’s response to its concerns. In the Tribunal’s view, the applicant provided contradictory evidence about what the police report documentation was, how this was obtained, and illogical evidence about the second Maoist letter and English translation being received by the applicant before the certification had actually occurred in Nepal. If the applicant is prepared to give that type of evidence about some of his documentation, then the Tribunal has real doubt that he is able to give credible evidence about the other documentation he has submitted. The Tribunal therefore places no weight on the documents that the applicant has provided in an attempt to corroborate his claims.
Credibility Finding
Based on the concerns above, the Tribunal has ultimately determined that the applicant is not a credible witness.
The accumulation of concerns about the delay in seeking protection, the inconsistent evidence about where the applicant resided in Nepal prior to coming to Australia, the delay and circumstances of the production of documents that the applicant sought to use to corroborate his claims, and the fact that the applicant did not disclose his siblings in his protection visa application leave the Tribunal in the position where it cannot be satisfied that the applicant is a witness of truth. When looking at the totality of the Tribunal’s concerns, against the migration history of the applicant, the Tribunal is satisfied that the applicant lodged a protection visa to remain in Australia and has fabricated his claims and documents in an attempt to remain in Australia for reasons not connected with Australia’s protection obligations.
It follows that the Tribunal is not satisfied that the applicant was a member of the Nepali Student Union, that he was targeted when he gave a speech by Maoist supporters, or any other occasion, that he relocated within Nepal because of fear of harm, that he or his family were ever threatened by Maoist supporters, that he made any report to police about the threats, that the applicant was ever the subject of a media report about those threats, or that the applicant left Nepal because of that claimed harm or fear of future harm if he were to remain in Nepal. The Tribunal is not satisfied that the applicant engaged in any political activity in Nepal. The Tribunal is satisfied that the applicant fabricated his claims for protection and produced documents that are not genuine in an attempt to corroborate his claims for protection.
The Tribunal is not satisfied that the applicant has been harmed in the past, and is not satisfied that he will be harmed in the future. If the applicant were to return to Nepal, the Tribunal is not satisfied that there will be a real risk of serious harm or significant harm to the applicant, now or in the reasonably foreseeable future.
CONCLUSION
Refugee
For the reasons given above, the Tribunal 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
The applicant has not claimed to me a member of the same family unit as a person who is a refugee or meets the criteria for complementary protection and holds a protection visa. There is nothing before the Tribunal to suggest 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 6742

21 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction