1609662 (Refugee)

1609662 (Refugee) [2019] AATA 6818 (16 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609662
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:16 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 October 2019 at 10:15am

CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – Nepali Congress Party – feared harm for refusing to join Maoists – victim of harassment – credibility issues – inconsistent evidence – fabricated claims – 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] November 2015 on a [temporary] visa that had been granted on 23 October 2015.
On 12 January 2016 the applicant applied for a protection visa.
On 31 May 2016 the delegate refused to grant the applicant the protection visa. The applicant had not been invited for an interview to discuss his claims.
On 28 June 2016 the applicant applied to the Tribunal for a review of the refusal decision.
The applicant appeared before the Tribunal on 15 October 2019 to give evidence and present arguments. The hearing was conducted with the assistance of a Nepali interpreter. Although the applicant was represented by a registered migration agent , [the] applicant appeared by himself at the hearing.
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 or a person who 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 applicant told the Tribunal at the hearing that he completed the written protection visa application with the assistance of his current migration agent. Curiously, the form indicated that the applicant had completed the form without any assistance. However, given the applicant cannot read and write English, the Tribunal accepts that his migration agent assisted the applicant with this form. The applicant told the Tribunal that his agent asked him the questions on the form and the applicant had responded to those questions.
The applicant is a from [District 1] in Nepal. The form indicated that [up] to November 2015 he resided in [named municipality] in [District 1]. At the hearing, he said this area is now considered to be part of [another municipality]. At the hearing, the applicant told the Tribunal that he had lived at the same address in the same house his entire life. His father, mother, one brother, the applicant’s [wife] and [children] all live in the same family home.
His protection claims were provided in response to questions in the protection visa form (Questions 88 to 97), and also in a statement that he provided with that form. He claimed that he left Nepal to ‘Save his life from Maoists’; he feared that if he returned to Nepal ‘They will kill me’; he experienced harm in Nepal with ‘Threating to kill, donation and asking to join their party’; he did not seek help within Nepal because ‘They told me if I seek help they will kill me’; he did not move or try to move to another part of Nepal to seek safety because his ‘Family did not give permission’; he thought he would be harmed/mistreated if he returned to Nepal because ‘I am known to them. They will find me and my family and harm me’; he did not think that the authorities of Nepal could and would protect him if he returned because ‘In my district Government cannot do much’; he did not think that he would be able to relocate within Nepal because ‘Everyone in his family was living in the same place’.
His written statement, which was provided as an English translation by a NAATI accredited translator, detailed his family and business in Nepal.
The statement claimed that the applicant was working for the Nepali Congress Party in his village. He had done many ‘good jobs’ for the party and that he and his party had done many noble activities for society. Due to his good jobs and contributions, the applicant was respected and considered to be a good citizen. As time passed by, he received an offer from the Maoist party to join them. He refused the offer because he did not like the abusive, unfair, corruptive and inharmonious ethical divisional destructive works. The applicant was threatened by the Maoists to either join their party or he would be killed. He was threatened between 2 and four times and some of the members physically mishandled him on many occasions. He was also handed a letter demanding that he join the party but he kept denying this offer. He wrote that he reported this to the Nepali Congress Party office but was told that it could not give him security or help. He was told that he would need to save his life himself. As it was impossible for the applicant to do so in Nepal, he fled to Australia. With the help of a broker, and a payment of money, he came to Australia.
Subsequent to the delegate decision and his review application being lodged, the applicant provided the following documentation:
The English translation of a letter from an author who identified himself as [Mr A] who was [Senior Official 1] of the Nepali Congress District Office in [District 1]. This letter was dated [in] March 2016 with the certification of the English translation dated in May 2016. The letter detailed that the applicant was an active member of the Nepali Congress Party and the Nepal Tarun Dal (the youth wing of the Nepali Congress Party). The letter spoke of the invaluable contribution made by the applicant to the organisation which helped secure his membership of the party. The letter went on to read that the applicant’s honesty and sincerity towards the party resulted in him being given responsibility as part of a team to organise the election campaign for the party in the Constitution Assembly election on 23 November 2013. During this period, his performance was outstanding. The letter went on to state that the applicant’s whole family were active members and used to participate in every programme that was organised by the party. The letter noted that the Maoists had asked the applicant to join them time and again, but the applicant refused this proposal and condemned the Maoists because of their violent and non-social acts. This resulted in the Maoists beating the applicant time and again, threatening to kill him and torturing him physically and mentally. As a consequence, the applicant was forced to leave Nepal.
The English translation of a document identified as the applicant’s identity card for the District Working Committee – [District 1] of the Nepali Congress with an effective date of 18 April 2011 and noted he was an active member.
The applicant resubmitted the same statement that accompanied his written protection visa application.
The Tribunal notes the written submission of the migration agent dated 30 September 2019 which was provided prior to the hearing being conducted. The submission goes to the current political situation in Nepal and reiterates the applicant’s claims for protection.
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 persuasive witness. The Tribunal recognises that giving evidence through an interpreter and giving oral evidence may be stressful. The Tribunal acknowledges that it is not as ideal as an applicant being able to give evidence and be understood in his or her native tongue. However, the Tribunal found the applicant’s evidence about the past harm he claims to have suffered in Nepal to be vague and lacking in detail. When asked why the applicant could not return to Nepal, the applicant said that it was because he was affiliated with the Nepali Congress Party and that Maoists were calling him. He said the Maoists were coming after him. He was sked what he meant by that, and the applicant said that the Maoists were coming to the family home and asking his wife for donations and if he was to return to Nepal, he would not be able to leave the home. He told the Tribunal that he had gone through ‘situations’ in the past.
The Tribunal asked the applicant to tell it what he had been through in the past in Nepal, and asked him to be as specific as possible. The applicant responded that he was approached and asked for donations, forced to join the party, threatened to be killed and assaulted 2 to 4 times because he did not join the party. The Tribunal indicated that it would like the applicant to talk the Tribunal through all the specific instances. The applicant then repeated that he had been assaulted 2 to 4 times, asked for donations and had been tortured because he refused to join the party. The Tribunal noted that it was a repetition of what the applicant had previously said, but said in a different way. The Tribunal asked the applicant to tell the Tribunal specific details, because the Tribunal wanted to know the applicant’s story. The applicant responded that the Maoists were approaching his home, threatening him and burned his house down asking for money, threatened to kill him, and that these things happened on a daily basis.
The Tribunal really struggled with the applicant’s evidence about what happened to him in Nepal. For instance, there was no meaningful detail provided about the specifics of what happened to him, where it happened, when it happened, and what words constituted the threats. There was an absence of what the Tribunal would consider to be the ordinary detail of a person recounting an event that they had actually experienced. In the Tribunal’s assessment, the applicant repeated what could be described as talking points, such as being threatened by Maoists, being assaulted by Maoists, and being asked to join the Maoists. He did not provide any meaningful detail about those events, despite being asked for specifics on a number of occasions. It is not the Tribunal’s job to make the applicant’s claims for him, and it is reasonable to expect that the applicant, who claims to have experienced these events, would be able to do more than to repeat that he had been assaulted, threatened, asked for donations and asked to join the Maoists. The Tribunal was troubled by the fact that the applicant could not provide any meaningful detail about the events he claimed to have experienced in Nepal.
The Tribunal notes that it was at the Tribunal hearing that the applicant claimed for the first time that his house had been burned down by the Maoists. Although the applicant was vague about the circumstances of the house being burned down, providing no information such as how or when this occurred, the Tribunal asked him whether he relocated elsewhere given that the house had been seemingly destroyed. The applicant told the Tribunal that he had two houses. One was built by his father and one was built by his grandfather. Those who houses were only 2 or 3 metres apart. The applicant indicated that it was the house that was built by his grandfather that had been burned down. The Tribunal queried why the Maoists would burn down his grandfather’s house instead of his father’s house. The applicant said the Maoists burned down his grandfather’s house because his grandfather had already passed away and the applicant used to reside in that house. The Tribunal put to the applicant that it appeared he was shifting his evidence because early in the Tribunal hearing, the applicant told the Tribunal that for his entire life he lived in the same family home. In response, the applicant said that the house were located in the same place and were regarded as a single house and that he had not changed his evidence.
The Tribunal was also concerned about the evidence the applicant gave about the documents he submitted in support of his protection application.
Regarding the Nepali Congress identity card, the applicant told the Tribunal that he had brought this with him when he travelled from Nepal to Australia. Given he had earlier told the Tribunal that his purpose of travelling to Australia was to claim protection here, it was curious to the Tribunal that the applicant would not have provided that identity card with his application for protection. It was on his person and was clearly readily available to the applicant. Further, he told the Tribunal that his present migration agent assisted him with the written protection visa application. It was very odd, given these circumstances, that the identity card was not provided to the delegate, and was only provided to the Tribunal.
Regarding the letter from the [Senior Official 1] of the Nepali Congress District Office, the Tribunal asked the applicant questions about this document without identifying its name or the author of it, and referred to it as a support letter. As the applicant had only provided three documents separate to the written protection visa application (being his statement, Nepali Congress identity card, and this support letter) the Tribunal believed that this document would be easily identifiable to the applicant. The Tribunal wanted to test the veracity of the document with reference to what the applicant could tell the Tribunal about its production, content and author.
The applicant indicated that he could not remember providing any other document other than the two that had already been discussed. The applicant stated that he remembered submitting his identity card and his written statement, but could not remember providing any other document as it was ‘four years ago’. The Tribunal approached the matter in another way, and asked the Tribunal whether he contacted anyone in Nepal to obtain documentation. He then said that he might have done so about the card provided by the party. When asked who he contacted, he said he contacted his wife who then went to a BTech computer house and she sent a document to him by email, however he could not remember what the document was at the moment. The applicant was asked whether the document was in English and Nepali, or only in Nepali or English. He told the Tribunal that he thought the document was sent in English and Nepali but that he may have got it translated in Australia into English. When asked why he would do that if the document was already in English, then appeared to changed his evidence and said that it was sent to him and he got it translated, before indicating that he was confused. The Tribunal asked when his wife sent him this document, and he said it was either June or December 2015, but then said he obtained this document two months after he arrived in Australia. Finally, the applicant said that the document was a relationship certificate for his wife and children that his wife had sent him (which the Tribunal does not have).
The applicant was asked whether he knew a person by the name of [Mr A] and he indicated he did not.
The Tribunal indicated that it was struggling to believe that the applicant would not know the content of the document that he provided in support of his protection visa application. Even with the passage of time, if the applicant was involved in the Nepali Congress Party as he claimed, he would be able to tell the Tribunal about the single document that he had provided which appeared to corroborate his claims. He could provide the Tribunal no evidence about this document, and it appeared to the Tribunal that he was being deliberately evasive about the production of it. In the absence of evidence from the applicant about how this document came to be produced, the Tribunal had real concerns about its genuineness.
The concerns that about the genuineness of the support letter was compounded by the oral evidence that the applicant gave about his involvement with the Nepali Congress Party. The Tribunal noted to the applicant that in his statement, he had not put down that he was involved in the youth wing of the Nepali Congress Party and confirmed with the applicant that he had only been involved in the Nepali Congress Party, and not its youth wing the Nepal Tarun Dal. The applicant told the Tribunal that he became involved with Nepali Congress Party about 7 or 8 years ago, and he told the Tribunal that you needed to be above 18 years of age to join that party. The Tribunal then put to the applicant its further concern about the genuineness of the support letter, because that letter stated that the applicant had also been an active member of Nepal Tarun Dal as well. In response, the applicant said that he would not like to comment, but thanked the Tribunal for the opportunity to give evidence oral evidence at the hearing.

The Tribunal also put to the Tribunal its concern about a couple of other inconsistencies that emerged between the applicant’s’ written and oral evidence. The Tribunal acknowledges that mere inconsistencies between evidence do not mean that the applicant is not a credible witness. The Tribunal also acknowledges that inconsistencies about matters not directly related to an applicant’s claims may sometimes be of limited assistance when assessing the credibility of an applicant. However, in the circumstances of this case, with the other concerns that the Tribunal has with the evidence previously discussed, the Tribunal has become very concerned with the fact that the applicant provided inconsistent evidence about something as basic as whether he had a brother in Nepal, and what his father presently (at the time he wrote his statement) did for a living.
In his written statement, which he submitted as part of his protection visa application signed in January 2016, the applicant wrote that he was the ‘only son’ of his parents. In his oral evidence to the Tribunal, he disclosed that he had a brother aged in his 20s who lived in the family home and was attending school. In his written statement, the applicant wrote that his father was ‘presently working’ [for his employer]. In his oral evidence to the Tribunal, he said that his father had retired [from his employer] who retired around 7 or 8 years ago. He noted that his father had started working in the family [business] after his retirement from [his employer]. The applicant had started the business 3 years before he came to Australia.
In response to these inconsistencies, the applicant responded as follows. In regards to him writing in his statement that he was the ‘only son’ of his parents, but providing inconsistent oral evidence, he told the Tribunal that he made a mistake in his written statement because he was stressed. He told the Tribunal that his oral evidence was the truth. In relation to whether his father was presently working [at] the time of his statement in January 2016, the applicant again responded that whatever he told the Tribunal in his oral evidence was the truth. The Tribunal struggles to understand how the applicant could provide inconsistent evidence about something as basic as whether he was the only son, and his father’s present employment situation. In the Tribunal’s view, this inconsistency suggests that someone other than the applicant was responsible for the preparation of the written protection visa application and its claims therein.
When the Tribunal puts its concerns together, it comes to the conclusion that the applicant is not a credible witness. The Tribunal is satisfied that the applicant or someone else has provided the claims for protection and that they have been fabricated. The Tribunal put to the applicant the concerns that it had about the fact that the applicant could not tell the Tribunal anything about the support letter he had produced to the Tribunal. This indicated that the applicant was not a truthful witness because in the Tribunal’s view, it is not reasonable to expect that the applicant would not be able to tell the Tribunal about a document that he had produced to the Tribunal. The applicant responded to the Tribunal’s concern about this by saying that he was provided a document in Nepali which was translated into English but that he was unaware of it. The Tribunal then put to the applicant that if he obtained a document in Nepali he would surely know what the document was about. The applicant then told the Tribunal that he was unsure about the document that was produced. The applicant appeared to be deliberately evasive about this document. To the Tribunal’s way of thinking, if the applicant was a witness of truth, he would be able to explain what the document was, and how it was obtained. Further, the fact that the applicant’s oral evidence about whether he was involved in the youth wing of the Nepali Congress Party contradicted a letter that the applicant produced claiming that he was involved in the youth wing, leads the Tribunal to be satisfied that the support letter from[Mr A] was fabricated for the purpose of claiming protection in Australia and that its contents are not true.
The Tribunal is also not satisfied that the Nepali Congress identity card is genuine. The Tribunal considers its other concerns with the applicant’s evidence when making this determination, but also considers the timing of the production of the identity card when considering whether this document in genuine. The Tribunal cannot accept that the applicant, who claims he was assisted by his present migration agent in completing his written protection visa form, and had his Nepali Congress card with him in Australia when he did so, would not include that documentation in his application. It would seem very relevant to whether the applicant was indeed a member of the Nepali Congress as he claimed. The Tribunal put to the applicant its concern about the fact that the identity card had not been included in his protection visa application. The applicant said that the card was a legitimate document and that he had not been asked to produce it. It was only later that the migration agent asked for this document. The Tribunal does not accept that this is the case, as it would be incredulous that the applicant would not produce this card himself to his migration agent, even if the migration agent did not ask such a basic question as whether the applicant had any documentary evidence to support his claims. The Tribunal is satisfied that the identity card is not genuine and was only produced in an attempt to lend credibility to the applicant’s claims.
The Tribunal then considers the applicant’s response to the Tribunal’s concern that he had never previously claimed that his house had been burned down. The applicant conceded that this information had not been put in his statement, but told the Tribunal that what he said at the hearing about the house burning down was true. When asked why he did not write this in his statement, the applicant said that during the time he wrote the statement it was very stressful so he skipped some information. The Tribunal does not accept that this is the case. In the applicant’s statement, he was able to include information that was not relevant to his claims, such as owning a small [shop] and being married, and was able to note that he had been threatened and physically mishandled by Maoists on many occasions. It is curious to the Tribunal that something as dramatic as Maoists coming to your family home and burning it down would also not be included in the statement. When coupled with the fact that the applicant had earlier told the Tribunal that he had been living in the same home his entire life, but then changed that evidence to suggest that he lived in his grandfather’s house and moved to his father’s house when the house was burned down, further undermines the assertion that the applicant’s home was burned down by Maoists. In the Tribunal’s view, had this been the case, the applicant would have told the Tribunal when it asked about his residential history at the start of the hearing about his move when the Maoists burned down the house, and not said that he lived in the same home his entire life in Nepal. The Tribunal does not accept the applicant’s explanation that his father’s house and grandfather’s house were considered a single home to account for the failure of the applicant to explain what the Tribunal considers to be a change in his evidence.
When the Tribunal takes into account the evidence as discussed above, it leads the Tribunal to the conclusion that the applicant is not a witness of truth. In this case, the applicant provided vague and unpersuasive evidence about his past harm in Nepal. He raised an incident of harm, being the burning of his house, for the first time at the Tribunal hearing. He produced an identity card to the Tribunal that would have been included in his protection visa application if he had it at the time and it was genuine. He could not provide any evidence about the support letter from that he produced to the Tribunal, which was clearly designed to corroborate his claims. He gave evidence about his political profile which was inconsistent with the political profile claimed in the support letter he produced. He provided inconsistent evidence about something as basic as whether he had a brother and his father’s current employment. The Tribunal cannot overlook these concerns when it considers them cumulatively.
In considering all these matters, the Tribunal finds itself in a position where it cannot be satisfied that the applicant is or was a member of the Nepali Congress, nor that he or his family have ever been harmed (however described) in Nepal by Maoists or people affiliated with the Maoists. The Tribunal is satisfied that the applicant has fabricated his claims for protection and that he travelled to Australia and has remained here for reasons not connected with Australia’s protection obligations. Given these concerns, the Tribunal is not satisfied that the applicant would return to Nepal and engage in any political activity because it is not satisfied that he has done so in the past and is not satisfied that he or his family would be harmed by Maoists or Maoist affiliated groups because he has not be harmed in the past.
Accordingly, the Tribunal is not satisfied that if the applicant were to return to Nepal, he would face a real risk of serious harm now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant is of no adverse interest to anyone in Nepal.
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 as above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Nepal, there are substantial grounds for believing that the applicant will face significant harm. Accordingly, the applicant is not 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 6818

16 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction