1609722 (Refugee)

1609722 (Refugee) [2019] AATA 6499 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609722
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:1 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 01 November 2019 at 10:22am
CATCHWORDS

REFUGEE – protection visa – Nepal – particular social group – child of inter-caste marriage – parents’ marriage opposed by father’s family – social attitudes to inter-caste marriages – parents’ and sister’s protection visas previously refused – credibility – parents’ delay in applying for protection – parents’ and sister’s voluntary travel to Nepal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
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).
BACKGROUND
The applicant is [Master A], a [age] year old Australian born Nepali citizen.
His parents are Mr [B] and Ms [C] who are both Nepalese citizens. They also have a daughter named Miss [D] who is an Australian born Nepalese citizen.
The applicant’s parents came to Australia [in] February 2008 on student visas. The mother was the visa holder and the husband was a dependent visa holder.
On 15 November 2013, the applicant’s father applied for a protection visa and included his wife and daughter on the visa application. This application was refused by a delegate and the refusal decision was upheld by the Refugee Review Tribunal on 28 October 2014.
The applicant was subsequently born on [date] and a protection visa application was lodged on his behalf on 14 September 2015. There was an attempt to include the remainder of the family members as members of the same family unit on this application. This was deemed invalid because the family had previously been refused a protection visa and were unable to make a further visa while onshore unless the Minister utilised s.48B of the Act and allowed another application to be made. An assessment was made considering whether this matter met the Minister’s Guidelines for s.48A cases and requests for s.48B intervention but the department determined that it did not, so the request for lifting of the statutory prohibition was not further considered.
As such, only [Master A] has lodged a valid protection visa application which was the subject of a delegate decision to refuse the visa on 17 June 2016. The delegate did not invite the applicant (or someone on his behalf) to an interview to discuss the claims.
Following the refusal, the applicant applied to the Tribunal on 29 June 2016 for a review of the refusal decision.
On 21 August 2019 the applicant was invited by the Tribunal to attend a hearing on 31 October 2019.
On 29 August 2019 [the migration agent] wrote to the Tribunal attaching a form appointing him as the applicant’s migration agent. The agent wrote that there was ‘a similar case being considered by the Federal Court in [city] in relationship to [another] family ([name])’ and requested that the Tribunal ‘postpone the hearing until the decision is available from the FCC/FC [city]. The request further asked that if the Tribunal would not postpone the hearing, then the Tribunal reschedule the hearing to allow the agent to prepare a submission to support the claims of the applicant.
The Tribunal considered this request but refused to postpone the matter for either reason. In regards to the matters that the agent raised about the ‘[name]’ matters, the Tribunal was not prepared to postpone the matter indefinitely pending the outcome of another case. In regards to the request to postpone the hearing so that a submission could be provided, the Tribunal’s view is that the applicant had a two month notice period for the hearing which was an adequate time for the applicant to retain an agent and prepare any material he wished the Tribunal to consider.
Following the Tribunal’s decision to refuse the postponement, the agent withdrew as the agent.
On 31 October 2019, the applicant appeared before the Tribunal to give evidence and present arguments. His parents attended the hearing and gave evidence jointly to the Tribunal on his behalf.
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 Tribunal has before it the department file and Tribunal file related to the applicant. The Tribunal also has before it the parents and sisters previous protection visa application file, and has considered the decision of the Refugee Review Tribunal in case 1406487 which relates to the applicant’s family’s unsuccessful review of protection visa refusals.
The applicant’s protection visa application was completed by his mother and accompanied by a cover letter which the Tribunal has considered. In summary the applicant’s claims are:
The reason that the applicant (and his family) cannot return to Nepal is due to the parent’s inter-caste marriage. If the applicant and his family were to go to Nepal they would ‘live in fear’ and not be able to survive in Nepal.
It was claimed that the applicant’s father’s family is opposed to the marriage of his parents, as was Nepalese society.
It was put on behalf of the applicant that inter-caste marriage in Nepal is not such a big issue in Nepal in the 20^th century, but the applicant’s father’s family and society are opposed to it. It was claimed that the applicant would not be accepted, nor would his mother and sister. The application noted that in Teria, where the applicant’s father is from, many people were fighting for caste and religion matters, and many people died because of these issues. It was further claimed that this had spread to the whole of Nepal, and that is the reason that the applicant and his family could not return. The applicant claims that because Nepal is a small country, with his father’s relatives located in every part of Nepal, the applicant would not be able to relocate to another place within Nepal to secure his safety. The applicant also noted that he would have nowhere to live due to the 2015 earthquake which damaged his mother’s family home in Kathmandu, which was the only place they could live in Nepal. Specifically relating to the Terai region, it was claimed that there were strikes and other civil unrest because of caste and religious differences, with many people desiring their own state for the individual caste and religion. Given this, the applicant claimed that nobody was safe and that authorities could not provide protection. It was claimed that there was nowhere for the applicant and his family apart from Australia, which would provide them a good future.
FINDINGS AND REASONS
The Tribunal has ultimately concluded that the decision under review should be affirmed.
The Tribunal is satisfied by the provision of the applicant’s Nepalese passport that he is a citizen of Nepal. No evidence was put before the Tribunal by the applicant to suggest otherwise. The country of reference for this assessment is Nepal. All other family members are also Nepalese citizens, as made clear from their passports which were provided.
The applicant has been in the care of his parents since birth, who remain in a relationship with the applicant’s father working and the applicant’s mother raising the two children. On the basis of the fact that the family unit remains intact, the Tribunal is satisfied that if the applicant were required to return to Nepal, his parents and sister would also do so. His family remain in Australia on bridging visas connected with the applicant’s protection visa application. The Tribunal is satisfied that the applicant would not find himself as a [child] alone in Nepal.
The Tribunal is satisfied that the applicant’s parents have an inter-caste marriage. The previous Tribunal was provided with a copy of the marriage certificate, and having read that decision and considered the evidence provided to that Tribunal about the marriage ceremony and attendees, this Tribunal is satisfied that the applicant’s parents married on 1 July 20107 in Kathmandu and that the marriage was subsequently registered there. The applicant’s father is from the higher [caste] and the applicant’s mother is from the lower [caste]. The Tribunal accepts that the applicant’s father’s family, who did not attend the wedding, are not supportive of their son’s decision to marry a person from another caste, and that there preference would be to find him a bride that they feel is more suitable.
However, despite these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm on the basis of being the product of an inter-caste marriage for the following reasons.
Attitude of father’s family towards inter-caste marriage
The Tribunal considers the evidence provided about the applicant’s father’s family opposition to the inter-caste marriage as a basis for a well-founded fear of harm to be unpersuasive.
The claims were that the applicant’s father’s family will force the applicant’s parents to separate because they oppose the marriage. The applicant also claims that his father’s family ‘could do anything’. The Tribunal accepts that they do not support this marriage, have expressed this to the applicant’s father in social media messages and on the telephone as his father has claimed. However, the Tribunal does not accept that this disappointment or anger equates to threats to harm, or anything else that could be considered serious or significant harm. In the Tribunal’s assessment, the expression of opposition to this marriage, such as suggesting shame was being brought on the family name, are repugnant and offensive things that have been regrettably said. They do not amount to anything more than regrettable things said by family members to someone who has done something they disapprove of. The Tribunal notes that it has not been claimed that during the period between the applicant’s parent’s marriage in July 2007 and their departure to Australia in February 2008 there was any instance of physical harm directed towards his parents by the applicant’s father’s family. The fact that the applicant’s father’s evidence to the Tribunal was that he continued to have telephone contact with his mother, with the last phone call occurring about a month before the Tribunal hearing (which was done in connection with a Nepalese festival) does not support a proposition that the applicant’s father’s family will target the applicant and his family upon a return to Nepal.
In assessing evidence provided by an applicant about their own personal circumstances to make relevant finding of fact, the Tribunal also considered whether the evidence provided is credible and provided by a witness of truth. In the circumstances of this case, the Tribunal was concerned by the provision of the following evidence at the hearing.
Failure to detail a specific instance which could support a claim that the applicant’s father’s family are prepared to act on their opposition to the inter-caste marriage until the 2019 hearing
At the Tribunal hearing, evidence was given that the applicant’s father’s uncle and a few of his friends attended the applicant’s mother’s family home in Kathmandu in 2009. The father’s uncle is a regional commander with the Maoist Party and was very connected according to the applicant’s father. The Tribunal was told that the applicant’s wife’s brother was threatened and told that the applicant’s parents have to return to Nepal and be separated. The Tribunal was told that this made the applicant’s parents scared when they were told of this by the applicant’s mother’s mother.
The Tribunal has a significant concern about this evidence. As put to the applicant, this specific instance had never been detailed in the parents’ previous protection visa applications, nor had it been raised at previous Tribunal hearing, despite the Member asking for specifics about family opposition to the marriage. The Tribunal put to the applicant that this inconsistent evidence may suggest that the applicant was not being truthful about the attendance at the mother’s family house. In response, the applicant’s father said that he did raise this previously, but not specifically, saying that when he referred to problems with his family, this is what he was talking about. The Tribunal has considered this response but is not persuaded by it. The specific attendance of the applicant’s father’s family at the mother’s family house would lend credibility to the fact that the family were prepared to act on their opposition to the marriage by attending on a house and making threats. This specific detail would have been included as a specific detail in the father’s protection visa application, and would have been told to the previous Tribunal, if it were true. The Tribunal is satisfied that this evidence was fabricated on the day of the Tribunal hearing in an attempt to bolster the claim. The Tribunal is not satisfied that this attendance happened and that this demonstrates that there was a willingness to embellish evidence to secure a positive migration outcome.
Travel to Nepal
The applicant himself has never travelled to Nepal. However, as noted in the delegate decision and confirmed at the Tribunal hearing, the applicant’s family has returned to Nepal since the parents first arrived in February 2008 as follows:
Mr [B]
·Left Australia [in] October 2011 and returned to Australia [in] September 2011
Ms [C]
·Left Australia [in] June 2010 and returned to Australia [in] July 2010
·Left Australia [in] June 2011 and returned to Australia [in] September 2019
Miss [D]
·Left Australia [in] June 2011 and returned to Australia [in] September 2019
The Tribunal notes that in the delegate decision reference is made to those three family members departing Australia for Nepal [in] May 2013 and returning to Australia [four days later in] May 2013. At the hearing, that information was clarified by the provision of the passports and oral evidence that the family went to [Country 1] for a holiday, and not to Nepal. The Tribunal accepts this is the case.
Nevertheless, the Tribunal was perplexed that the applicant’s parents, who claimed that they were to be harmed if they returned to Nepal following their marriage there in 2007, would willing return to that country and bring their young daughter with them. In the Tribunal’s view, this was inconsistent with a claim of a well-founded fear of persecution, or the existence of a real risk of serious harm.
In response to the Tribunal’s concerns, the evidence was not persuasive, with the Tribunal being told that the family were safe because they stayed at the applicant’s mother’s house and were not seen. The Tribunal was also told that the family would be safe if they were in Nepal for 1 or 2 weeks because no one would know that they were there. The applicant’s father specifically told the Tribunal that he remained in his mother-in-law’s house for the duration of his trip to Nepal. The Tribunal notes for completeness that the applicant’s father travelled to Nepal later than his wife and daughter and that he said he did so to the previous Tribunal because his daughter had been difficult on the flight over there, so he was required to go to Nepal and assist his wife with his daughter on the return flight. The Tribunal finds it incredulous that the applicant’s family, who claim to be fearful of returning to Nepal, would return there to visit the applicant’s grandmother and assume the supposed risks of being found by the applicant’s family (noting the claim that the family are everywhere, a family member has attended his grandmother’s home making threats, and they are at risk wherever they go in Nepal).
In addition to this concern, was that the applicant’s father gave inconsistent evidence about his activities during his travel to Nepal between the Refugee Review Tribunal hearing and the present Tribunal hearing. At the earlier hearing, the applicant’s father told the Tribunal that he had travelled to [Country 2] for tourism during that time before meeting up with his wife, while at the Tribunal he initially told the Tribunal that he remained in his wife’s family home for the entire stay and was able to avoid being found. The Tribunal put this inconsistency to the applicant, noting that it appeared to undermine his credibility as a witness. It appeared to the Tribunal that the applicant’s father was prepared to change his evidence to provide a narrative that he thought would be more persuasive by demonstrating that he had to hide and not leave the family home to avoid detection. The applicant’s father responded to this inconsistency by saying that he did travel to [Country 2] and forgot about that travel. The Tribunal has considered that response but is not persuaded by it. The Tribunal is satisfied that the applicant did not tell the Tribunal about the travel to [Country 2] in an attempt to suggest that he needed to remain hidden in the family home because he faced a real chance of harm if he was found.
Delay in lodging the protection visa applications of the applicant’s family

The Tribunal noted at the hearing its concerns about the timing of the protection visa applications related to the applicant’s father, mother and sister. The applicant’s parents arrived in Australia in 2008 but did not lodge protection visa applications until November 2013. The Tribunal was concerned about this delay because it was not, in the Tribunal’s judgment, consistent with a claimed fear of harm. If the applicant’s father’s family were opposed to the applicant’s marriage in 2007, had indicated opposition to the relationship while the applicant and his wife remained in Nepal, and there was a subsequent attendance on the applicant’s mother’s family home in 2009, it would be reasonable to expect that the applicant’s would have lodged their protection visa applications sooner than 2013. The Tribunal notes the migration history concerning the applicant’s family and that they were here on a student and dependent visa. The Tribunal was told that this was the case and the applicant’s mother and father did not need to lodge protection visas because they had existing student visas which allowed them to remain in Australia. When pointed out that student visas were temporary in nature and provided no guarantee that the applicant’s parents could remain in Australia, the Tribunal was told that they had a lawyer assisting them with the student visa trying to resolve the issues with the English language component of the visa. The Tribunal found this evidence to be curious, because there was a lawyer in place who could have easily provided advice about the protection visa process, and further, the applicant’s family could have made their own enquiries earlier to ascertain how they could apply to remain in Australia due to their claimed situation.
When the Tribunal considers the above concerns cumulatively, the Tribunal is satisfied that the applicant’s claimed concerns about the consequences that he and his family may face from his father’s family have been embellished in an attempt to obtain a protection visa. The Tribunal is satisfied that the applicant’s father’s family are not supportive of this inter-caste marriage, and have no desire to have a relationship with the applicant, his sister or his mother. However, the Tribunal is not satisfied that this opposition will manifest into any action that could amount to serious harm or significant harm. The Tribunal is satisfied that the applicant, his mother and sister will likely have no relationship with the applicant’s father’s family, but this does not amount to serious harm or significant harm.
Societal attitude towards inter-caste marriage in Nepal
Despite the claim being outlined in the protection visa form, the applicant conceded at the hearing that if his father’s family were supportive of his parents’ marriage, there would be no issue for him returning to Nepal with his family. His claim was solely focused on the attitude and risk posed by the applicant’s father’s family.
This is consistent with country information about inter-caste marriages in Nepal.
According to the 1 March 2019 Department of Foreign Affairs and Trade Country Information Report for Nepal, there are no legal barriers to inter-caste marriage. The government has even provided monetary incentives to each inter-caste couple married since 2009. The risk of family disapproval and associated violence depends on individual circumstances, however disapproval of such unions, may include acts of violence, and remains a possible outcome (at 3.54). In the applicant’s case, the Tribunal is not satisfied that there will be any acts of violence for the reasons previously given. The Tribunal also notes information from the same report which states that there are Constitutional protections and a 2012 Caste-Based Discrimination and Untouchability (Offence and Punishment) Act which criminalises any discriminatory acts on the basis of caste (at 3.52). While it is accepted by the Tribunal that there may be some elements of Nepalese society who continue to believe that inter-caste marriage is wrong, and may voice their disapproval of such unions, the Tribunal is not satisfied that the applicant through the marriage of his parents faces a real chance of serious harm, or a real risk of significant harm, because some members of society may disagree with his parent’s marriage. There is no evidence before the Tribunal that children of inter-caste marriages face a real chance of serious harm, or a real risk of serious harm, because they are the product of such a relationship.
Violence in Terai region / Everywhere in Nepal
Despite the claim being outlined in the protection visa form, the applicant conceded at the hearing that if his father’s family were supportive of his parent’s marriage, there would be no issue for him returning to Nepal with his family. His claim was solely focused on the attitude and risk posed by the applicant’s father’s family.
Nevertheless, the Tribunal has considered the current security situation in Nepal. As noted in the 1 March 2019 Department of Foreign Affairs and Trade Country Information Report for Nepal, the overall security situation throughout Nepal has dramatically improved since the end of the Maoist conflict. That same report notes that there were protests in September 2015 in the Teria region which continued until 2016, but those protests arose in part because of concerns about demarcation of provincial boundaries (at 2.41-2.42). There is nothing before the Tribunal to suggest that the current security situation in either the Terai region, or elsewhere in Nepal, is at such a parlous state to create a real risk of serious harm or a real chance of serious harm to the applicant and his family.
Inability to live in Nepal as mother’s family house was demolished by the 2015 earthquake
At the Tribunal hearing, the applicant’s evidence was that there had been damage to his paternal grandmother’s home in Kathmandu which is located on a block of land that the family tenanted out for farming. They still own that property. Since 2009, the applicant’s grandmother and his uncle who lived with her had lived in a number of rented apartments, and had been in their current two bedroom apartment for approximately four years. The applicant’s evidence was that at the time of writing the protection visa application, his maternal family were living in a tent but that situation had now changed.
Although at the hearing the applicant’s evidence was that they were not sure where in Nepal they would return to, on the basis of the evidence that during the previous travel to Nepal the family stayed with the applicant’s mother, and that prior to leaving Nepal they had lived in Kathmandu, the Tribunal is satisfied that if returned to Nepal, the family would do so again, until they could secure their own separate accommodation in Nepal. Given that the applicant’s father has worked on an off [in] Australia for 10 years, and the applicant’s mother is supportive of the family, the Tribunal is satisfied that they would not return to Nepal with no prospects of being able to secure a place to live. Accordingly, the Tribunal is not satisfied that there is a real chance of serious harm, or a real risk of significant harm to the applicant on account of his mother’s family’s house being damaged by an earthquake.
CONCLUSION
The Tribunal is not satisfied that if the applicant returns to Nepal he will face a real risk of serious harm on account of being a child of an inter-caste marriage, either from his father’s family or sections of Nepalese society who are opposed to such a concept. The Tribunal accepts that the applicant will not have a relationship with his father’s family and while unfortunate, this does not amount to serious harm or significant harm. The Tribunal does not accept that there is generalised violence in Nepal to the extent that serious harm will result to the applicant, nor does it accept that the applicant will have nowhere to live if he is returned to Nepal. As outlined earlier, the Tribunal is satisfied that if the applicant is required to return to Nepal, his father, mother and sister will do so.
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 discussed, 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 6499

1 November 2019

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