1610293 (Refugee)

1610293 (Refugee) [2019] AATA 5641 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610293
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Nathan Goetz
DATE:9 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2019 at 10:06am
CATCHWORDS
REFUGEE – protection visa – Nepal – ethnicity – inter-ethnic attacks and threats – fear of family’s disapproval – health – eyesight – possibility of unemployment – wife and child entitled to remain in Australia – credibility – inconsistent evidence – delay in applying for protection – no evidence of mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 65, 424AA
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, first arrived in Australia [in] August 2008 on a [temporary 1] visa. That [temporary 1] visa ceased [in] November 2010 and the applicant then applied for another [temporary 1] visa while in Australia and was granted a bridging visa while his application was considered. This application was refused [in] August 2011 and his bridging visas ceased [in] September 2011.
The applicant subsequently lodged an application for a [temporary 2] visa [in] October 2013. The [temporary 2] visa was refused [later in] October 2013. The applicant sought a review of the refusal decision with the Migration and Refugee Tribunal, and [in] February 2014 that Tribunal affirmed the refusal decision. The applicant through his migration agent then wrote to the Minister [in] April 2014 to request that the Minister intervene to grant the applicant the visa. [In] August 2015, the request for Ministerial Intervention was refused.
[In] September 2015 the applicant lodged a protection visa application that was deemed invalid by the department. He was notified that his protection visa was invalid [in] November 2015 because he failed to provide ‘personal identifiers’ as he was required to do. [In] December 2015 the applicant lodged a protection visa which was accepted as valid.
The applicant was interviewed by a delegate [in] June 2016 in relation to his protection claims, and the delegate refused to grant the visa [later in] June 2016.
The applicant lodged an application with the Tribunal on 8 July 2016 to review the refusal decision.
The applicant appeared at the Tribunal on 7 November 2019 to give evidence and present arguments for his protection claims.
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 applicant is a [age] year old Nepalese man who was born in [City 1], in the Dhanusa District of Province No. 2 of Nepal. He is one of [a number of] children. His father worked in [a position] for the government and is now retired and receiving a pension. His mother is a housewife.
In his protection visa application form, the applicant claimed that he left Nepal to ‘save his life from Madhesi Groups’ who were fighting to establish a community based state. If he returned to Nepal, he believed that he would be tortured and killed.
He provided a statutory declaration where he declared that he resided in the Terai region of Nepal for ‘ages’. He grew up and completed his studies in his home town of [City 1]. The recent political movement in the Terai region ‘completely changed his circumstances’. He wrote that people are divided in local (Madhesi) and non-local (Pahadi) groups. Madhesi people were demonstrating for the establishment of a state based on Madhesi people, and Madhesi people did not want Pahadi people in the Terai region. Madhesi people were using ‘every possible action’ to remove Pahadi people from the Terai.
The applicant wrote that his family had been faced with such a situation. He wrote that Madhesi people tried to burn the family house down and had thrown stones and petrol bombs at his house. He wrote that he remembered that one of his family members had to be awake for the whole night for the security of other family members. The applicant wrote that because of this incident his step-brother left the family home and fled overseas. At the same time, the applicant decided to come to Australia for further studies. He was hopeful that the situation in his home town would one day be nice, and believed that once he completed his studies, he would return to is home country and find a decent job. However, there were changes in the Terai which made the situation worse. He wrote that protests against the government were getting more violent and that several people had lost their lives, including highly ranked security personnel. He wrote that because of protests and anti-Pahadi movements in his home town, his parents were not able to live in [City 1] and left their home, and were residing in Kathmandu the applicant’s sister. If the applicant was to return to Nepal, he would have to fight the Madhesi which he said he could not do because he was physically disabled. He would live in a really scary environment because no one would know what was going to happen next.
The applicant claimed that he was scared of himself, and that there was something wrong with himself which may result in him harming himself and his family. He wrote that he felt like he would want to kill himself, because he could not tolerate harassment. He wrote that he was mentally disturbed about the past situations and that going back to the same environment and being harassed by people while walking on the street made him really scared. If he was to return to Nepal, he would be targeted by Madhesi people, and he does not have any place to go. He wrote that he would stand against the Madhesi people and would possibly be killed by them.
In his written protection visa application, the applicant did not disclose his previous residential addresses in Nepal. At the delegate interview, he told the delegate that he left [City 1] and lived in Kathmandu from 2003 to 2008 when he came to Australia.
At the delegate interview, the applicant mentioned that stones had been thrown at the family home which caused his parents to move to Kathamandu.
He spoke about the fact that one time, after his grandfather had died, people threw a cooking gas bomb at the family home. He told the delegate that ‘they’ only tried to burn the family house once.
The applicant also told the delegate that as he had been in Australia for a long time, it would be hard for him to find a job, and that he is losing his vision which would make finding employment more difficult for him. He also claimed that he was afraid of his relatives because they had put a ‘lot of hope’ in him that he would go overseas and make money, but if he was returned to Nepal, he would have nothing.
At the Tribunal hearing, the applicant gave the following relevant evidence about his claims.
The applicant was born in [City 1] which is about a 6 hour drive from Kathmandu. He lived in the same family home in [City 1], but his father had a government job which required him to transfer every couple of years, which resulted in the applicant and his biological mother moving with his father. He detailed to the Tribunal living in a variety of places. Relevant to his evidence, the applicant told the Tribunal that he moved to Kathmandu where he remained for three years until 2006 when he finished his schooling, after which time he returned to [City 1] and lived there from 2006 until 2008 in the same family home.
He told the Tribunal that in 2006 or 2007 a gas bomb cylinder had been thrown inside his family home in [City 1]. This happened during the evening. The applicant was present as were about 30 people. It was a family gathering/ritual connected with [family member’s] death. The cylinder was thrown first together with a glass bottle and this landed out the front of the house. The applicant’s father was able to turn off the cylinder. The applicant did not see the people who threw the cylinder and found out later that the family was targeted.
He told the Tribunal that a few months prior to this incident, there was a fire. A group of Madhesi people came to the family home. The family locked the door but the Madhesi were calling out to the family. The Madhesi set a fire at the bottom of the house, but thankfully a neighbour came and put soil on the fire to stop it. The family reported this incident to the police.
He told the Tribunal that apart from these two instances in 2006 or 2007, the only other harm he had suffered from the Madhesi was being ‘verbally assaulted’, and that nothing further had had happened to him since the two instances.
Regarding his protection visa application, the applicant found out that he could apply for protection visas after he arrived in Australia. He found out about protection visas in either 2013 or 2014. He later clarified that he found out that he could lodge a protection visa application after his medical treatment visa was refused by the Tribunal [in] February 2014. He did this by attending on the department to query what he could do, and was told by the department official that he either had to return to Nepal or that he could lodge a protection visa application. However, later he said that the department official had also advised the applicant that he could apply for intervention by the Minister regarding his medical treatment visa refusal and he had decided to do that instead. He decided to pursue ministerial intervention because he thought the Minister would grant him the medical treatment visa.
The applicant reiterated his claim that he could not return to Nepal because he was from a very conservative family and if he went back, he would be considered useless because he had not achieved success in Australia.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Ethnicity as a Pahadi
The applicant claims that there is a real chance of serious harm to him on account of his ethnicity as a Pahadi. However, the following two reasons lead the Tribunal to conclude that this is not the case.
Firstly, this is not supported by the 1 March 2019 Department of Foreign Affairs and Trade Report on Nepal. For context, that report notes that:
The Madhesi are a group of people of Indian origin who live in the Terai region. Many have continuing strong socio-cultural and ethnic links across the border with India. The term ‘Madhesi’ refers to non-Tribal, caste Hindu’s of Indian origin that live in the Terai. Many Madhesi consider those people living in the Terai who do not fit this definition (including Muslims, Thatus and Pahadis, and indigenous groups who predated Madhesi immigration to be foreigners. Ethnic and political favouritism by way of land allocation towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the Pachayat system (1962-1990) which exacerbated feelings of discrimination by the Madhesi resulting in decades of political activism and tension between the Madhesi and members of other ethnic minorities in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.
There is nothing in that report to suggest that Pahadis face a real chance of serious harm from the Madhesi community, and it would be reasonable to expect that any targeting by Madhesi communities of people identified as Pahadi would be noted in this report. The Tribunal put to the applicant the absence of country information which supported his claim that he would face a real risk of serious harm because of his ethnicity and invited him to comment on it. The applicant responded that this was because most Pahadis had left Nepal. The Tribunal is not persuaded by this response, as there is nothing before the Tribunal to suggest that there has been such a mass migration by Pahadis from the Terai region to avoid harm from the Madhesi. If such an event had occurred, it is reasonable to expect that it would be noted in the report, because it would be relevant to the claimed harm that the applicant feared on account of his ethnicity.
The applicant cited to the Tribunal two instances of attendances on the family home as evidence of the harm he suffered on account of his ethnicity as a Pahadi. The Tribunal has struggled to accept that the applicant is a witness of truth about these claimed instances. He told the delegate at interview that Madhesi had thrown a cooking gas bomb at his house and confirmed that this was the one occasion that the Madhesi had tried to burn down the house. At the Tribunal hearing, he detailed two separate instances of attempts to burn the house down, separated by months. The Tribunal struggles to accept that if both of these incidents had occurred, the applicant would raise only one of the instances with the delegate at interview. While the Tribunal notes that the applicant’s statement reads that ‘Madhesi people tried to burn our house, and throw stones and petrol bombs at our house’, the statement is very broad and reads as one incident, which is in accordance with the oral evidence that the applicant gave to the delegate.
Utilising the procedure under s.424AA of the Act, the Tribunal put to the applicant that his oral evidence about the number of instances of attacks on the family home differed to his previous evidence. Particularly when it came to his statement, which the applicant told was prepared with the assistance of a migration agent, it would be reasonable to expect that the specific instances would be detailed. The applicant told the Tribunal that the two instances of the gas cooker and the fire were separate. The Tribunal does not accept that this is the case, and is satisfied that the applicant only mentioned one incident to the delegate, which was when the cooking gas was thrown at the home. In the Tribunal’s view, this suggests that the applicant is willing to fabricate claims to achieve a successful protection visa outcome.
The Tribunal’s concern about the applicant’s truthfulness about the past harm he claims to have suffered in Nepal is bolstered by a number of other pieces of evidence. Firstly, the applicant claimed to the delegate to have lived in Kathmandu from 2003 until 2008, yet told the Tribunal that he returned and lived in [City 1] from 2006 until 2008. Obviously, if he was living in Kathmandu from 2003 to 2008 he could not have been present when his family home was attacked in 2006/2007 as he claimed to the Tribunal, and the Tribunal suspects that it is for this reason that he told the Tribunal that he lived in the family home from 2006 to 2008, obviously aware that the earlier narrative about his living arrangements would make his presence at the family home impossible.
Utilising the procedure under s.424AA of the Act (although the Tribunal notes that the applicant’s protection visa form was amended by him at the delegate interview to confirm that he lived in Kathmandu from 2003 to 2008), the Tribunal put to the applicant its concern that this change in his evidence suggested that he was not a witness of truth. The applicant’s response to the Tribunal’s concern was not persuasive. He disputed that he told the delegate this, and told the Tribunal that he sometimes lived in Kathmandu. The Tribunal does not accept this is the case and is satisfied that he told the delegate that he lived in Kathmandu from 2003 until he left Nepal. The Tribunal finds the shift in the applicant’s evidence to demonstrate that he has a flexible approach to the truth and is prepared to change his evidence in an attempt to provide a more realistic narrative in support of his claims.
The applicant also told the Tribunal that his parents, whom he had earlier said live in Kathamandu, split their time between [City 1] and Kathmandu. They travel back to [City 1] for festivals where they stay in the same family home, usually for a month. The applicant told the Tribunal that the family home consists of a residence on the upper floor and a space downstairs which is currently rented to an educational institution, which provides some income for his parents. The Tribunal really struggles to accept that if the applicant, and clearly his family, had been targeted as he claimed, that his parents would return to the family home for any reason. This return to the family home further undermines the applicant’s claims that he or his family have previously been targeted because of their ethnicity as a Pahadi.

The Tribunal has considered its concerns about the above evidence in light of the delay in the applicant applying for a protection visa. The applicant arrived in Australia in August 2008 but did not apply for a protection visa until December 2015 (although the Tribunal accepts that the applicant made an invalid protection visa application in September 2015). The Tribunal put to the applicant its concern that the delay in seeking protection, when he knew that he could apply for a protection visa from at least 2014, would suggest that the applicant had in fact made up his claims for protection. To the Tribunal’s way of thinking, it would have been reasonable to expect that the applicant, who claims to have left Nepal because of fear, evidenced by claimed past harm, would have claimed protection earlier than seeking to do so in September 2015. The applicant’s response was that he came to Australia and thought he would study and remain in Australia that way. When he started to have problems with his eyesight, he thought he would lose his opportunities to remain in Australia and wouldn’t be able to go back to Nepal either. He said that he was fearful of returning to Nepal.
The applicant’s evidence about why he delayed applying for protection was not persuasive. Noting the migration history as contained in the delegate decision, the applicant pursued [temporary 1] visas before being refused a [temporary 1] visa in 2011, became unlawful for two years before applying for a [temporary 2] visa, then sought Ministerial Intervention on the [temporary 2] visa refusal, before applying for a protection visa shortly after his request for Ministerial Intervention failed. To the Tribunal’s way of thinking, this demonstrates that the applicant has applied for a protection visa to remain in Australia as a visa of last resort, not because of any real chance of serious harm, or real risk of significant harm, if he were to return to Nepal, but to remain in Australia for some other reason. If the applicant had been told by the department, as he claimed, about protection visas after his [temporary 2] visa was initially refused, the Tribunal is satisfied that he would have applied for a protection visa instead of seeking Ministerial Review of his [temporary 2] refusal. But even more so, it is incredulous to believe that the applicant who claimed that he left Nepal to ‘save his life’, would come to Australia and pursue a series of temporary visas which offered no guarantee of an ability to remain in Australia, instead of lodging a protection visa shortly after his arrival in Australia. In combination with the other concerns the Tribunal has expressed about the applicant’s credibility, this leaves the Tribunal in a position where it is not satisfied that the applicant left Nepal because he feared harm on account on his ethnicity, that he or his family experienced the harm he claimed, or that there is a real risk of serious harm to him if he returned to Nepal based on his ethnicity. The Tribunal is satisfied that the applicant lodged his protection visa application as a means to remain in Australia, but not for reasons connected with Australia’s protection obligations. The Tribunal is satisfied that the applicant’s narrative has been fabricated as a means to remain in Australia. The Tribunal rejects theapplicant’s claims that he cannot return to Nepal because of his ethnicity as a Pahadi.
Family attitude to his return to Nepal
The applicant’s written protection visa application makes no mention of his claimed fear of his relatives should he return to Nepal. The first time that issue was raised was before the delegate at interview where he said that his family had a lot of hope that he would go overseas and make lots of money, but he does not have any. The delegate did not canvas that issue at any length, and does not mention it in the decision record. At the Tribunal hearing, the applicant told the Tribunal that his family would be disappointed that he had returned to Nepal and this was a reason why he could not return to Nepal, and noted that he would be considered useless and be considered ‘one more responsibility’ for his family there.
At no time did the applicant express any fear of harm from his family because of the fact that he would return to Nepal having not been a success in Australia, nor did he provide any evidence to suggest that his family would harm him if he returned to Nepal. His evidence at its highest would be that his family was disappointed in him. The Tribunal accepts that the applicant’s family may well be disappointed that he did not make a successful go of his studies in Australia, or any attempts to remain in Australia, noting the applicant’s evidence that his family had spent approximately $20,000 towards his studies. However, they still keep in contact with the applicant, and as noted, there is no claim that they have expressed any hostility by way of threats or violence toward him. Disappointment by family because a lack of education or financial success overseas does not mean that Australia has protection obligations to the applicant. 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 return to Nepal because he was unsuccessful in Australia. The Tribunal rejects the applicant’s claims that he cannot return to Nepal on account of his family in Nepal.
Poor eyesight and vision problems
The applicant’s written protection visa application did not raise that he could not return to Nepal because of his poor eyesight and vision problems. The first time that claim was made was during the interview with the delegate. The applicant raised this in the context of the fact that he would struggle to find work in Nepal because his vision is blurred, but that with his glasses he can see long distances. He told the delegate that he is losing his vision and that he had a scar inside his left eye so he could not see properly. At the Tribunal hearing, the applicant failed to raise this claim and confined his claims to the disappointment that his family would have in the applicant returning to Nepal having failed to be successful in Australia, and the fear that he had on account of his ethnicity as a Pahadi. The Tribunal asked the applicant a couple of times whether there was any other reason why the applicant could not return to Nepal, and the applicant said there was not.
The Tribunal then noted to the applicant that he said to the delegate that he could not return to Nepal because he had problems with his eyesight. The applicant said that there was a lot of unemployment in Nepal, and as someone who is not highly educated, he would have difficulty finding a job in Nepal and ‘facing people’ as a result of his vision problems. The applicant has not provided any medical documentation to support that he has vision problems, the nature of his problems, and his treatment. However, the Tribunal accepts that the applicant wears glasses and that this may, depending on the nature of the work that the applicant may seek to pursue in Nepal, impact on his desirability as a candidate for employment. The Tribunal put to the applicant that there was nothing before the Tribunal to suggest that there was discrimination which amounted to persecution against people who have vision problems in Nepal. The applicant responded that he cannot drive on account of his vision problems and that in Nepal there are no jobs designed for people with such disabilities. The Tribunal notes that the applicant may feel this way, but there is nothing before the Tribunal to suggest that the applicant faces a real chance of serious harm in Nepal because he is a person who has vision problems, or that he faces a real risk of significant harm because he is a less desirable employee than someone who has better vision than the applicant. There is nothing before the Tribunal to suggest that the applicant would not be able to subsist in Nepal because he has vision problems. The Tribunal rejects the applicant’s claims that he cannot return to Nepal because he has vision problems.
Wife and child in Australia
Towards the end of the Tribunal hearing, the applicant told the Tribunal that he has ‘nothing’ and that he did not wish to return to Nepal because he had a wife and child in Australia. He provided the Tribunal with a New South Wales Marriage Certificate which indicated that he married [Ms A] on 4 May 2019. He also provided the Tribunal with a copy of the birth certificate of his [child Name] who was born on [date]. Ms [A] and their child were present at the Tribunal hearing. The applicant said that his wife does not want him to leave Australia. The applicant’s wife is a [Country] citizen who is in Australia on a [specified] visa, allowing her to remain in Australia.
The Tribunal accepts that the applicant is a married man and that he has fathered a child here in Australia. The Tribunal accepts that if he were to be removed from Australia to Nepal this would result in the applicant being separated from his child who is entitled to remain in Australia with the child’s mother as a dependent on her mother’s visa. While it would be upsetting for the applicant and his family to be separated, this would be a consequence of the operation of Australia’s migration laws and would not amount to serious harm or significant harm. The applicant did not claim that he would face a real chance of serious harm in Nepal because he has a wife and child in Australia, nor did he actually claim that he would face significant harm as a result of his removal from Australia to Nepal connected with his family remaining in Australia. Rather, his claim was on the basis that he should not be removed from Australia because his wife and child would remain here, while he would be required to return to Nepal. The Tribunal is not satisfied that the separation of the applicant from his wife and child would meet the definition of significant harm. The Tribunal rejects the applicant’s claims that he cannot return to Nepal because he has a wife and child in Australia.
Applicant’s claim that he may harm himself if he is returned to Nepal
The applicant’s claim that he may harm himself if he is returned to Nepal was based on the fact that he was, according to his application, mentally disturbed when he remembers all the past situations’ and on the basis that he would ‘go back to the same environment and face all those problems’. As noted earlier in this decision, the Tribunal does not accept that the applicant has ever faced harm on account of his ethnicity as a Pahadi, and consequently does not accept his claim that he is mentally disturbed when remember ‘all the past situations’ because the Tribunal does not accept that those ‘past situations’ occurred at all. No evidence by way of medical reports or diagnosis was provided to the Tribunal to suggest that the applicant suffers with any mental health condition or suicidal ideation arising from his claimed past experiences. In the Tribunal’s view, the applicant fabricated his claim that he was mentally disturbed and may harm himself or his family in an attempt to corroborate the narrative of past harm, which the Tribunal rejected for the reasons discussed. The Tribunal does not accept that the applicant will harm himself or his family if he is returned to 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, 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 5641

9 December 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction