1610544 (Refugee)

1610544 (Refugee) [2019] AATA 4947 (6 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610544
COUNTRY OF REFERENCE:                  Nepal
MEMBER:Nathan Goetz
DATE:6 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 November 2019 at 11:25am

CATCHWORDS
REFUGEE – protection visa – Nepal – threats by family about marriage to Australian woman – separated but not divorced – credibility – immigration history – application for protection after partner visa refused – Australian citizen sister in a marriage opposed by family – fear of harm not well founded – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 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 applied for the protection visa on 3 December 2015. The applicant was interviewed by the delegate on 27 June 2016. On 29 June 2016 the delegate refused to grant the applicant the protection visa. He lodged an application for review with the Tribunal on 13 July 2016.
On 5 November 2019 the applicant appeared before the Tribunal to give evidence and present arguments. He was represented at the hearing by his migration [agent].
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
Non-disclosure certificate – s.438 of the Migration Act 1958
The delegate placed a non-disclosure certificate on Folio 47 of the department file, certifying that s.438(1)(a) of the Act applied to the information contained in Folio 47 because the disclosure of this information would be contrary to the public interest as the information referred to internal working documents and business affairs. The Tribunal made the applicant aware of the existence of the certificate and is satisfied that the certificate is invalid. It is invalid because the certificate does not more than cite the ground for public interest immunity and does not identify the harm that would be caused by the disclosure of the information. The information purportedly covered by the certificate is a document titled ‘Identification Test: Protection Visa Applicants’ and is not relevant to the applicant’s claims for protection.
What are the applicant’s claims?
The applicant’s claims as contained in the written protection visa application and his oral evidence provided to the delegate and the Tribunal.
The applicant is a [age] year old man who was born in Kathmandu in Nepal. He belongs to the Newar caste group and is a Hindu. He came to Australia to study.
The applicant’s family consist of his mother and father [and a number of siblings], one of whom is in Australia and is an Australian citizen.
The applicant wrote that he was from a conservative family and that his parents and relatives expected him to follow strict Nepalese values and culture. When he came to Australia, he met a woman named [Ms A] in 2011. He described her as a ‘street girl’. They became friends and a relationship developed, with the two marrying in 2013. The applicant provided a copy of his marriage certificate. Ms [A] had drug problems and eventually this led to the applicant himself becoming addicted to heroin. Following a period of time on the methadone programme, the applicant is now free from his addiction. The applicant wrote that his sister in Australia was supportive of him and his relationship, but his family in Nepal were against his relationship because she was a street girl and not suitable because she was not Nepalese, and not from the same caste.
The applicant wrote that the relationship has since ended. At the hearing, he told the Tribunal that the relationship ended about three years ago, but the two continued to have a friendship for 18 months since they separated. However, for the past year, they have had no contact and the relationship was over. Although separated, the applicant and Ms [A] are not divorced.
Before the relationship ended, the applicant and Ms [A] lodged a partner visa application which was refused. According to the delegate decision, the partner visa application was refused [in] August 2015.
The applicant wrote that he feared that due to his inter-faith, trans-border relationship and marriage, if he returned to Nepal he would face serious harm and would be possibly killed by his family and the conservative Nepalese society. At the hearing, the applicant expanded upon this to include the guthi, which is a social organization that is used to maintain the socio-economic order of Nepalese society. The applicant wrote that police would not be able to protect him because they consider such matters to be family issues. At the hearing, he indicated that police were corrupt and liable to be bribed by his persecutors so he would not be protected. The applicant wrote that even if he moved to another part of Nepal, he believed that his family and relatives would find out where he was because Nepalese people in Australia would inform them about his departure.
The applicant reiterated his claims for protection at the delegate interview and mentioned that he was particularly fearful of his older brother who had told the applicant’s parents about his relationship with Ms [A] who was a prostitute. The applicant said that his parents were angry at him because he brought shame on the family. The applicant told the delegate that he grew up in a very strict household and noted previous incidents of violence at the hands of his immediate family when he misbehaved by playing loud music or drinking alcohol.
At the Tribunal hearing, the applicant provided the following evidence:
He did not tell his family in Nepal about his pending marriage because he thought they would not agree with it. This was based on his past experience where his older brother had a [Country 1] [partner] in Nepal and his parents were not happy with this, and his older brother and his girlfriend subsequently separated, and because his parents had opposed [a County 2] [recreationer] who was holidaying in Nepal from having a relationship with one of his sisters because they were culturally different. Another sister had been in an inter-caste relationship when she was 18 or 19 which was opposed by his family, and she was punished by having her hair cut off. This happened when the applicant was about 14 years of age.
Six months after his marriage in 2013, the applicant spoke to his family in Nepal on the telephone. He was told that he had made a big mistake in marrying Ms [A]. His mother was upset and was not happy about this. His father and brother had also expressed their disappointment at what he had done. The applicant told the Tribunal that he informed his mother approximately three years ago that the relationship had ended and expressed his desire to return to Nepal, but his mother indicated that he had made a huge mistake marrying Ms [A] and that there would need to be consultation with the community, his father and brother before he could return. The applicant was threatened by his brother saying that if he returned to Nepal, he would break his arm, and the applicant was fearful based on his past experience of violence from his strict family that they would leave him in a room and subject him to punishment. He told the Tribunal that he was scared when his family were angry. The last time the applicant spoke to his older brother was after the applicant’s relationship with Ms [A] ended, but the applicant’s older brother did not provide any response to this news, indicating he did not care whether the applicant had separated from Ms [A] or not. A submission made by the applicant’s agent at the conclusion of the hearing was that due to the applicant remaining married, although separated, he would still be considered married by his family and Nepalese society and consequently, the applicant remained at risk of harm because of his marriage.
The applicant asked the Tribunal to take evidence from two witnesses in support of his protection visa claims. Each of these witnesses provided written statements and subsequent statutory declarations. Their evidence is discussed as follows:
The statements of Mr [B] indicate that he was a friend of the applicant and the applicant’s partner. His statements read that Mr [B] and the applicant discussed their personal matters. It confirmed the applicant’s relationship with Ms [A] and its end. The statement reads that Mr [B] was told about the applicant’s family’s opposition to the relationship by the applicant. At the hearing, the applicant told the Tribunal that Mr [B] had spoken to the applicant’s family over the phone, but it was just chatting because he and Mr [B] used to work together and were friendly. Mr [B] had never spoken to the applicant’s family about the matters which gave rise to the applicant’s claims for protection. The applicant confirmed that Mr [B]’s knowledge about the problems with the applicant’s family came from what the applicant told him. When Mr [B] gave oral evidence to the Tribunal, he was asked whether he had a discussion with the [applicant’s] family and whether they had made any threats to the applicant through him. Mr [B] said they had done so.
The statements of Mr [C] which indicate that he is the brother-in-law of the applicant and that he knows the applicant very well. Mr [C] had a relationship with the applicant’s sister who is now in Australia. Mr [C], who was the applicant for a spouse visa with the applicant’s sister as sponsor, wrote about his own experiences with the applicant’s family. He wrote that the family did not approve of Mr [C]’s relationship because he was from a poor family and a dissimilar caste. This resulted in the applicant’s family forcefully taken the applicant’s sister and beating her. The couple was threatened, including threats of death from the applicant’s brother. It is for this reason that they secretly escaped to Australia. The statements note that given what had occurred in Mr [C]’s case and the fact that there were many honour killings in Nepal, the applicant’s life would also be at risk of harm from family members. At the hearing, Mr [C] confirmed that he was married to the applicant’s sister in February 2014, but that they separated in 2017, although they are still married.
The applicant provided an article titled ‘Honour killings on the rise in both Nepal and India from the Himalayan Voice which was an article from 2010. The Tribunal has considered this article.
At the hearing, the Tribunal clarified with the applicant the purpose of the documents he submitted with his protection application which were contained at Folios 56-48 and 58-57. These documents related to a dental appointment, funding provided to the Red Cross as part of the Migration Support Programme and an information sheet related to treatment of people with the hepatitis C virus infection and recent drug use. The applicant confirmed that his only protection claims related to his inter-caste marriage, and that the documents had been included because he had been supported by the Red Cross in Australia because he had been depressed, was being treated for hepatitis C as well as his drug use. The applicant told the Tribunal that his hepatitis C was cured through treatment, he was no longer depressed and was happy as he was working as a nursing assistant in [Suburb], and that after being on the methadone programme, he was no longer addicted to drugs and had been free of his addiction for the past two or three years.
FINDINGS AND REASONS
Having considered the material before the Tribunal, the Tribunal has ultimately concluded that the decision under review should be affirmed for the following reasons.
The applicant agreed with the Tribunal that he had come to Australia on a student visa, and then lodged a partner visa and subsequently a protection visa. Turning specifically to the applicant’s immigration history, it can be detailed as follows:
·[June] 2008 – Applicant arrived on a student visa and returned to Nepal [in] May 2009
·[May] 2009 – Applicant arrived in Australia on a student visa
·[July] 2010 – Applicant given a further stay on student visa
·2010 and 2011: Non-compliance notice issued for student visa
·[September] 2014: Applicant applied for a partner visa
·[August] 2015: Partner visa refused
·[December] 2015: Applicant lodged a protection visa application.
The Tribunal was concerned about the applicant’s migration history as it did not indicate that the applicant had a well-founded fear of harm in Nepal. Noting that the applicant married Ms [A] in 2013, and told the Tribunal that he did not tell his family about their marriage because he knew that they would be opposed to the union because of their previous demonstrated attitude to inter-caste/non-caste marriages, the Tribunal struggles to accept that the applicant would not have lodged a protection visa soon after his marriage. Further, when he actually discovered that his family had found out about his marriage approximately 6 months after he was married. This occurred when a friend from the same town in Nepal (with whom the applicant was living in Sydney) returned home and told the friend’s parents that the applicant was married to Ms [A]. From this, the news spread around the hometown and the applicant’s family became informed. This resulted in opposition from his family, with threats from his brother about breaking his arm. Despite this, no protection visa was lodged at this time. The Tribunal raised the delay in lodging the protection visa application based on his migration history with the applicant utilising the procedure in s.424AA and invited his comment or response because this delay suggested that the applicant in fact did not have a well-founded fear of persecution. In response, the applicant said that he had a wife and had applied for a partner visa so he did not need to lodge a protection visa. It was only when he his partner visa was refused and he felt that he had no choice that he lodged a protection visa application. He agreed that he did this occurred four months after his partner visa was refused.
The Tribunal has considered this response but is not persuaded by it. The Tribunal struggles to accept that if what the applicant said about the violent nature of his family in Nepal (with a claimed demonstrated antipathy to marriages and relationships that are non-traditional, evidenced by the family attitude to other past relationships of his siblings), the applicant would pursue a partner visa, which would by no means secure a guarantee that he could remain in Australia, as opposed to pursuing a protection visa application sooner than what he did. Further, the partner visa was filed in September 2014. This means that he received these threats prior to lodging a partner visa. In the Tribunal’s view, the applicant’s claim that he did not need to lodge a protection visa because he had a partner visa is therefore not true. When considering the timing of the protection visa application, and considering the applicant’s migration history as a whole, the Tribunal is not satisfied that the applicant has a well-founded fear of serious harm because of his marriage. The Tribunal is satisfied of this when it considers these concerns cumulatively with the other concerns it has expressed throughout this decision.
Further, the Tribunal was concerned about the inconsistency between Mr [B]’s oral evidence and the evidence of the applicant. The applicant had told the Tribunal that Mr [B] had spoken to the applicant’s family, but not about the matters related to his protection concerns. Mr [B]’s understanding of the applicant’s family’s opposition to the applicant’s marriage had come from what the applicant had told Mr [B]. In contrast, Mr [B]’s oral evidence was that the applicant’s family had made threats through Mr [B] to the applicant. This is no minor point. The applicant produced Mr [B] as a witness of truth to support his protection claims, and Mr [B] gave evidence which was contradictory to that of the applicant. Utilising s.424AA of the Act, the Tribunal put its concern about Mr [B]’s evidence to the applicant, as it suggested to the Tribunal that the evidence which was being provided to the Tribunal may not be credible. The applicant responded to the Tribunal’s concern telling the Tribunal that it was while the applicant was on the phone to his family, and the applicant was threatened and distressed that Mr [B] asked whether the applicant’s family had threatened him. The Tribunal has considered that response but is not persuaded by it. The Tribunal was very direct in its question to Mr [B] about whether the applicant’s family had made threats directed to the applicant through Mr [B] and Mr [B] said that they had. The Tribunal is satisfied that Mr [B] fabricated his evidence to the Tribunal in order to lend credibility to the applicant’s claims. The Tribunal is conscious of whether the concerns it has about the credibility of Mr [B] can be used to undermine the credibility of the applicant and is satisfied in this circumstance that it can. It is the applicant who produced Mr [B] as a witness of truth to corroborate his claims, albeit to corroborate that the applicant had told Mr [B] about the problems he had with his family. The Tribunal’s view is that the inconsistency in Mr [B]’s evidence demonstrates an attempt by the applicant and his supporters to provide a narrative in an attempt to achieve a positive migration outcome, not because any of the evidence is true. The Tribunal is satisfied of this when it considers these concerns cumulatively with the other concerns it has expressed throughout this decision.

Additionally, the Tribunal was concerned about the migration history of the applicant’s sister who is an Australian citizen and married to Mr [C]. Noting that Mr [C] and the applicant’s sister married in Nepal in February 2014, and claimed that they experienced similar opposition to the claimed opposition experienced by the applicant (save for actual violence) the Tribunal noted to both the applicant and Mr [C] the movement records of the applicant’s sister (subsequent to her marriage to Mr [C]) which were as follows:
·Arrived in Australia [in] April 2014 and departed Australia [in] September 2015
·Arrived in Australia [in] November 2015 and departed Australia [in] January 2017
·Arrived in Australia [in] February 2017 and departed Australia [in] November 2017
·Arrived in Australia [in] December 2017 and departed Australia [in] June 2019
Both Mr [C] and the applicant were asked by the Tribunal where the applicant’s sister travelled to during the absences from Australia. The applicant told the Tribunal that his sister most recently travelled to Nepal and then went to [Country 3] for medical treatment concerning her son. He indicated that she is living in Nepal and planning to return to Australia in 2020. He told the Tribunal that his sister returned to Nepal during her absence from Australia between [September] 2015 and [November] 2015, that she often goes to Nepal but was not sure if she went to Nepal during her absence between [January] 2017 and [February] 2017, and that she might have gone to Nepal during her absence between [November] 2017 and her return on [December] 2017. The applicant explained that his sister was able to travel to Nepal because no family were aware that she had travelled to Nepal. Mr [C] also confirmed that his wife was currently in Nepal but in answer to the Tribunal’s questions about all other travel, he said he was not sure where she went because he and his wife were separated as at September 2017. The Tribunal did not find Mr [C] persuasive on this point, noting that a significant portion of the travel occurred prior to their separation and is satisfied that Mr [C] was being deliberately evasive about his wife’s travel, most probably because Mr [C] was attuned to the illogicality of suggesting that he and his wife had to leave Nepal because of the harm directed at them by the applicant’s family, yet she had apparently returned there on a number of occasions. Given Mr [C] told the Tribunal that he and his wife share a child, it is even more incredulous for the Tribunal to believe that Mr [C] would allow his child to be taken overseas by his wife but did not know the destination of his wife and his child’s travel. Due to the evasiveness of Mr [C], the Tribunal is satisfied that his wife has travelled to Nepal on all the occasions she has been out of Australia since her marriage and is further satisfied that the evidence was deliberately evasive.
Again, the Tribunal has considered whether the concerns that it has about Mr [C] as a witness have any bearing on whether the applicant is a credible witness. The Tribunal has come to the conclusion that it does. It is the applicant who put forward Mr [C] as a witness of truth and as a witness who could speak about his own experiences of the applicant’s family demonstrated opposition to marriages that are considered inter-caste/non-caste traditional marriages. The Tribunal struggles to accept that the applicant’s sister would return to Nepal on any occasion if she had experienced the same opposition to her marriage as the applicant claimed he had experienced, or would experience if he returned to Nepal. The Tribunal put its concerns to the applicant about the evasive nature of Mr [C]’s evidence and invited him to comment on or respond to that information. The applicant said that his sister did not tell Mr [C] about the travel to Nepal because they were separated and experiencing what could be described as relationship problems. The Tribunal is not persuaded by that response, noting the timing of Mr [C]’s separation from his wife. The Tribunal is satisfied that the applicant’s sister has returned to Nepal on those occasions as outlined in the migration history above, and in the Tribunal’s judgment, this undermines the claims that the applicant’s family have any opposition to his type of marriage. If such opposition existed, the Tribunal is satisfied that the applicant’s sister would not return to Nepal. The applicant’s explanation that his sister could do so because her family were not aware of her return (telling the Tribunal that she was staying with another sister an hour and a half away from the family home), and because she had protections as an Australian citizen is not persuasive. The Tribunal is not satisfied that if the applicant’s family were opposed to the non-traditional type of marriages and relationships that some of their children had, the family would be stopped from acting on their claimed desire to cause harm because one of their children is an Australian citizen. Nor is the Tribunal satisfied that the applicant’s sister would return to Nepal, where it was claimed that her family have previously harmed the couple, undetected because she was able to hide. The return of the applicant’s sister to Nepal is inconsistent with the narrative provided that she was harmed as a result of her relationship and that she and her husband left Nepal because of the opposition. This leaves the Tribunal to conclude that the applicant’s family did not oppose the marriage of his sister to her husband. Given this, the Tribunal is satisfied that the applicant’s family do not oppose his marriage either. The Tribunal is further persuaded by the applicant’s oral evidence that his brother, who he claimed was a source of threats and opposition to his marriage, himself had a non-traditional relationship with a [Country 1] girl when the applicant was younger. The Tribunal pointed out to the applicant that this would be inconsistent with his brother being opposed to the applicant’s marriage, given his brother’s own experience. To the Tribunal’s way of thinking, it would be curious that his brother would have such a fundamental change in outlook. The applicant responded that when his brother started to look after the family home and family finances, his brother changed. The Tribunal is not persuaded by this evidence to account for such a fundamental shift in values.
CONCLUSION
The Tribunal accepts that there has been a media report in the Himalayan Voice from 2010 which reports on honour killings in Nepal and other places. On a fair reading of that report, it is clear that honour killings relate to the murder of a family member by one or more fellow family members because there is a belief that the victim has brought dishonour upon the family, clan or community. In the specifics of the article, it reports on a relationship between two people from different castes which was opposed by the parents of one of the couple, and that the father-in-law of the husband had been charged with murdering his son-in-law. The Tribunal accepts that honour killings can occur in Nepal.
However, in the circumstances of this case, and taking into account the concerns that the Tribunal has noted in this decision, the Tribunal is not satisfied that the applicant’s family oppose his marriage. By extension, the Tribunal is not satisfied that any of the Nepalese community or the guthi would be opposed to the applicant’s marriage, as opposition to marriages which result in honour killings clearly comes from family opposition. The Tribunal is satisfied that the applicant has fabricated his claims for protection, noting the delay in the protection visa application, the return of the applicant’s sister to Nepal on numerous occasions, the deliberate evasiveness of Mr [C]’s evidence about his wife’s return to Nepal, and the provision of clearly fabricated evidence by Mr [B]. The Tribunal is satisfied that there has been an attempt to manufacture a comprehensive narrative to support the applicant’s claims for protection.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant if he were to return to Nepal on the basis of his marriage to Ms [A].
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 4947

6 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction