1610750 (Refugee)

1610750 (Refugee) [2019] AATA 5603 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610750
COUNTRY OF REFERENCE:                   Libya
MEMBER:Rodger Shanahan
DATE:6 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 May 2019 at 12:48pm

CATCHWORDS
REFUGEE – protection visa – Libya – imputed political opinion – supporter of Ghaddafi regime – low level association with the regime – particular social group – homosexuality – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 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 on 22 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Libya, applied for the visa on 13 April 2015..
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 themself 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant is a [Occupation 1] from [Town 1] in Libya, where he had [undertook specified work] and was a volunteer in the army for a year. The town is a [stronghold] of the Gaddhafi regime and it was too dangerous for him to return. Most of his relatives who were studying abroad were captured by gangs from Misrata when they arrived (Misrata has an airport). H didn’t know if any relatives were dead or alive at this point.
His uncle had been in jail since 2012 and some other relatives who travelled by car disappeared and they were found dead – it is believed gangs threw them in the sea or in some other discrete place.
In 2012 Misrata gangs attacked [Town 1] and killed lots of people including children and old people who couldn’t defend themselves. His hometown still suffers from gangs and many young people are kidnapped and killed, and the new government humiliates his town.
Some people from Misrata are threatening his brothers from time to time because they were fighting with the al-Zantan group against Misrata. His brothers couldn’t leave [Town 1] as there was another gang in Tripoli that captured innocent people – they captured his cousin and robbed him.
His father’s car was shot at and disabled by a Misrata gang, an immediate cousin was shot, [was] detained and the gang asked for USD [amount] to free him. Another immediate cousin was raped in his house and robbed. He has many relatives who worked for Ghaddafi, and one of them was a very high rank in the military. Most were now in exile or had their property taken.
If he returns to Libya he would surely be killed as he would land in Misrata and then be taken straight to the prison, and be tortured. The previous month his brother [Mr A] was kidnapped from his house and he remains imprisoned.
AAT Hearing
A number of documents were handed to the member prior to the hearing and they were gone through with the applicant. He was asked where the original death certificate of his parents and brother was, and he said that his friend in [Country 1] translated the death certificate and sent it to him through the computer. He said that he would bring the original – he had sent the original to his friend in [Country 1] and had it translated. The original was with a friend in Adelaide. Asked why he didn’t have the original, he then clarified to say that his brother in Libya had the original and his friend had a photocopy.
The applicant claimed that if he returned to Libya he would be tortured and killed by a militia in Tripoli. His family was thought to have supported the Ghaddafi regime. He was in the middle of coming out as gay and had been seen and he would be stoned to death in Libya as he came from a very religious country. The police, army, militia or ISIS would do this. Whoever would get to him first. He had no other claims.
He claimed that Libya was in a chaotic situation and there are no rules. He would be asked why he had been overseas for so long and he would be reported as someone who supported Ghaddafi in Australia. He didn’t join the anti-Ghaddafi protests in Australia. He was from [Town 1], the biggest supporters of the Ghaddafi group in Libya. While he was in Adelaide, three people from Misrata threatened him as a result. This was in 2011 and he never reported this to the police as he wasn’t concerned and was new to Adelaide.
Since 2011 he had moved to Sydney (where there was not a big Libyan group). He had not received any more threats from these people as they had moved back to Misrata from Australia. His father and relatives worked with the Ghaddafi regime. Asked to be more specific, he claimed that his father was in the army and most of his relatives [provided security]. His father was a soldier (not an officer) and was in for a long time, 15-20 years. It was put to him that the Libyan army was huge and his father was only a soldier so wasn’t important.
He claimed that his father was retired as he had been in the early army and was given a flat and car and had left the army in the 1980s. It was put to him that he had been out of the army for 25 years and wasn’t an officer so he was asked why he was of interest to anyone. He claimed that people didn’t like those who had supported Ghaddafi in the past – it was again put to him that he was just a soldier. He claimed that anyone involved with the regime was targeted.
His other relatives; one was [Mr B] and lived in [Country 2] and was very close to Ghaddafi. Asked what type of relative, he claimed he was a first cousin. Asked which uncle he was a son of, he then said he was from the same tribe. The member explained the difference betweenWestern and Arab versions of what a cousin was, and determined that [Mr B] was from his tribe and his tribe numbered in the hundreds of thousands. It was put to him if [Mr B] was from the tribe, why would they appear to be connected.
The applicant claimed that [Mr B] got him to into the regime, where he enlisted and trained once a month. Asked if it was compulsory military service, and he said it was voluntary. It was then clarified that there was conscription but then you could stay and do service one time a year after your conscription and you got benefits. He did this [for a couple of years]. People who did this got preferential treatment for mortgages, cars and the like.
After the war he hadn’t been in contact for eight months but then he went for a visit for two months. It was put to him that it was a bit dangerous for someone so connected to the regime to go back after Ghaddafi had been executed. He claimed it was very quiet straight after Ghaddafi’s death, but then got a bit worse and he left.
Asked why he didn’t go to [Country 1] and meet his family there to avoid the risk to him and they could get there without a visa, he claimed he had [a large number of] siblings and children, and it was dangerous and difficult to travel. It was put to him that he had just said the area was calm which was why he went there in the first place. He then said it was just easier for him to travel there rather than them to travel to [Country 1]. He was asked why he needed to catch up with everyone at the same time and his parents would have been the priority.
He claimed that he was willing to take the risk to see his family they had no idea he was coming. There was no internet and no telephones. He was asked to provide country evidence that this was the case. He was asked if he had seen what had happened to Ghaddafi when he was captured and he said he had. It was then put to him that he must have been concerned about what would happen to Ghaddafi supporters if this had happened to Ghaddafi, and the applicant claimed he didn’t think Ghaddafi supporters would be targeted, just the Ghaddafi family..
He was asked why he believed he was so special that he would be targeted. He claimed that his parents and brother had been killed and it was no longer safe. He had heard that the news in 2016 that people had been killed between Tripoli and Misrata and it was his parents and a brother. Some militia had stopped them in July and then cut them up. Asked if he had any report of this incident, he claimed that he had death certificates. His father was born in [year]. Asked why they would target a [age] year-old, he claimed that gangsters did it. He found out about it from his cousin. There was no media because the world wasn’t interested in Libya. It was very dangerous to travel.
He was asked why this would happen five years after the event and not before if his family was so well known. He claimed that his family lived in Tripoli and [Town 1] and it was not safe to travel – his youngest brother had been kidnapped by militia. He was asked again about why his father was not targeted despite being in a Ghaddafi-funded apartment, and he claimed that people wer just stuck in their house not moving and hiding. When he was asked if he did this for five years, he said yes. His family had been stuck in [Town 1] for nearly a year and a half. There was an ongoing conflict between the militia.
Asked what [Mr B]’s job was, he said it was a [Occupation 1] and then said he also gave him advice about issues. It was put to him that [Occupation 1]s[do specified work], advisers gave advice. He claimed they called them [Occupation 1]s and was already around Ghaddafi and did charity and worked in the [company]. He had a high rank in the military and was always in the plane with Ghaddafi wherever he travelled. It was put to him that he was being confusing, saying [Mr B] did five things from being a [Occupation 1] to being a high-ranking military officer. He was asked to clarify what job [Mr B] had in the regime.
He claimed he was a [Occupation 1] but also had people underneath him to recruit additional [staff] for Ghaddafi. The Tribunal said it was familiar with Middle Eastern militaries and [Occupation 1]s were the same the world over, so was asked what job [Mr B] was doing. He then said [Mr B] controlled all the army in Tripoli. He was asked if he was the Tripoli military area commander and he claimed this was correct. He was asked why the Tripoli area commander would travel to the south and areas outside of his area, and he repeated that [Mr B] was important and travelled with Ghaddafi everywhere.
He claimed that his brother was kidnapped, two parents killed and two sisters now had [a medical condition] because they had become scared from the noise of the guns and missiles. The shock and anxiety caused the [disease]. He agreed he wasn’t a doctor but said he had read this somewhere. He was cautioned about the need to present credible evidence.
He claimed he felt different when he was [age] or [age] and when a girl tried to kiss him when he was [age] he felt nothing and felt something was wrong. When he was [age]/[age] he lived in a block with many other children. Another friend [Mr C] used to study together and watch TV. One by one they used to watch porn and then began to practise a non-serious sexual relationship then slowly, slowly it built up.
They were hanging around with another school friend and he and this friend were in a tent and talked about sex and by that night they began touching each other and then until he was [age] he had sexual relations with [Mr C] and his other friend [Mr D]. Whenever they had time off from school or slept over at each others’ houses they continued it. When he was [age] [Mr D] left for university but he and [Mr C] continued their relationship.
He tried to find gay communities in Libya and he knew from his family that it wasn’t tolerated. When he came to Australia he was wondering how to interact. In Adelaide he googled gay bars and the like. He went to [a specified gay bar] and was messaging on [social media]. He met someone who told him about gay apps and he got to know many people. He hung out with [Mr E]. He used [a specified gay app] and showed the member on his phone. He showed conversations with people on [the gay app]. It was put to him that it appeared to be one-word comments and not conversations. He claimed that people just text him.
He was asked if he had any proof of any relationships. He showed the Tribunal one string involving [Mr F] who he claimed was a close friend. He left at the end of 2017 but was due back next week. He tried to have a relationship with [Mr G] but he was scared to go further. [Mr F] didn’t want to commit to a relationship because he thought he would be a strict Muslim and he wasn’t a citizen and may leave.
Asked if he had any email exchanges, not an app or [social media] that would show correspondence over a loing period of time. He said that he had [Mr F] on [social media]. Asked if any person physically came to support him, he claimed that there were email addresses. It was put to him that email addresses were anonymous and it was concerning that nobody came to support him that could be questioned to determine his sexuality. He claimed they all offered to answer questions via email and come and he was told that he could have asked them here.
He had gone to previous mardi gras and went to Victoria Park and said that he had photos of past years. He was asked if he had any contact with gay groups that could verify his sexual identity, and he said that he didn’t. Asked if he knew the names of any groups he said that there was Pink Mountain and another one (couldn’t make the name out on the recording). He was asked if he knew the names of any Arab-language gay groups goiven it made communicating easier.
He was asked why he hadn’t, he claimed that he wasn’t interested in Arabic groups, only Western ones. He was asked why he didn’t engage with Western gay groups, and he claimed that he went for a bushwalk [with a group]. Asked if he had mentioned his homosexuality when he originally applied, he claimed that his lawyer was someone who grew up with him as a child but they dealt with Libyan people and he didn’t want to tell her.
He claimed that he was very nervous to tell anyone but eventually told his lawyer. He was asked why he could be so nervous about telling anybody else about his sexual orientation (or putting in a protection claim) and yet he had no problem in going to gay venues in Adelaide after he arrived, as this raised questions in the Tribunal’s mind about the veracity of his sexual orientation claim.
He claimed that he was scared if he applied for protection the Australian government would tell the Libyan embassy and his government would know. Asked if he checked with the department whether the application as confidential. He claimed that he was scared and he thought they would ask him for his name and identity details – he was asked again why he thought this would happen given he could have asked these questions anonymously. He said he was scared and it wasn’t until he came to Sydney that he got the courage to apply.
He was waiting for his [assessment] to be marked at [University 1]
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] February 2012. He applied for protection on 13 April 2015.
The Tribunal has sighted the applicant’s passport and is satisfied that he is a citizen of Libya. He is a [age] year-old single Libyan male. He claimed that he feared being killed by militias from Tripoli because his family was thought to have supported the Ghaddafi regime. He also feared being stoned to death by the police, army, militia or ISIS because he was gay.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Claimed Homosexuality
I do not accept that the applicant is, or would be perceived to be gay. Whilst there is not a single test that can prove whether one is actually homosexual or not, this decision is based on the vagueness, lateness and lack of substantiation of his claim. To begin with he never made any reference to being gay, let alone fearing serious harm because of it, in his original protection visa application.
Despite claiming to be gay in Libya and allegedly exploring his gay identity in Adelaide he waited for more than four years to apply for protection and then nearly five years until he claimed that he was gay. I do not accept that this was because he was too nervous to tell anyone but eventually told his lawyer, or that he was scared to do so because he feared that the information would be relayed to the Libyan embassy and onto relatives or the authorities in Libya.

His claim about being nervous to tell people about his homosexuality is inconsistent – claiming at once that he would be too nervous to tell people about his homosexuality in a confidential protection claim, yet not too nervous to allegedly go to and have photos of him in gay venues, use gay dating Apps and have gay sex with several men.
He was also vague on why he thought the Australian authorities would tell the Libyan embassy about his protection claim. He is a highly educated man, who has undertaken postgraduate coursework and now a [higher qualification], so it is reasonable to believe that his research and language skills would have made it easy for him to approach and confirm with Australian authorities whether his identity would be protected when he made a protection visa application. His inability to do so is inconsistent with his level of language and research skillas.
I have taken into account the evidence he submitted yet lend it little weight. He has submitted photos in a gay venue where he appears to also be in the presence of a woman (folios 92, 95), showed some comments on a [a gay app] on his phone, and some emails from people (folios 81-83) who claimed to have had sex with him.
Simply attending a gay venue is no indication that the person is gay themselves. The [gay app] comments could have been written by anyone and appeared to be one-word comments and not conversations. And the emails appeared to have been sent to, and then forwarded on by someone using the email address [Alias 1].
I do not accept that he was messaging on [social media] or any other publicly accessible social media platform, as no evidence was presented to support the claim. The photo from ARQ (Sydney – folio 95) does not appear to have been taken from any social media site, nor does the other photo (folio 92) which also has no features that would identify it as being from a gay club or that he is in the company of gay men. As a consequence, not only would nobody have seen them on publicly available platforms, I am satisfied that given their content he would not have been perceived him to be gay even if they did.
Libyan militia groups
I do not accept that the applicant would be tortured and killed by the militia in Tripoli because his family was thought to have supported the Ghaddafi regime. Before going further in discussing his claims, it is necessary to provide some context to the applicant’s use of the term ‘cousin’. He has used this often throughout his claims to denote actions taken against his family or to describe members of his family and their role in the Ghaddafi regime.
The member is familiar with Arab culture and, when pressed during the hearing he agreed that he referred to someone from the same tribe as his ‘cousin’. Country information indicates that the residents of [Town 1] belong to [Tribe 1], which itself allegedly accounts for a quarter of the Libyan population.[1] Hence, when the applicant refers to someone as his cousin, it may well mean that it is someone who shares the same tribal affiliation as that of a quarter of the population and it should not necessarily connote closeness let alone a familial link as the term ‘cousin’ normally would.
[1] [Source deleted]
Whilst I accept that [Town 1] remained loyal to the Ghaddafi regime until the end of the Libyan uprising and that the applicant was in receipt of a Libyan government scholarship, country information[2] indicates that because the Ghaddafi regime had been in power for 42 years, it is unlikely that Libyans with low level association with the regime would face discrimination on return to Libya and that recipients of government study abroad scholarships face a low risk of violence or discrimination on return to Libya.
[2] DFAT Country Information Report – Libya, 14 December 2018, pp 28-9
I do not accept that he would be targeted because his father and relatives worked for the Ghaddafi regime. I have noted above that it is unlikely that simply working for the Ghaddafi regime would result in discrimination. By his own admission, his father was never an officer and the applicant himself simply did his conscription and some reserve duty (because of the accrued social benefits).
I do not accept that the applicant had a cousin who was a high-ranking military officer who was close to Ghaddafi. He was vague about many things regarding this claim. He clarified that this person was from the same tribe and not his cousin, and then he described him variously as Ghaddafi’s [Occupation 1], adviser, military commander of Tripoli, that he worked in [a] company and gave charity.
I do not accept that his uncle had been in jail since 2012, other relatives had been disappeared and found dead after their car was stopped, that his brothers were threatened because they fought with the al-Zantan group against Misrata, that his father had his car shot at and disabled or that two immediate cousins had been kidnapped and raped respectively. I also do not accept that the applicant’s parents and one brother were stopped at a checkpoint and dismembered/cut up.
Nearly all of these accounts rely solely on the applicant’s oral testimony, which I have found lacks credibility. I have taken into account the papers that he claimed were death certificates for his parents and brother but lend them little weight. Country information indicates that during the Ghaddafi era fraud was a major problem as documents had few, if any, security features and were usually handwritten.[3] The documents provided are handwritten in pen and they give no cause of death. Even if they were genuine (which I have not accepted), in the absence of a cause of death stated on the certificates, their deaths could have been caused by any number of reasons..
[3] Ibid, p 47
There is no corroborating evidence such as press or NGO reports of three people being dismembered in 2016. The applicant claimed that the world wasn’t interested in Libya and hence there was no media. Yet a quick internet search found a report about one dismembered body that was reported in 2018[4] – if a single body was enough to generate a short media report then it is reasonable to believe that if three people had been dismembered on a road and a government death certificate issued then there would have been some announcement of it.
[4] accessed 29 April 2019
I also do not accept that the applicant was threatened by three people from Misrata, while he was in Australia, for not joining anti-Ghaddafi protests. This again relies entirely on his oral testimony, as he never reported the incident to the police in Australia. I also do not accept that two of his sisters had [disease] from the shock and anxiety caused by noise of the guns and missiles. This was based not on any medical knowledge or qualififcations but simply ‘on something he had read somewhere’.
I also note that the applicant voluntarily returned to Libya for two months from the end of 2011 into February 2012. Whilst I accept that the applicant would have been concerned for the safety of his family, it appears inconsistent with his claim that his family were so closely connected to the Ghaddafi regime and yet he would fly into Libya after the overthrow of the regime. He has a large family so there are other brothers who can look after the family, and he could have arranged to meet some of them in [Country 1] rather than in Libya if things were, as he claimed quiet after the fall of Ghaddafi.
I do not accept that his family were unaware of his arrival because there was no internet and no telephones. He was asked to provide evidence to support this post-hearing. What he did provide however (no folio) is from Wikipedia and says only that it occurred for a few hours at a time on some days in February and March 2011, well before the applicant arrived. And the same information also said that the mobile phone network appeared largely unaffected.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is or would be perceived to be gay, or that he had a relative who was a high ranking officer in the Ghaddafi regime, that any of his family members have been killed and dismembered, kidnapped or raped, or that he would be tortured or killed because his family were considered to be members of the Ghaddafi regime or because he had received an overseas study scholarship, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
I have taken into account country information that while security conditions vary across Libya, the overall environment is poor. I also note however, that this is a risk that is faced by the population generally, and not by the applicant personally. Despite his claims to the contrary, I am satisfied that the applicant’s family has lived in [Town 1] in the eight years since he left without being targeted. This indicates that the applicant’s family is not of interest for any real or perceived connection to the Ghaddafi regime.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Rodger Shanahan
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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 5603

6 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Standing

Appeal