1610753 (Refugee)

1610753 (Refugee) [2019] AATA 323 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610753
COUNTRY OF REFERENCE:                  Jordan
MEMBER:Rodger Shanahan
DATE:8 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 February 2019 at 11:38am

CATCHWORDS
REFUGEE – protection visa – Jordan – threats from family of girlfriend – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
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 16 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 Jordan, applied for the visa on 12 March 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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CLAIMS AND EVIDENCE
PV Application
The applicant claimed that he had been in a long-term relationship with a woman named [Ms A]. She became pregnant to him. Prior to the pregnancy he had asked for her hand in marriage on several occasions but was refused. Her [family members] have important positions in the Jordanian government and wanted her to marry from within the family. She refused to marry others and her father suspected their relationship continued and warned the applicant away.
After the pregnancy [Ms A] ran away to avoid either of them being killed or of him being falsely accused of rape. Her family members came to his family home, threatened them with death and attacked his brother. He was in Amman at the time and left work to hide at the home of a friend.
Since he left [Ms A]’s family had forced the applicant’s father to sign an agreement that the applicant could be targeted for killing as an honour crime (in order to save the rest of the family). His father had since disowned him and he had no contact with the family.
AAT Hearing
The applicant was told about the presence of a s 438 certificate that was considered valid and related to a legal matter with the [Police] and another issue that would be raised later in the hearing. He was asked about a matter in which he had been charged in the [Courts] and he claimed that there was no conviction – he was asked to provide written evidence about the case post-hearing. He was told that there would be another issue related to the certificate raised later in the hearing.
He claimed that he was a wanted person and people from villages would kill him. They were from the village of a girl ([Ms A]) he formed a sexual relationship with. There was an agreement between his family and [Ms A]’s family that if the applicant was killed then his family would take no action against [Ms A]’s family, as long as no other member of the applicant’s family was harmed. The agreement was made in August and finalised in January 2015.
His family knows he is in Australia and he doesn’t know about hers but he received a threat via [social media] in 2015 saying they knew where he was. He told his lawyer and they said he needed it translated. It was put to him that this three and a half years ago and he said his lawyer thought it was in English. The applicant did not have a copy to give to the Tribunal. The threat was from her cousin. Her family consisted of [large number of] people – he was asked what family had this many people and he claimed there were tribes this big. He was asked whether he was talking about a family or tribe member, as a cousin was a family member. If he was talking about a tribal member he should say this.
He was again asked who made this threat and he said it was from someone who knows her – they were related but he didn’t know in which way. Asked how he knew they were related, he claimed that this person knew a lot about her. Asked if he was just assuming they were related, he claimed the person was accusing the applicant of dishonouring the [social media] author’s family, therefore he must be a family member. The applicant could not, however, produce the [social media] page.
His father had told her family that he knew nothing about the applicant and they could kill him. He hadn’t had contact with his father. Her family knew he was outside Jordan but he didn’t know where.
The applicant met [Ms A] at university when he was in [a certain] year and they were in a lecture and began talking. This was in June 2011 – seven months later their sexual relationship started. She was between [age] and [age] and was born on [date]. Her name was [Ms A]. He was planning to marry her so never thought anyone would find out. Things were good and he graduated and got a job. He asked her family to see her family.
He would live in university about [number] days a week and they would meet there. He graduated in June 2011. It was put to him that he met her in June 2011. He then said he met her in June 2010, not 2011. He got a job [in] Amman and asked his family to propose – his mum paid a visit to her family at the end of 2011. He still lived in Irbid at the family home.
Her family said they would answer after a week but when the time came they didn’t approve. They were told it was not their destiny to be together. He went to work and when [Ms A] came to Amman to visit her sister, they would meet at a friend’s house. It was hard to meet at uni as he worked five days a week – [Ms A] came to Amman once a month as this was as often as she dared come.
He asked his family to propose again at the beginning of 2012. His mother refused because of their first refusal but they didn’t understand they had had sex. He then called [Ms A]’s father and asked to meet, they sat and talked but he refused to let them marry as he wanted her to marry their cousin. The applicant knew she had already refused her cousin’s proposal once and asked her mother to marry the applicant.
Her cousin warned him away from [Ms A] but after a month he went to her family again. Her family became suspicious as she continued to refuse their arranged marriages. This was in January 2012 and her family began to pressure her more, restricting her movements. They said she could only go from the house to university.
After February 2012 he only saw her two or three times; in June and perhaps one other time. Her family found out about the relationship. Her cousin and some of her family are in [a specified government agency] but he didn’t know their position as nobody knows what they do there. He was asked how he knew they were in the [government]. He was asked how he knew they were in [government] if it was so secret and he said he would tell the Tribunal.
In June he was going to work and just short of work, he was pulled aside by the police after he got off the bus from Irbid. At the gate of the [place] where he worked, he was asked if he was the person on their form, and then took him to the police station and detained him for two days without any explanation. He was released as they said they were after a different person.
He met [Ms A] in May then in July then she warned him she had a cousin in [specified government agency]. Asked how she could get to Amman of her movement s were restricted, he claimed she just visited her sister in Amman if necessary. He saw her in May, July and December 2012. It was much easier than this previously and they met monthly. She had to come up with big excuses to get out. In July she overheard her father say ‘just get him out of the way’.
He couldn’t believe this could happen as he was from a well-known tribal family. In [month] he was in jail again. He was in jail [few months later] again but this was hard as he was beaten and nobody told him why he was there. This was more than a mistaken name and they sought to hurt and humiliate him. He received a call from her cousin who asked him how the prison was. He laughed and threatened to demolish him if he maintained contact with [Ms A]. He became very cautious after this.
He thought about going to a sheikh with [Ms A] and getting married but no sheikh would do this for them. There was a big problem for them because they had slept together. He thought for days about what to do. She called him in December (she had previously called him from her friends’ or sisters’ friends and then delete the record of the call) and said they had to meet in Irbid at a particular street. He went to this place and met her and she told him she was pregnant – he was shocked. Without pregnancy she would have rejected all suitors.
He told her they had to see a doctor and they looked around in the street and found a doctor. He doesn’t know if she had a baby as there was no contact between them. There was contact via [social media] and she said she was in [Country 1], was married and there was no baby. She now blocked him after he had requested more information.
At the end of 2012 his mother called him at work and asked if [Ms A] was with him as people came to the family house looking for her and then hit the applicant’s brother. He got a new number for his phone and rang [Ms A] but her phone was turned off and he realised she had run away. He told his mother he wouldn’t be back and went to live with a friend in Amman at the end of December 2012.
He was afraid to walk down the street as they told his mother they would kill the applicant if they saw him. He stopped work at the end of December 2012 as well. He didn’t resign, he just stopped going to work. [Ms A]’s family came to his work and his supervisor advised him to stay at work. He was nervous staying at home as he was worried at his situation.
He didn’t have a passport at this stage as he wasn’t planning to travel. He got a passport once his friend suggested he travel overseas. It was about a month after the incident or in February – the problem in Jordan was that it was a long process to obtain a passport in Jordan. It is a different system in Jordan – in Australia one can get a licence in 14 days.
His friend suggested an agent and that he should go to Australia as it was far away and that he could study and return to Jordan later when things were calmer. He was asked what the date of his passport issuance was and he said it was [in] 2013. It had now run out of date and hadn’t yet been renewed.
It was put to him that he must have been very keen to leave Jordan given what had occurred to him and he claimed he was looking for other solutions other than leaving as he didn’t want to leave his family. They looked for some other family to reconcile them but no one would do this. Asked when he became convinced he had to leave Jordan, he claimed he didn’t know exactly but around January 2013. It was put to him that his passport was issued [in] 2013 and he claimed it took a long tme for the passport to be issued, so he must have been looking to get a passport to travel sometime in December. He was asked again when he thought about traveling outside Jordan.
He claimed he applied 20-25 days before he got the passport. It was put to him that he had claimed it was very complex to get a passport in Jordan and took a long time, now he claimed it was 20-25 days. He claimed this was a long time compared to Australia as he thought it was issued here in a week. He was asked why he thought one could get a passport a week in Australia, and he claimed his ex-girlfriend told him.
It was put to him that he wanted to leave the country because he felt unsafe to which he agreed. It was put to him that as at [date] he could leave the country, and was asked what countries he knew that he could enter without a visa. He claimed it was Syria, Iraq, Egypt and he was scared to go to a weak country and the government might return him to Jordan. He was asked what countries he knew he could go to visa-free as the Tribunal wanted to be sure he had researched his options. He claimed there was also Somalia and Mozambique – Australia was a suggestion from his friend.
It was put to him that he was a university-educated adult, so he was capable of searching for information. He was asked what countries he had identified (if any) that he could enter and apply for asylum without needing an entry visa. He claimed that he was confused at the time and his friend suggested where to go. He didn’t do any research himself. He was asked what he was doing given he didn’t go to work, was university educated, had a passport and yet his friend did the research. This raised questions as to how desperate he was to leave.
He thought about protection when he was in Jordan but it didn’t occur to him to leave the country. He was also thinking about his family, [Ms A] and the baby. There was a war between the families so he tried to stay inside the country. After he had his passport he saw the agent to go to Australia for study. He was terrified to go to the university to get his papers. He got the passport specifically to come to Australia, and applied for his visa maybe three days later.
He stayed in his brother’s [apartment] (it’s in his brother’s name but he doesn’t live there). He lived her for about a month (he stayed in his friend’s around 25 days). He left Jordan in April 2013. It was put to him that he must have stayed at his brother’s house about three months, not one. He said he stayed here until his visa was approved. It was put to him that he stayed at his brother’s house for three months, and had people in the [government] looking for him yet they never found him. This raised questions about whether anyone was after him.
Once he turned his mobile phone on they could geo-locate him as well. He claimed he wasn’t a terrorist and they were watching his workplace, his family and his brother’s house but he never stepped outside his brother’s apartment in these three months. He claimed that at the time he didn’t believe they had the technology to geo-locate him. Asked what he based this belief on, he claimed that his phone was always turned off so they couldn’t know where he was.
From December until his visa was issued he never used his phone and he changed his sim card before he rang his agent. It was put to him that his handset, not his sim card would be geo-located. The member had some experience in these issues given his experience in the military. Jordanian [government] should be able to geo-locate him and determine he was inside his brother’s house. He claimed one could buy a sim card without registering it and he had a [specified phone] not an iPhone. He also claimed he wasn’t sure what department [Ms A]’s cousin worked in so it would be a very hard issue to get them to geo-locate him as he was not a terrorist. This was just a family case and he wouldn’t be given this.
It was put to him that he claimed her family members were important members in the government and they had got the police detain him twice and beaten up once for a simple family matter which appeared to be inconsistent with the claim it was just considered a family matter. He had no problems getting a GID clearance for his passport or leaving Jordan – he claimed that the problems occurred after he left Jordan. He claimed that he was detained without a court order and simply because a senior person told a junior person to carry out a task because they had influence.
He was asked where his brother’s house was and he claimed that it was in [specified location]. When he moved here, there were many areas. When he applied for his visa he stated he lived in Irbid.
He was asked if he had any photos at all from university or anywhere that would indicate they were boyfriends and girlfriend, and he claimed that there were no photo capabilities on mobile phones at this time. When it was put to him that there were in 2011, he then claimed he couldn’t afford the phones with this capability.
He was then advised about s 424AA and it was put to him that he told the Tribunal he met [Ms A] in June 2011, later revised to June 2010 but he told DIBP it was June 2007. He told DIBP her birthday was [date] and at the AAT he claimed it was [date]. These inconsistencies, and the absence of any communications or visual evidence could call into question his credibility and whether any person called [Ms A] exists or if there is, whether he ever had any relationship with her.
He claimed he may have been under stress and she was born in [date] and they met in 2007. He was perhaps confused because of the stress, and that in Jordan girls they do not take photos and put things on social media. It was put to him there were lots of girls in Jordan who put their photos on social media, and he claimed this may be the case with high and privileged areas but those from poor village areas they would not.

Under s 424AA it was also put to him that he had claimed when he applied for his visa he told the embassy he lived in Irbid, yet the residence he gave them was in Amman. He also wrote a letter in support of his application in which he said he lived in Amman. Also as part of his student visa application he claimed that he was working in [a company] from 2011 until the time he submitted the application. There was an inconsistency in his evidence regarding his residence which may also go to issues of his credibility. The other piece of information considered relevant that related to his s 438 certificate was a document from the Australian embassy that said he lived in Amman.
He had also given the Australian government a document saying he worked at a business where he claimed that he hadn’t worked for two months so he had either given the embassy a false document or hadn’t been truthful in saying he stopped working. He was given more time to respond as per s 424AA but did not request any. He claimed when he applied for his visa he was asked where he lived at that time so he said he lived in his brother’s place but he never considered this his home address. He was asked why he didn’t explain this in the letter he wrote to the embassy, and he claimed that the situation didn’t allow it as it was secret and he didn’t know he had to explain this level of detail.
Regarding his employment, he claimed that while he stopped working at the company he didn’t resign until he came to Australia. His brother resigned for him and took all of his entitlements. He didn’t know he had to explain this to the embassy – he still considered himself an employee of the company. Asked if he had correspondence with the company since he had left (his resignation, back pay, emails etc), he claimed he received nothing from his brother but he could send paperwork if requested.
Also under s 424AA it was put to him that as a Jordanian he could have travelled to countries such as Georgia, Armenia, Indonesia, Hong Kong, Tunisia, South Africa without a visa. Armenia has a developed asylum-seeking process that could lead to citizenship, so there was concern that his actions as someone with a fear of their life in Jordan. It was put to him that he was unaware of his protection options and took months to apply for an expensive education visa that took a long time to be approved, and never took up the course of study. The Tribunal had concerns that he was never under any threat in Jordan, and his whole aim had been to get to Australia, perhaps for economic reasons, and that the whole claim may be fabricated.
He claimed that there were differences in the circumstances between Jordan and Australia. In 2013 he had no internet – he was too scared to leave the house so couldn’t even go to a coffee shop. He used to work and had a good salary and his parents were secure so he wouldn’t have voluntarily left Jordan for this period and be away from his family.
He entered Australia in April 2013 and didn’t apply for protection for nearly two years. This raised questions as to whether he feared serious harm given the lengthy delay he had in applying for protection. He claimed he was never thinking of applying for protection and wanted to study and hope that things would be resolved in Jordan. His [study] was difficult but it wouldn’t allow him to do [a higher] degree so he began to study a [different qualification]. Part way through his study his sister got into contact with him. The two tribes (his and [Ms A]’s) in Jordan got together in Jordan to decide the fate of his situation. His brother-in-law called him and said the applicant’s sister couldn’t talk to him and the families had signed a document regarding his fate. He became very stressed at this point and then he searched for lawyers who told him that he needed to apply for protection. He was lost as he didn’t know the laws and that he was illegal in Australia, and he had an accident while here.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] April 2013 (valid until [March] 2015). He applied for protection on 12 March 2015. The applicant is a [age] year-old single Jordanian national and his application will be assessed as such. He claimed that he would be killed by the family of a girl with whom he had sexual relations if he were to return to Jordan. He had no other claims.
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 entire claim and lied under oath in order to be granted a protection visa.
Alleged girlfriend
I do not accept that the applicant was ever in a relationship with a girl called [Ms A]. To begin with, he never provided any independent evidence that such a person existed. There was no record of any correspondence (either electronic or paper) with her. Nor were there any photos of her. I do not accept that this was because camera phones hadn’t been invented when they met. Camera phones were a feature on [that type of mobile] from 2002[1] and, when it was pointed out to him that they did exist when he allegedly met [Ms A], he then changed his account to claim that he couldn’t afford one. Given this explanation was not proffered immediately but in response to information that invalidated his first explanation, I do not accept it as being truthful.
[1] [Source deleted]
Nor do I accept that she contacted him via [social media] to tell him that she was in [Country 1] and married but then had blocked him. No evidence to support this claim was provided. I also do not accept that girls in Jordan do not take photos and put them on social media. When it was put to him that there were lots of girls in Jordan who put their photos on social media he then said that only women from privileged backgrounds did this, not from the poor area where he was from. Yet a very simple internet search revealed a woman from Irbid wearing hijab in her photos posted on her [social media] page.[2]
[2] [Source deleted]
He was also inconsistent in describing her birthday and when they met. At the Tribunal hearing he claimed that they met in June 2011 but when this was inconsistent with his graduation date he claimed that it was June 2010. He had previously told the DIBP during his interview that they met in 2007. He had also told DIBP that [Ms A]’s birthday was [date], yet at the Tribunal he claimed that her birthday was [date]. I do not accept that the discrepancies are due to the stress of his situation but, in combination with the lack of any evidence as to [Ms A]’s existence, a result of his own confusion over the details of his fabricated claim.
Because I do not accept that the applicant ever had a sexual relationship with someone called [Ms A], It follows that he never made her pregnant, there was never any dispute with her family or between her family and his, he was never disowned by his family, his family house was never attacked and his brother assaulted, he was never detained and/or assaulted by the Jordanian security authorities, nor was any threat message sent to him via [social media] in 2015.
His actions following the alleged detentions and beating and threats to him are inconsistent with the harm he claimed to fear. Despite having his passport [in] 2013, he remained at his brother’s residence until he left in the middle of April 2013. Despite there being a number of countries that he could have entered the day after he received his passport without the requirement for a visa, some of which would allow him to claim protection, not only did he not attempt to do so, he appeared completely unaware of these as options.
I also do not accept that [Ms A]’s family came to the applicant’s work and his supervisor told the applicant not to come in any more from the end of December 2012. Yet in his student visa application from 24 February 2013 he provided a letter from [a company] saying that he was employed there ‘till now’. Although he claimed that he resigned after arriving in Australia, he is not able to provide any correspondence between the applicant and the company in question. Although he claimed that his brother looked after this aspect, it lacks credibility that the applicant and the supervisor (who obviously had some concern for the applicant) would have no contact whatsoever about the terms of his resignation, what he was owed or the like.
I do not accept that he was too scared to leave the house and therefore he couldn’t enter an internet café to research the subject; he was in communication with a friend and a migration agent, either of whom could have done this on his behalf. Rather, he undertook a lengthy and expensive visa application process to undertake a [course] he never took up on arrival. His lack of urgency in leaving Jordan supports the view that his claim to fear serious harm has been fabricated.
Likewise, his delay of nearly two years before applying for protection whilst in Australia provides further support to the finding that his claim has been fabricated. I do not accept that he delayed because he thought things would be resolved in Jordan, that he didn’t know the laws or that he had an accident. Given he was allegedly too scared to leave his brother’s house in Amman prior to coming to Australia, it is reasonable to believe that as a tertiary-educated adult he would have been able to research options open to him to be granted protection in Australia (including the applicable laws) or simply to have sought out a lawyer much earlier. The vehicle accident was not a serious one and he appears to have been given analgesia at hospital emergency and released (folio 80).
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 s 5H reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever was in a sexual relationship with a girl called [Ms A], that he was ever detained and beaten in Jordan, has been threatened to be hurt by anyone, or that his family has disowned him I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I 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 Jordan, there is a real risk that he will suffer significant harm.
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 323

8 February 2019

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Immigration

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Statutory Interpretation

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Procedural Fairness

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Natural Justice

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