1611066 (Refugee)

1611066 (Refugee) [2018] AATA 5394 (1 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611066
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Christopher Smolicz
DATE:1 November 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 November 2018 at 11:05am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – Janatha Vimukthi Peramuna supporter – particular social group – single unmarried woman – evidence vague and lacking in detail – state protection available – delay in applying for protection – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 6 July 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 Sri Lanka, applied for the visa on 11 November 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue raised by the applicant in this matter is whether she meets the refugee criterion or comes within Australia’s complementary protection obligations because:
·     her brother was suspected of being a Janatha Vimukthi Peramuna (JVP) (now known as the People’s Liberation Front party) political activist
·     she fears a former Sri Lankan politician ([Mr A])
·     she will be returning to Sri Lanka as a single woman.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [an age] year old Sinhalese woman. She was born in Colombo, Western Province, Sri Lanka. She has never married.
She first arrived in Australia in June 2008 as the holder of a [temporary] visa. She travelled to Australia on a validly issued Sri Lankan passport. She returned to Sri Lanka in [July 2010].[1] The applicant’s [family members] remained in Sri Lanka. One brother has since passed away.
[1] Form 866C question 71.
The applicant’s [temporary] visa ceased [in] March 2012 and she applied for a [permanent visa]. The application was refused. The applicant applied to the Migration Review Tribunal (MRT) to review the delegate’s decision. On 13 May 2014 the MRT affirmed the delegate’s decision. The applicant subsequently applied for Ministerial intervention. The Minister declined to intervene. On 11 November 2015 the applicant applied for the protection visa which is the subject of the current application.
Summary of substantive claims
The applicant declared she left Sri Lanka because she no longer felt safe. She fears that she will be subjected to persecution and mistreatment.
She will be imputed as a “leader” of the JVP party because of her brother’s association with the party. The suspicion arose because her family accommodated two medical students in their home.
She claims that in 1989 her older brother was arrested. He was released after three months in custody. He was placed on bail pending his court appearance. He was told to report to the police every three months.
In 2000 several of her family members were taken in by police for questioning because allegations were made that her family was supporting the JVP.
Since 2000 her family has been under constant surveillance. She claims that her prolonged absence from Sri Lanka will cause further suspicion from the authorities.
During her work with a [company] in Sri Lanka (from May 1985 to May 2008) she came into contact with a person called [Mr A] who was a [government official]. [Mr A] realised she was a single woman and also knew her family had problems with the authorities because of their association with the JVP. She received nuisance telephone calls from unknown numbers and on one occasion her car was followed late at night by unknown vehicles. She suspects the threats were made by [Mr A].
After this incident her family recommended that she depart Sri Lanka due to threats. She knows that [Mr A] is no longer [employed in the same position] and was charged with criminal offences but she still fears him.
She also claims her ex-partner with whom she had a relationship over 20 years ago was a JVP member. She fears her relationship with her ex-partner will bring her to the adverse attention of the authorities. She was also involved with [Organisation 1] in Sri Lanka and fears this will impute her with an anti-government political opinion.
As a single unmarried woman she will not be safe in Sri Lanka and will not be able to move to another part of the country.
She fears that her family will not be able to support her and will find her a burden.
Janatha Vimukthi Peramuna
In assessing the applicant’s claims the Tribunal notes that the JVP is a Marxist party that attempted to overthrow the government of Sri Lanka (then Ceylon) in 1971. The attempt was defeated and the JVP became a legally registered political party in 1977, enjoying significant success during local elections in 1979. However, in the 1980s the JVP returned to guerrilla operations via its military wing, known as the Patriotic People's Movement (or DJV). In 1989, its founder and leader, Rohana Wijeweera and General Secretary Upatissa Gaanayake, were killed by security forces under “questionable circumstances”. According to the Political Handbook of the World, some 50,000 people may have died as a direct result of the JVP/DJV conflict.[2]
[2] T Lansdorf (ed), 2012, ‘Sri Lanka’, in Political Handbook of the World, CQ Press, Washington DC, p.1352 <
By the 1990s, the JVP re-emerged as a political force, and in 2004 it became a member of the ruling United People’s Freedom Alliance coalition. Its main faction remains supportive of President Rajapaksa; however numerous sources describe a significant faction within the JVP that is highly critical of Rajapaksa and sympathetic to the plight of Tamils in Sri Lanka.[3] Some members of this so-called ‘dissident faction’ have been threatened, harmed, and in some cases disappeared and/or killed.
[3] Asian Human Rights Commission, The State of Human Rights in Sri Lanka in 2012, AHRC-SPR-011-2012, 2012, p.96 <>
In December 2011, two activists associated with this faction of the JVP disappeared while on a trip to Jaffna to organise a protest against disappearances.[4] According to the US Department of State, Lalith Kumar Weeraraj and Kugan Muruganandan disappeared in Jaffna after leaving their residence; “Weeraraj had been active in raising human rights concerns faced by the Tamil people, such as disappearance and detention issues. He was threatened, assaulted, and detained by security forces on previous occasions”.[5]
[4] International Crisis Group, Sri Lanka: Government Promises, Ground Realities, 1 March 2012 <
[5] US Department of State, Country Reports on Human Rights Practices 2011 – Sri Lanka, 24 May 2012, Section 1.b.
In June 2012, two people were shot and killed by “a group of unidentified men on motorcycles” who opened fired on a JVP meeting in Katuwana in Hambantota district. The Asian Human Rights Commission reported that an armed gang is operating in the Hambantota district on behalf of the Rajapaksa family.[6]
Tribunal hearing
[6] Asian Human Rights Commission 2012, The State of Human Rights in Sri Lanka in 2012, pp.7-8 <
The Tribunal invited the applicant to explain why she fears returning to Sri Lanka. The Tribunal found the applicant’s evidence to be vague and lacking in detail. The Tribunal had to ask the applicant on a number of occasions to expand on her claims.
The applicant said that she is aggrieved that her [permanent visa application was refused]. She put her concerns to the Minister seeking his personal intervention but was unsuccessful. She has since travelled to [Town 1].
The applicant said that many years ago she had a boyfriend in Sri Lanka who was a supporter of the JVP. The man disappeared. She had no knowledge about his political views at the time and did not know he was involved with the JVP. The Tribunal asked the applicant about her boyfriend’s role in the JVP. The applicant had difficulty answering the Tribunal’s question. She said that she did not know he was in the JVP at the time. She subsequently said that he did what the leaders told him. The Tribunal found the applicant’s evidence about her boyfriend’s association with the JVP vague and lacking in detail. She was unable to explain the circumstances surrounding his disappearance or why she has fears about returning to Sri Lanka because of her association with a man which occurred about 20 years ago. The Tribunal has had regard to the applicant’s evidence and does not accept the applicant was in a relationship with a man who was involved with the JVP.
Her brothers were interested in politics and her family supported the People’s Alliance. The Tribunal questioned the applicant about her brother’s political activities in Sri Lanka. The applicant said her brothers organised meetings and put up posters. She could not provide any further evidence about her family’s political activities in Sir Lanka.
After further questioning, the applicant said that in about 1989 the Sri Lankan government interrogated and abducted students. The government was suspicious that medical students were members of the JVP. Her family helped to hide a medical student in their home. The police came and searched their home. She was unsure when this incident occurred and could not provide further evidence about the incident.
Her elder brother was arrested by the United National Party government which was in power at the time. She could not recall the year.
The Tribunal found the applicant’s claims that her family came to the adverse attention of the Sri Lankan authorities because they were providing refuge to a medical student vague and lacking credibility. When questioned about the medical student’s political profile she provided no evidence apart from claiming that all medical students were suspected of being involved with the JVP in 1989.
The Tribunal has had regard to the applicant’s evidence and does not accept her brothers were involved in politics in Sri Lanka and came to the adverse attention of the authorities. Her evidence was vague and lacking in credibility. The Tribunal does not accept that any of her brothers were arrested and detained or that her family was under surveillance because they were perceived to be associated with the JVP or any other political party in Sri Lanka.
The applicant repeated her claim that she worked for a [company] for 22 years. She claimed a man called [Mr A] came to the company seeking a [service]. [Mr A] knew that her boyfriend was a supporter of the JVP. Subsequently she received nuisance calls and her car was followed. She suspected it was [Mr A].
The Tribunal questioned the applicant about why [Mr A] would be interested in causing her trouble. The applicant claimed that it was because her boyfriend worked for the JVP. The Tribunal found the applicant’s evidence about her association with [Mr A] vague and lacking credibility. The applicant was unable to expand on her claims or provide any evidence about why she was followed, why she received nuisance calls, what was said or when the calls were made. She was unable to provide any evidence about who followed her, when this occurred and how it was relevant to her claims.
The Tribunal has had regard to country information and accepts a person called [Mr A] was a Sri Lankan [government official]. According to [an independent source, Mr A was convicted of criminal offences after an incident] in [2011].[7] [Information deleted].[8] The Tribunal discussed the country information with the applicant at the hearing.
[7] [source information deleted]
[8] [source information deleted]
The Tribunal questioned the applicant about her involvement in politics in Sri Lanka. The applicant said she was not a member of any political party. She has never been arrested or detained by the authorities in Sri Lanka.
The Tribunal has had regard to the applicant’s evidence and does not accept that the applicant had any involvement with a Sri Lankan [official] called [Mr A] or that she came to his adverse attention because of her boyfriend’s association with the JVP or because of her family’s political opinion.
The applicant said that she undertook volunteer work for [Organisation 1] in Sri Lanka and Australia. She fears her involvement with [Organisation 1] will bring her to the adverse attention of the authorities in Sri Lanka. The Tribunal noted that [Organisation 1] was a non-government organisation and asked the applicant to explain how her association with [Organisation 1] would cause her problems in Sri Lanka. The applicant said she did volunteer work when there were floods in Sri Lanka. The applicant did not provide any further details about when or where she worked with [Organisation 1] in Sri Lanka.
The applicant has also provided a reference letter from [Organisation 1] in Australia confirming that she has undertaken volunteer work with [Organisation 1] in [Town 1] since November 2016. According to the letter she was an integral member of the [named program]. The letter makes no reference to the applicant’s involvement with [Organisation 1] in Sri Lanka.
The applicant also provided the Tribunal with evidence that she has contributed to promoting the historical value, culture, natural beauty and the attractions of [Town 1] by writing articles for [a] community magazine [which] is distributed nationally in Australia. When questioned about the relevance of this evidence, the applicant conceded that it was not relevant to her claims but demonstrated her commitment to promoting [Town 1].
The Tribunal has had regard to the applicant’s contribution to [a] community magazine, [and] the [Organisation 1] reference. The Tribunal finds that the applicant’s contributions to [the magazine] are not political in nature.
The Tribunal accepts the applicant has worked for [Organisation 1] in a volunteer capacity in Australia and her contribution is valued. The Tribunal also accepts the applicant may have worked as a volunteer with the Sri Lankan [Organisation 1] assisting flood victims in the past. The Tribunal is not satisfied however that there is a real chance that the applicant’s involvement with [Organisation 1] both past and present would impute her with an anti-government political opinion if she was to return to Sri Lanka in the reasonably foreseeable future.
In summary, the Tribunal finds the applicant’s evidence about her political profile in Sri Lanka vague and lacking in credibility. The Tribunal does not accept the applicant’s claims that she will be perceived to be a ‘leader’ of the JVP. The applicant conceded she was not a member of any political party in Sri Lanka. The applicant’s evidence about her former boyfriend’s involvement in the JVP and her association with [Mr A] was vague. The Tribunal does not accept the applicant was in a relationship with a man who was associated with the JVP. The Tribunal also found the applicant’s evidence about her brothers’ political involvement in Sri Lanka vague and lacking in detail. When asked about her brothers’ involvement in politics the applicant only provided limited evidence. As a consequence the Tribunal finds the applicant’s claims that she will be perceived to be associated with the JVP because of her former boyfriend and/or family lacking in credibility. The Tribunal was not provided with any supporting statements from the applicant’s family in Sri Lanka in support of the claims. In assessing the credibility of the applicant’s claims the Tribunal has also had regard to the delay and timing of the applicant’s protection visa application. As detailed above, the applicant first arrived in Australia in June 2008 however she did not apply for the protection visa until November 2015. The Tribunal would have expected that if the applicant had genuine fear of persecution in Sri Lanka she would have applied for the protection visa soon after arriving in Australia. The Tribunal has also had regard to the timing of the application and finds that she applied for the protection visa after she had exhausted all other options of remaining in Australia.

Looking to the reasonably foreseeable future, the Tribunal is not satisfied that the applicant will face a real chance of serious harm in Sri Lanka because of her actual or imputed political opinion. The Tribunal finds that the applicant’s fear of serious harm because of her political opinion is not well founded.
The applicant said that she now fears her family don’t want her to return. Her brothers are married and have children and have their own life and are not able to look after her. She claims her background will cause them problems and will be a burden.
The Tribunal accepts the applicant will be returning to Sri Lanka as a single woman who has been living and working in Australia since June 2008. The Tribunal finds the applicant departed Sri Lanka lawfully and travelled to Australia on a [temporary] visa on a validly issued Sri Lankan passport. The Tribunal finds there is no real chance or real risk the applicant would face harm in Sri Lanka because of the way she departed Sri Lanka or the time she has spent in Australia.
The applicant also said that she fears returning to Sri Lanka as a single woman. She fears being raped. In assessing this claim the Tribunal has had regard to DFAT’s country information report, which provides the following background information on the treatment of women in Sri Lanka:
3.84 Article 12(2) of Sri Lanka’s Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its Optional Protocol. Although civil and criminal law regard women as equal, the law favours men in relation to divorce, custody of children, property distribution and inheritance.
3.85 Despite having the best social indicators for women in South Asia, Sri Lankan women are under-represented in the labour force and parliament, and over-represented in informal, low skill and low wage jobs. The government recently introduced a target to increase female labour participation from 36 per cent to 40 per cent by 2020, but societal pressures particularly against Tamil and Muslim women seeking external employment will work against it.
3.86 Sri Lanka’s political history features several high profile women, including three-time former Prime Minister Sirimavo Bandaranaike and her daughter, former President Chandrika Bandaranaike Kumaratunga. The first female mayor of Colombo was elected in March 2018. Overall, however, female political participation in Sri Lanka is low. Only 13 of Sri Lanka’s current 225 parliamentarians are women (5.8 per cent), one of the lowest rates of female parliamentary representation in South Asia. The government has two female Cabinet ministers, two female State ministers and one female deputy minister. The government has taken some measures to increase female political participation at the provincial and local levels. In September 2017, the government passed the Provincial Councils Elections (Amendment) Act to require 25 per cent female representation in provincial council elections. In August 2017, the Local Authorities Elections (Amendments) Act mandated a 25 per cent quota for women’s representation at the local government level.
3.87 Violence against women occurs throughout Sri Lanka: the 2017 Report of the UN Secretary-General on Conflict-Related Sexual Violence reported gender-based crimes in all nine provinces. The United Nations Population Fund reported in 2016 that one in four women in Sri Lanka are sexually abused by the time they are 18 years old. The Prevention of Domestic Violence Act (2005) criminalises rape and domestic violence, but marital rape is considered an offence only in cases where the individuals are legally separated. Sexual harassment is an offence under Section 345 of the Penal Code with a maximum penalty of five years’ imprisonment. In October 2016, the National Police Commission designated provincial senior female law enforcement officers to respond to sexual harassment claims. According to police statistics, 294 cases of rape of women over 16 years were recorded in 2017, a slight decrease from 2015 and 2016. According to the UN Committee on the Elimination of Discrimination Against Women, the majority of cases of gender-based violence are likely to go unreported due to inadequate legislation, women’s limited access to justice including fear of reprisals, limited trust in the police and judiciary, delays in the investigation of cases, and very low conviction rates. Few cases of gender-based crimes involving a member of the security forces result in convictions, though seven men were sentenced in the Jaffna High Court in September 2017 for the abduction, rape and murder of a schoolgirl in 2015. Only one case of post-war sexual violence by military personnel has proceeded to the courts, in Jaffna in 2015.
3.88 The government has committed to prevent the abuse of women, and in November 2016 launched a national action plan to address sexual and gender-based violence. Civil society organisations in Sri Lanka note, however, that no ministry is responsible for monitoring the implementation of the plan. The Ministry of Health, in partnership with non-government organisations, maintains district hospital-based medical services for sexual assault victims. The gender-based violence desk at a base hospital (smaller than a district level hospital) in the Eastern Province reported 82 cases to the end of November 2017, 84 cases in 2016 and 28 cases in 2015. Non-state support services for survivors of domestic violence, including crisis centres, legal aid and counselling, are scarce and lack funding nationwide.
3.89 DFAT assesses that women throughout Sri Lanka, including in the north and east …. face a moderate risk of societal discrimination, including violence, and that few support mechanisms are available to women in these circumstances.
The Tribunal finds the applicant’s home area is the capital Colombo. She is not from north or east Sri Lanka where there is a reported higher prevalence of sexual violence and domestic abuse: at [3.90] of the DFAT report. She is from the majority Sinhalese ethnic group in Sri Lanka and follows the Buddhist religion. She is not a member of the Tamil minority ethnic group which faced persecution during the Sri Lankan civil war.
The Tribunal had regard to the applicant’s profile and finds she is a [age] year old Sinhalese woman with 22 years of work experience in [a specified] sector working at the executive level. She obtained a Diploma in [Field 1] in Sri Lanka. The Tribunal finds the applicant left Sri Lanka in 2008 [for specified reasons] and not because she feared persecution. Since arriving in Australia she has completed a Diploma [in Field 2]. The Tribunal finds that the applicant is a single Sinhalese woman with no dependants; she has qualifications and work experience which place her in a strong position to find employment in Sri Lanka in the reasonably foreseeable future.
The Tribunal had regard to country information detailed above and accepts that violence against women does occur throughout Sri Lanka and it has been reported that one in four women in Sri Lanka are sexually abused by the time they are 18 years old. The Tribunal notes however that Sri Lanka has laws which criminalise rape and the National Police Commission designated provincial senior female law enforcement officers to respond to sexual harassment claims. DFAT advise that all citizens have access to avenues for redress through the police, judiciary and the Human Rights Commission of Sri Lanka: at [5.1] and [5.9].
The Tribunal finds that as a single Sinhalese woman living in Colombo, the applicant has access to state protection. The Tribunal is not satisfied that the applicant would be denied state protection because she is a single female or for any of the grounds in s.5J(1) of the Act.
Looking to the reasonably foreseeable future, the Tribunal is not satisfied that the applicant, as a single Sinhalese woman, will face a real chance of being raped if she returns to Sri Lanka in the reasonably foreseeable future.
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
The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[9]
[9] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).
As detailed above the Tribunal does not find the applicant to be a credible witness. The Tribunal finds the applicant’s evidence about her political profile in Sri Lanka vague and lacking in credibility. The Tribunal does not accept the applicant’s claims that she will be perceived to be a ‘leader’ of the JVP. The Tribunal does not accept the applicant was in a relationship with a man who was associated with the JVP. The Tribunal also found the applicant’s evidence about her brothers’ political involvement in Sri Lanka vague and lacking in detail. The Tribunal does not accept the applicant’s claims that she will be perceived to be associated with the JVP because of her former boyfriend and/or family.
The Tribunal has had regard to country information and finds that the applicant as a single Sinhalese woman from Colombo does have access to state protection in Sri Lanka. The Tribunal finds the applicant’s claim that as a single woman she will be raped if she returns to Sri Lanka speculative.
The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk she will suffer significant harm.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.

[2018] AATA 5394

1 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal