1612555 (Refugee)

1612555 (Refugee) [2016] AATA 4751 (25 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612555
COUNTRY OF REFERENCE:                  Egypt
MEMBER:Josephine Kelly
DATE:25 November 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 November 2016 at 9:14am
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 [in] August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Egypt. He applied for the visa [in] July 2016. The delegate refused to grant the visa on the basis that the applicant was not a refugee and did not satisfy the complementary protection criterion.
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 in this case is whether the applicant satisfies either the refugee or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The following findings are uncontentious.
The applicant was born in [his home village] in [District] in Menia on [date]. He is a citizen and national of Egypt. He holds an Egyptian passport that was issued [in] 2007 and expired [in] 2014. His ethnic group is Coptic Orthodox. His religion is Christianity. The applicant has [specified siblings].
The applicant speaks, reads, and writes Arabic and English.
He is in contact with relatives outside Australia by telephone and internet ([specified services]).
He arrived in Australia [in] August 2007 holding a [temporary] visa that was granted [in] August 2007. He has not left.
The applicant’s [temporary] visa ceased [in] August 2009 when he became unlawful. [In] September 2009 he lodged a [temporary] visa application and was granted a bridging visa which ceased [in] July 2010 after his application was refused [in] June 2010. Thereafter he was unlawful.
[In] June 2016 he was located by [police] and subsequently detained and taken to [a] detention centre [in] June 2014.
The applicant claims that he has never worked and has been supported by his family, including since he has been in Australia. He withdrew from a [subject] course in Australia in about September 2009.
The applicant had the assistance of a migration agent when he filled out the visa application form.
The applicant’s claims for protection
The applicant set out the following claims for protection in his written statement which was provided in support of his protection visa application.
He has Christian parents. His father worked as a principal [at the local school] and his mother was a housewife.
The applicant attended [two local schools]. He went to [a different] secondary school and then studied at [a university / faculty].
During his primary school years he was assaulted by one of the Moslem teachers who wanted to force him to learn verses from the Koran. Because the applicant did not learn the verses, the teacher kept hitting him fiercely, resulting in his front teeth being broken, that remains obvious today.
The applicant complained to the management of the school. They took no action against the teacher. He was forced not to go to school for over a month to recover psychologically, as he was very badly affected by the incident. Consequently, he has deformed teeth and mouth which is obvious today and leads people to ridicule his appearance.
In March 2007, a dispute started between the applicant and his neighbours, [from Family A]. They are from a very fanatical family who saw Christians as Kafar and their slaves. It was their prerogative to cleanse the world of Christians.
One day they got into an argument and assaulted him verbally and humiliated him because he is a Christian. They said worse things about his religion and his God and called him a Kafar.
He could take their no insults no more and started to answer them back and say that it was not his religion that orders people to be killed and it is not his religion that does not respect other religions. He cannot remember his exact words at that time because he was very hurt and trying to defend his religion. When he answered them, they considered that he was blaspheming against Islam, the Koran and their Prophet. They said that he had to be killed according to their sharia law as he had defamed Islam.
The applicant went to the police to report the assault against him. The policeman forced him to reconcile, although he knew very well that this was fake and that he would be harmed for sure.
“We” went back to the village, but the men went and brought many of their relatives. They have physically assaulted the applicant with clubs and were punching and kicking him.
The whole village got involved and basically all the Muslims in the village were against the applicant as they believed that he had defamed their religion.
The Christians in the village got the applicant a doctor who saw that he had a [major injury]. They [treated the injury] but could not fix it as it was [severe] and to this day [it has not been corrected].
Straight after this in April 2007, the applicant had to go to live with one of his friends in Beni Suef, to get away from them because all the village wanted his blood to be shed. In June 2007 while he was walking in Beni Suef, he was [assaulted and left in a dangerous place] by people from his own village who had come after him. They said that he could not get away from them and anyone who dares to defame Islam will not be able to live. They left him unconscious [at that place] after hitting him very severely.
The applicant thanks God that the people in Beni Suef got him [away from the danger] while he was unconscious and before [the danger developed]. They told he was very lucky as [danger was imminent].
The applicant knew that living anywhere in Egypt was impossible after that as his blood was wanted. Everyone was very convinced that he had defamed Islam and their sharia law says that he must die.
He knew that they would find him wherever he went as they are very powerful. They are a very big and fanatical family and will know how to find him wherever he goes.
He applied for a [temporary] visa to the Australian Embassy which was approved. He arrived in July 2007.
The situation continued to be bad between the applicant’s family and the Moslems in the area, especially with the same fanatical family which are huge in number, which led to the applicant’s [siblings] leaving Egypt for their safety. [One sibling] left for [Country 1] in 2012 when [their] life became endangered.
They still threaten his family that if he returns he will die. They use him as an example to the rest of the Christians in the village, saying that they should learn from his example that if anyone dares to even answer them they will do to them what they did to him.
They know he is overseas from their contacts and the authorities. They told his family that if he were ever to return to Egypt they will kill him.
They have very powerful members in the police and the authorities in Egypt. If he arrives back in Egypt, they will know from the time he gets to the airport.
When he arrived on a [temporary] visa in Australia, he went and spoke to a migration agent and told him about the danger he was facing in Egypt and that the his biggest fear would be that this fanatical family would find out that he has made a protection application against them in Australia. The migration agent told the applicant that Australia always checks anything he would say and that there is a chance they would find out when Australia makes those checks.
After hearing that, the applicant knew his family would be in danger if he applied in Australia for protection. He knew that if that family knew that he had mentioned their name in any way, they would kill his parents and whoever else was left of his family, especially as they were already making many problems for them.
For that reason he could not apply for protection and had to stay and flee in Australia without seeking a protection visa as he feared for his and his family’s safety.
Departmental interview
The applicant was interviewed in relation to his current application [in] July 2016. A useful summary of what occurred during the interview is included in the decision record, a copy of which the applicant provided to the Tribunal. A recording of the interview is before the Tribunal. The applicant provided the following additional details to those provided in his application.
The applicant said that the arguments with [Family A] started because he was wearing a cross which they said he should not have been.
The applicant said that the police officer told him he would be jailed for abusing Islam if he did not reconcile with [Family A]. He said there was no record of that agreement.
In relation to the beating he received after returning from the police station, the applicant stated that he had passed out and woke up in the hospital where he had been taken by Christians. He spent the night there and had to [undergo treatment] for two months. He said that there was evidence of the hospital treatment he received in Egypt and that he would try to obtain it.
The applicant said that five villagers related to [Family A] came all the way to Beni Suef to harm him two weeks after he arrived there. He said the attack occurred at 9 am when he was on his way to university. They beat him up and threw him [in the dangerous place]. He suffered concussion and was in hospital for two nights. He was unsure whether the medical report about those injuries was still at his parents’ home. He did not contact the police because [Family A] had been threatening and abusing his family and he was concerned for their safety and welfare.
His family was told that if [Family A] could not find the applicant to kill, then one of his [siblings] would be killed. That prompted [some of his siblings] to flee Egypt. One of his [siblings] remains in Egypt living with [their] parents. That [sibling] is married and has a family.
[Family A] last approach to his family was three weeks prior to the interview. They told his family that they were aware that he was in the detention centre. The applicant said that he knows people from his village who are currently in Australia. One of them informed [Family A].
The applicant’s representative said an attempt would be made to obtain the medical reports regarding the applicant’s injuries from Egypt and that testimony from the local church would be requested. Further statements from witnesses to the attack in Beni Suef would be sought.
The representative made submissions about recent incidents in the applicant’s home area.
No documents supporting the applicant’s claims were provided to the Department.
Material provided to the Tribunal
After the hearing, the applicant’s representative provided to the Tribunal a short submission about powerful families in upper Egypt and copies of Google translations of eight newspaper articles, three articles from Human Rights Watch, and originals and translations by a NAATI translator of two medical reports and a letter from the [leader] of [Church 1], [in his home village].
Consideration of claims and evidence, and findings
The Tribunal accepts that the applicant is a Copt and a citizen and national of Egypt. However, it does not accept that the applicant’s claims for protection because of his fear of [Family A] are credible because there were significant inconsistencies in the evidence before the Tribunal. Following are some examples.
The applicant provided the following information in his visa application: “Egypt/[Country 1]” is the country of residence of [one sibling] who was born in [year] and [Country 1] is the country of residence of [another sibling], who was born in [year]. Both his [siblings] left Egypt after the applicant did because the situation continued to be bad between his family and the Moslems in the area, especially the same huge fanatical family.
The applicant told the Tribunal that the older of those two went to [Country 1] in 2012 because [of] fleeing from the same family as threatened the applicant. [That sibling] had a [temporary] visa for [another country], having finished high school in Egypt. Now [another sibling] is in [Country 1] studying [a course], the older [sibling] goes to stay [there] during [holidays].
The applicant told the Tribunal that his [sibling] who was born in [year] lives with [their family] together with the applicant’s parents in the same place where they lived when the applicant left Egypt. That [sibling] worked in [an industry] when the applicant left Egypt and continues to do so.
The Tribunal finds that the first of his [siblings] not leaving Egypt until at least four or five years after the applicant left is inconsistent with the applicant’s claim that his family was told that if [Family A] could not find the applicant to kill, then one of his [siblings] would be killed which prompted two of his [siblings] to flee Egypt. Further, it does not accept that after four or five years, coincidentally when the [sibling] had finished high school, [Family A] would suddenly threaten [that sibling] to the extent that he had to flee. Similarly, that his youngest [sibling] became subject to a threat at some later time, is not consistent with the applicant’s claim set out in the first sentence of this paragraph.
It is relevant that in 2012, President Morsi of the Freedom and Justice Party – the political wing of the Muslim Brotherhood (MB) - was elected.[1] Egypt experienced a considerable decline in general law and order in the wake of the 2011 Revolution.[2] The MB’s ascendency had been viewed with considerable apprehension by most Copts.[3] The conditions from 2011 to 2013, as described in the Country and Thematic reports are a good reason for a young Copt to leave Egypt in those years.
[1] DFAT Country Information Report Egypt 24 November 2015 (the Country Report) at [2.3].
[2] The Country Report at [2.25] and see the section headed “Security Situation” generally.
[3] DFAT Thematic Report Egyptian Copts 24 November 2015 (the Thematic Report ) at [2.10] and see the report generally.
That the applicant’s two [siblings] were able to leave Egypt after the applicant had, is inconsistent with the applicant’s claim that the powerful family would know he had returned to Egypt as soon as he got to the airport because they have connections all over Egypt in the police, military and in Parliament and are well-known in Egypt. If that family was so well connected and powerful, it would not have allowed two more members of his family who they were threatening to leave Egypt, especially when they had not prevented his leaving Egypt.
That the [older sibling] has lived at their home and worked in the same type of work before and after the applicant left Egypt is not consistent with the powerful family threatening the applicant’s family, including the two [siblings] who went to [Country 1], as the applicant claimed. There is no reason on the evidence why [that sibling] was not also threatened or harmed.
In his visa application, the applicant claimed that he studied at [his] University from [2006] until [2007] when he withdrew. The other answers he could have given were “Completed” or “Currently enrolled”. Before discussing the applicant’s protection claims with him, the applicant told the Tribunal that he had applied for his [temporary] visa to come to Australia in July 2007 and studied at [his] University until the visa was granted. Therefore, he was studying at [his] University in July 2007 and continued to do so until the visa was granted, which was at least two months later than his claim in his visa application to have withdrawn from university in May 2007. That evidence is also inconsistent with his claim made during the hearing to have gone into hiding after the assault in Beni Suef at the beginning of June 2007.
The information in the letter from the [leader] of [Church 1] is not consistent with the applicant’s claims for protection. The information is that the applicant was subjected to harassment and assault by pro extremists Muslim Brotherhood and that “the church decided to send him outside the country fearing for his life (and) in order to keep the village safe and to prevent any sectarian strife”. The applicant made no claim that he was persecuted by the MB or that the family were members of the MB. He said that it was a powerful fanatical Moslem family. The letter does not mention a powerful family at all. Given the notoriety of MB in Egypt, as is apparent from the Country and Thematic reports, the Tribunal does not accept that describing a Moslem family as fanatical is the same as saying that the family is MB. If the applicant had been persecuted by the MB, the Tribunal would have expected him to mention MB. The applicant made no claim that the church had assisted him in any way.

The Tribunal finds the applicant’s claims about the incident when he was assaulted by a Moslem teacher are inconsistent. In his visa application, the applicant claimed that he attended a primary school, a preparatory school and a secondary school, and that the incident occurred during his primary school years. During the Tribunal hearing the applicant said that the assault occurred when he was about 13 when he was in primary school. When the Tribunal commented that was where his father was the principal, the applicant said it occurred in the first year of second school and not at the school where his father was principal. The applicant said that the three front teeth in his upper jaw were knocked out but they can grow back at the age of 13. They are shorter than they should be and are not straight.
The Tribunal finds that the applicant changed his evidence when he recognised a difficulty in his case, that is, that it was unlikely that he would be assaulted in the school where his father was the principal. The representative submitted that the applicant said primary school because in Australia, there is no equivalent to the preparatory school in Egypt. The Tribunal does not accept that. In his visa application the applicant distinguished the three types of school and claimed that the incident had occurred when he was in primary school.
Further, the Tribunal does not accept that the applicant’s three front teeth would grow back if they were knocked out when he was 13 years old. “Your child will begin losing his/her primary teeth (baby teeth) around the age of 6. The first teeth to be lost are usually the central incisors. This is then followed by the eruption of the first permanent molars. The last baby tooth is usually lost around the age of 12, and is the cuspid or second molar.”[4] The diagram accompanying that discussion show that the two central incisors are the front teeth and lateral incisors are to their right and left. The diagram states that the central incisors come in at 7.35 years of age and the lateral incisors come in at 8.45 years of age
[4] Anatomy and Development of the Mouth and Teeth referenced 23 November 2016
The Tribunal does not accept that not applying for a protection visa until detained almost nine years after arriving in Australia, having been unlawful since July 2010, is consistent with the applicant’s claiming to fear serious and significant harm from [Family A] if he returns to Egypt. His explanation is that a lawyer told him when he first arrived here that the Australian government would make inquiries in Egypt and [Family A] would find out. When the Tribunal doubted that a lawyer would say that, the applicant’s representative, who is a lawyer, said that checks are made and that the applicant believed that his family would be put in danger if that occurred. The Tribunal does not accept that his seeking protection in Australia would put his family at higher risk than he claims that they have been because of him. Further, the Tribunal does not accept that [Family A] would be concerned about inquiries being made in Egypt, given their claimed power and network.
For the above reasons, the Tribunal does not accept that the applicant’s claims for protection because of his treatment by [Family A] or their surrogates are credible. It does not accept that he has suffered serious or significant harm from [Family A] or their surrogates in the past and does not accept that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm from [Family A] or their surrogates if he returns to Egypt.
The Tribunal finds it implausible that having worn a cross around his neck since the age of five as he told the Tribunal, that suddenly, one day when he was 17, [Family A] would attack him for wearing it.
In making the above findings, the Tribunal has taken into account the oral and written submissions and the country information before it. It is concerned with the particular claims the applicant has made about [Family A] and the evidence provided to support those claims, which it has found not to be credible.
It has taken into account the medical reports provided, which are consistent in terms of the claimed injury and date of injury. However, the Tribunal gives those reports little weight. They are dated [in] March 2007 and [in] June 2007 but were not provided to support the application until after the Tribunal hearing. The applicant may have suffered the injuries he claimed. The reports do not provide any details of how the injury arose or who caused the injury.
The applicant told the Tribunal that he still has military service obligations in Egypt which end when he turns 30 and he asked that this claim be considered. He said that he would have to pay a fine or spend time in gaol.
The Tribunal accepts that the applicant has military obligations. He may fulfil them. He will only be liable to a fine and/or imprisonment of a minimum of one year if he does not fulfil the obligation. Exemptions and deferments are also possible.[5] He said that he would be taken into police custody at the airport and handed over to the military. There is no country information to support that claim.
[5] Country Report at [3.94] and Thematic Report at [3.33].
The Tribunal has taken into account the information about military service in the Country Report at [3.94] to [3.96] and in the Thematic Report at [3.33] and [3.34]. It has also taken into account the information in the Country Report about deaths in custody at [4.3] to [4.5] which does not indicate whether or why individuals were targeted.
Taking into account all those circumstances, the Tribunal does not accept on the information before it that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm because of his military service obligations if he returns to Egypt.
Taking into account the applicant’s claims for protection singly and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm, or a real risk that he will suffer significant harm, if he returns to Egypt.
For the above reasons, the Tribunal is not satisfied that there is a real chance that if the applicant returned to Egypt, the applicant would be persecuted for one or more reasons of race, religion, nationality, membership of a particular social group or political opinion. He does not have a well-founded fear of persecution.
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).
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Egypt, there is a real risk that he will suffer significant harm.
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.
Josephine Kelly
Senior 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.
…

[2016] AATA 4751

25 November 2016

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice