1612969 (Refugee)

1612969 (Refugee) [2019] AATA 6600 (10 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612969
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Noonan
DATE:10 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2019 at 7:38am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – divorced women – fear of physical violence – threats regarding dowry – conflict between parents – fear of killing – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 351,424
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
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 27 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 India, applied for the visa on 22 October 2015. The delegate refused to grant the visa on the basis that there was no real chance or risk that the applicant will suffer persecution or significant harm if returned to India.
The applicant is [an age] year old woman from India. She was married in India and arrived in Australia [in] November 2009 as the holder of a [Student] visa. On 14 May 2013 she was refused a [further student] visa. This decision was subsequently affirmed by the Migration Review Tribunal on 10 February 2014 and by the Federal Circuit Court [in] June 2014. The applicant then made a s.351 request, which was not referred, [in] September 2015.
The applicant attended a hearing before the Tribunal on 3 May 2019. The hearing was conducted with the assistance of a Punjabi interpreter.
At hearing the Tribunal discussed with the applicant information contained in the Departmental file that appeared to be adverse to her case and the applicant responded to that information. After the hearing the Tribunal wrote to the applicant under the provisions of s.424A, inviting her further response to or comment on that information. The applicant’s written response to the Tribunal’s letter was received on 21 May 2019.
The Tribunal held a further hearing on 15 August 2019. This further hearing was conducted with the assistance of a Punjabi interpreter.
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.84, 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 meets any of the criteria set out in s.36(2). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1]. However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2].
Country of nationality
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the Department file. The Tribunal finds the applicant is an Indian citizen and has assessed the applicant’s claims against India as her country of nationality.
Does the applicant have a well-founded fear of persecution should she return to India?
In her written claim for protection lodged with the Department, the applicant stated that she left India to support her husband in his studies. She stated that she fears returning to India because her in-laws will harass her, beat her, insult her and even kill her. They blame her for her divorce with her husband and they want the money they spent on her move to Australia. She stated that after her husband moved to Australia her in-laws would beat her and told her to bring them money and a dowry from her parents. She did not seek help from the Australian authorities as her parents asked her to keep quiet to avoid shaming them. Further, she does not believe she will receive protection from the Indian authorities as they do not become involved in family matters.
During the Tribunal hearing the applicant stated that she had not had any trouble in India prior to coming to Australia. In December 2008, she had travelled back to India to look after her husband’s mother. She had done this for five months. During this time she had experienced trouble from her in-laws as they wanted money from her. She had complained to police. Her in-laws then contacted her father and threatened action against her as she has complained to the police in India. The police registered her complaint but took no action. From 2009 her husband had also been hassling her parents for money and attacking her. She decided to divorce him and apply for her own study visa. She thought it would be better to spend her own money on her own study rather than on his study. She confirmed she obtained divorce by consent in 2013 and her husband had agreed. The applicant submitted her Australian divorce papers in respect to her ex-husband. The Tribunal accepted she divorced her ex-husband in 2013. She confirmed that her ex-husband continued to live in Australia and that he still does. She has not experienced any trouble from him since their divorce.
The applicant confirmed she currently has a good relationship with her own family, including her father. She stated that she had first told her father about the divorce two years ago in 2017. She had not told him earlier as he is a [patient]. When he found out he cried and went to her in-laws’ house with many of his own relatives and asked them what they had done. There was fighting. He was upset as they had been asking him for money. It was from this time that the problems in respect to her ex in-laws really began.
She submitted that her ex in-laws still ring her father and state that the divorce has shamed them and they still ask for money. She fears harm from her ex in-laws. They live very close to her own parents’ house. Her father advised her not to come back for this reason. She stated that once or twice they had tried to harm her brother and her father but gave no further details in this respect.
The applicant stated that she is without work rights in Australia. She survives from money sent to her by her father and uncle. She previously worked in [businesses]. In India she left school in [grade]. She confirmed she speaks English and Punjabi.
In respect to other evidence the Tribunal considered in this matter, the Tribunal noted a translated letter, dated 4 September 2018, from the applicant’s father which stated that the applicant’s ex in-laws harassed the applicant over money and dowry issues in 2009 and that due to a compliant to the police he had made about this her husband had also started hassling her in Australia. He stated that this had subsequently resulted in the husband hitting his daughter and then the husband had eventually forced his daughter into a divorce. He also stated that upon his daughter’s wedding he had given more dowry than he could afford. He asked for justice for himself and his daughter. The Tribunal accepts this evidence as credible.
On 8 May 2019 the Tribunal wrote to the applicant under s.424A of the Act inviting her to comment on or respond to information contained upon the Departmental file which would, subject to her comments or response be the reason or a part of the reason for affirming the decision as follows:
The particulars of the information are:
·On 3 July 2014 in a community Status Resolution Plan you are cited as not mentioning any protection claims. Further you were asked if you will depart Australia voluntarily if the Minister declines your request for intervention. You are recorded as stating you would depart. Further you were asked if you had any concerns about returning to India to which you are recorded as advising that you did not.
·On 15 September 2015 you are recorded as telling a delegate that you were fearful of going back to India and facing your parents as after arriving in Australia you divorced your husband and your family still doesn’t know. You were asked if you had any other fears to which you replied no.
This information is relevant because you have based your claim for protection on fear of harm from your ex-husband’s relatives. This is inconsistent with what you have previously told the delegate which was that you only feared facing you parents and telling them about the divorce. Further that you had no concerns about returning to India. This might indicate your ex-husband and his relatives in fact did not harm you in the past and do not seek to harm you know and that you have made untruthful claims.
If we rely on this information in making our decision, we may disbelieve the claim that you have been attacked by your ex-husband and his relatives and to conclude that some or all of your claims are untruthful.
On 21 May 2019 the applicant provided a response to the Tribunal’s correspondence of 8 May 2019. In her response the applicant stated that her in-laws began demanding a dowry soon after her wedding, however her father could not pay one as he had paid for her husband’s tuition fees. Her family made a complaint to police about the dowry demands. In Australia she fought with her husband. Her husband instigated a divorce and she agreed. She made an application for a student visa but it was denied. She appealed this decision to the Federal Court.
Eventually she gathered the courage to tell her father about her divorce. He became angry and went over to her ex in-laws’ house and accused them of ruining his daughter’s life and noted that he had paid so much money to their son. Due to this incident, and the shame it caused, her ex in-laws have threatened to kill her if she returns to the village. She then decided to apply for a protection visa. She agreed that in September 2015 she had told the Department that she cannot face her father.
The applicant made no claims in respect to now having a fear of serious harm in respect to her father or mother or other members of her family. She has subsequently told her parents about her divorce and her father is supportive of her as evidenced by his letter of support. The applicant informed the Tribunal that she has a good ongoing relationship with her father and family and that they continue to support her financially while she is in Australia. The Tribunal put to the applicant that this may suggest that despite raising claims in respect to shame around her divorce, in fact she has no fear of harm from her family. The applicant agreed she has no fear of harm from her own family.
Fear of harm from the applicant’s ex-husband
The Tribunal accepts that the applicant divorced her ex-husband in 2013 by consent and that he continues to live in Australia. The Tribunal notes that the applicant made no claim that she has since received a threat of harm from her ex-husband or that he continued to hassle her parents for money. The Tribunal put to the applicant that, due to the passage of time, with no threats or any contact from her ex-husband, it may conclude there is no real chance of serious harm to her from her ex-husband should she return to India as he has no interest in her. The applicant stated that he will not contact her as he is aware she could complain to the police. She confirmed her ex-husband is in Australia and she has had no contact with him since their divorce. Considering the available evidence, the Tribunal does not consider the applicant faces a real chance of serious harm to her from her ex-husband should she return to India. He appears to be living in Australia and to have no interest in the applicant, adverse or otherwise.
Fear of harm from the applicant’s ex in-laws
The Tribunal notes that the applicant divorced her ex-husband in 2013. She made her claim for protection on 22 October 2015. She had two documented contacts with the Department prior to making her claim for protection. In neither contact did she mention a fear of harm in respect to her ex in-laws. In a contact on 3 July 2014 she stated that she had no fear of harm from returning to India. In a contact on 15 September 2015 she informed the delegate that she was fearful of going back to India and telling her parents about her divorce.
The Tribunal does not accept the applicant’s explanation that she had been stressed and sick due to having trouble with her ex-in laws and as such had not mentioned any fear of harm to the Department, when asked directly if she had any such fears, as being reasonably plausible. This is because the Tribunal would expect that a person holding a well-founded fear of serious harm would have mentioned this fear of harm when directly asked about it when discussing their migration options with the Department.
The Tribunal considers the applicant’s claim that her father confronted the applicant’s ex in-laws, after finding about her divorce, causing them to be so shamed that they seek to enact serious harm upon the applicant, is directly contradicted by the written evidence of her father. If ongoing confrontation is occurring between the applicant’s ex in-laws and her father, the Tribunal would expect this to have been mentioned in her father’s letter. As it was not, this caused the Tribunal to have serious doubts in respect to the applicant’s claim that confrontation and conflict is occurring between her father and her ex in-laws. This also caused the Tribunal to doubt the applicant’s claim that her ex in-laws still ring her father and state that the divorce has shamed them and they still ask for money.
The Tribunal put to the applicant, under s.424AA of the Act, that in his letter of support dated 4 September 2018, her father did not mention that he had confronted her ex in-laws after becoming aware of the divorce or that they had issued a threat to kill the applicant due to the shame of the confrontation. The Tribunal put to the applicant that her father had only asked for justice for her in respect to the difficulties she experienced with her ex-husband and the subsequent divorce, which all occurred, in his view, due to a police complaint he had made about their treatment of his daughter during her visit in 2009.
The Tribunal put to the applicant that this information is relevant because it may cause the Tribunal to doubt the truthfulness of her evidence and to consider her claims lack credibility. This is because the Tribunal would expect that if a threat to kill had been made by the applicant’s ex in-laws, due to the alleged confrontation with her father, that this would have been mentioned by her father. The Tribunal considered that the fact that he did not do so reflects that no such threat has been made. The Tribunal also noted that the applicant’s father made no mention of confronting the applicant’s ex in-laws upon becoming aware of his daughter’s divorce. The Tribunal considers that the fact that he did not do so may reflect that no such confrontation took place and accordingly no threats to kill have been issued by the applicant’s ex in-laws. The Tribunal noted that if it was to rely on this information in making the decision, it may not accept that the applicant has a well-founded fear of persecution if she should return to India or that there is a real risk that she will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India, and that his would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. The Tribunal invited the applicant to respond to this information either at hearing or in writing after the hearing. The applicant verbally submitted that she has been in Australia for over 10 years and she feels scared about going back to India. She stated that she would also respond further to the Tribunal’s concerns in respect to the letter from her father in writing.

The Tribunal subsequently wrote to the applicant, under cover of a letter dated 16 August 2019, setting out the Tribunal’s concerns in respect to her father’s letter as set out at hearing and inviting her response by 30 August 2019. The applicant subsequently requested an extension of time to respond due to unspecified health issues and moving address. The Tribunal did not grant her request for an extension of time as the Tribunal considered her stated reasons insufficiently demonstrated an inability to meet the set deadline for a response. At the very least, the Tribunal would expect a medical certificate indicating the applicant’s current incapacity to respond meaningfully to the Tribunal’s letter. The applicant again wrote to the Tribunal stating she was too sick to write the response letter and forwarded a receipt for a consultation with her doctor dated 26 August 2019 with no attached medical certificate. The Tribunal again did not consider the applicant had provided sufficient reason for a further extension being granted for her to respond to the Tribunal’s concerns in respect to the contents of her father’s letter, as again she supplied no medical certificate indicating her incapacity to do so. As at 10 October 2019, the Tribunal had still not received any further submissions from the applicant.
The Tribunal also noted that the applicant submitted that her ex in-laws had tried to harm her brother earlier in 2019 on a road outside the village, however she stated that the assailants’ faces were covered and she could not provide any evidence. Her father is unharmed but has had arguments with her ex-in laws. The Tribunal put to the applicant that her family continue to live in close proximity to her ex in-laws. Further, the applicant’s father is unharmed by the applicant’s ex in-laws despite claims of shame and confrontation with her ex in-laws. The Tribunal put to the applicant that this may also cause it to doubt that the applicant’s ex in-laws have ever harmed the applicant’s father and brother in the past or that they may seek to harm the applicant’s family or herself in the future. The applicant simply responded that her father has a lot of supporters in the village, many of whom were with him when he confronted her ex in-laws and as such he was not harmed.
In addition to the above concerns, the Tribunal also has credibility concerns relating to the lengthy delay in the applicant making a protection claim and her migration history as set out earlier in these reasons. When asked about the delay in applying for protection after she had divorced her husband, the applicant stated that she was focused on her student visa and thought she would be attached to her husband’s visa and that she had been stressed and sick due to the behaviour of her ex in-laws. The Tribunal did not accept this explanation as being reasonably plausible. If the applicant was that stressed and sick due to the behaviour of her ex in-laws, the Tribunal would expect her to have mentioned this and pursued, or at least inquired, about her protection rights. She was aware of the protection visa option but chose to pursue a student visa outcome demonstrating that she was well enough to pursue a migration outcome.
After considering the applicant’s migration history pertaining to this matter, the Tribunal finds that the applicant’s persistence in pursuing her student visa, including having contacts with the Department in which she made no mention of any fear of harm due to returning to India, rather than seeking protection earlier than she did, reflects that she did not have a well-founded fear of persecution for the reason claimed. Rather, it reflects that she made the protection visa application only when she had exhausted all other options for remaining in Australia.
After considering the totality of the evidence before it, both individually and cumulatively, the Tribunal does not accept that the applicant’s ex in-laws have previously beaten her, that they still want more dowry money from her parents or that they seek money from her or her parents. Further, the Tribunal does not accept that the applicant’s father confronted the applicant’s ex in-laws, when he found out about the divorce, nor that her ex in-laws have issued a threat to kill the applicant due to shame associated with discussions with the applicant’s father following on from his gaining knowledge of the divorce. The Tribunal also does not accept that the applicant’s ex in-laws continue to harass and threaten her family in India. Further, the Tribunal finds that the applicant, should she return to India, would enjoy the protection and support or her family.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on her return to India either by reason of harm from her ex-husband or her ex in-laws.
Is there a real risk that the applicant will suffer significant harm on her return to India?
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), that being whether, on the evidence, there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For the reasons that are set out above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to India.
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.
Paul Noonan
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 6600

10 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Standing