1613385 (Refugee)

1613385 (Refugee) [2020] AATA 5191 (15 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613385
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Luke Hardy
DATE:15 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2020 at 3:12pm
CATCHWORDS
REFUGEE – protection visa – Nepal – victim of attack on vehicle – fears harm from Maoists – ongoing risk of harm by the Biplab splinter group – cessation of the civil war – relocation possible – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 and Border Protection on 3 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr [A], is a citizen of Nepal from Palpa district, which is just over eight hours’ drive from Kathmandu.[1] He departed Nepal for [Country 1] in 2013 and returned voluntarily to Nepal in the same year, and went back to live in Palpa district. He also lived in Kathmandu from July 2015 to January 2016.
[1] Refer to Google search:
Mr [A] entered Australia on a [temporary] visa [in] January [2016]. His visa was due to expire on 9 February 2016, on which day he lodged a protection visa application. The Minister’s delegate did not interview Mr [A], refused to grant the visa on 3 August 2016 on the basis that Mr [A] has an existing right to enter and reside in a third country, in this instance India, and had evidently not taken all possible steps to avail himself of that right: s.36(3) of the Act.
Mr [A] sought review of that decision by this Tribunal.
Mr [A] appeared before the Tribunal on 9 January 2020 to give oral evidence and provide arguments. He is unrepresented. The hearing was conducted through an interpreter in the English-Nepali medium.
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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 issues
The main issue in this case is whether, on accepted facts, Mr [A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his original protection visa application, Mr [A] claimed that he completed secondary school in [year] [in] Palpa district and went on to study for two years at [a University], withdrawing from studies in 2000.
Mr [A] claimed to the Department used to be self-employed in his parents’ business back in Nepal. In evidence before me he said his parents are both currently deriving income from a farm they own in [Village 1] in Palpa district.
Mr [A] told the former Immigration Department that Maoists attempted to kill him on various occasions. he said they caused “a[car]accident” on an occasion with a police escort that led to his being airlifted to Kathmandu for medical treatment. He indicated that on another occasion, a [car] owned by his father, in which he himself, was travelling was burnt. He said the Maoists kidnapped him on that occasion and released him later in exchange for a 50,000 rupee ransom. He promised the Department a more detailed written statement to come but none was ever provided either to the Department or the Tribunal.
Mr [A] told me that he and his father used to work as [Occupation 1] for [Company 1] , his father assigned to the area around [Village 1] and himself assigned to another part of Palpa district. He told me his father retired from working for [Company 1] around five or six years ago (around 2014) at [age], not so much due to his age but due, evidently, to low market demand: “No-one there … Hard to work. People [asking] for help.” He described the last factor as a case of poor people asking his father for charity [when he worked for Company 1]; apparently the job ceased to be worth the effort. He told me his father and mother now live off the farm and savings banked during the [Company 1] years.
Mr [A] described to me a brother who was sent my his parents to study university in Pokhara city. He said that his brother graduated [and] is currently working in [Country 2].
I asked Mr [A] if his work in Nepal had any relationship with his activities in Australia and he indicated that it did not. He said he went to Kathmandu to train with a [group]. He said he rented accommodation, with help from his parents, during the six months he stayed there. he seemed to indicate that he joined the [group] because it had become hard for him to stay in Nepal.
I asked Mr [A] about his work with [Company 1] and some of his responses struck me as confused: he said the job was “OK” and then said it was difficult because it was “hard to find help” but when I asked him what kind of help had he needed to find, he changed his evidence saying that “Maoist” people used to ask him for help. When I asked him to explain, before proceeding further, what he had meant by it having been hard for him to find help, he said that it was hard to work for a multinational company, here seeming to revert to indicating that he did not receive much support in the job. He did not suggest other than that he quit the [Company 1] job and moved to Kathmandu in July 2015.
I asked Mr [A] to tell me how he was able to be certain that it was Maoists demanding money from him when he was working for [Company 1], as he had just told me that when his father was asked for help it was merely poor people asking for charity. In response, he said that Maoists used to be active at that time. He said that Maoists “used to” ask people for help. I drew Mr [A]’s attention to his evident use of the past tense and his contextualising the harassment he was describing with expressions like “used to”. He said that now there is a splinter group called the “Biplab” group.
Mr [A] told me that Maoists burned his vehicle. I asked him for details about the vehicle that was burnt and he described it as his own private vehicle and no-one else’s. He told me the Maoists burned the vehicle in 2004 during an ambush on the road between Palpa and [Village 1] in 2004. He said that two police officers died and that he was taken to Kathmandu for treatment.
Mr [A] told me that the car burnt in the 2004 Maoist ambush was again that was attacked in 2006. He said his driver was driving it, with him as a passenger. He said that on this occasion he was kidnapped and ransomed for 50,000 rupees. He had told the Department that the vehicle attacked on this occasion as a “[car] owned by [his] father” and, when I raised this with him he said they both owned it. He confirmed that the Maoists had “bombed” the car in 2004. I asked him how the same vehicle could have been attacked given the fire damage caused in the first attack, and he said he repaired it using money from an insurance payout.
I put to Mr [A] that these incidents including the kidnapping for ransom all evidently occurred during the civil war between the state and the Maoists that ended formally in 2006 with the signing of a peace accord. DFAT refers to this in its Country Information Report: Nepal, dated 1 March 2019:
2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.
In response, Mr [A] said that there is still some low level activity from Maoists such as the Biplab group.
I asked Mr [A] about his parents’ day-to-day life in Palpa district and he did not suggest they faced any potentially relevant stresses. I recall his having told me they still reside in [Village 1]. In fact he said they enjoy an idle life there. However, when I put to him the potentially challenging position to the effect that this seemed to mean that his family faces no trouble from Maoists any more in their home region, he changed his evidence radically: he said his parents are being threatened and extorted in Palpa. I put to him that he had just changed his evidence quite radically and he said he had not. I showed him how his evidence had changed and asked him why his parents would have remained in Palpa district for a further half decade after retirement if they were living under such pressure. In reply, he said they move around a lot, but then added that they always return to live in Palpa. He said his parents could afford to do this with the money they had saved and they money they continued to earn. I asked him then why they would not use this money to move away from Palpa permanently, and he said that they could not afford to do so because of the cost. This struck me as an odd thing to say given that he had just said his parents maintained mobility on the proceeds of income from two sources. At this stage of the hearing, particularly in response to questions about life in Palpa since the end of the civil war in 2006, it struck me that Mr [A] was inventing and improvising evidence. Having considered all of the evidence in this matter overall, I have given some weight to this problem in my overall decision.
I asked Mr [A] why his parents could not simply move to Kathmandu or Pokhara, where they had sent his brother, and he simply said it would be hard to stay.
Taking my questions back to Mr [A] himself, I asked him why he, if he preferred not to live or risk living in Palpa, could not move to Kathmandu, where he had some past productive residential experience, or to Pokhara where his brother had been able for some time to reside. In reply, he said it is hard to get a job in Kathmandu. I put to him that nothing relevant seemed to have happened to his brother when he was living and studying in Pokhara and in reply he said his brother just went to Pokhara and then abroad. I asked him how long his brother had stayed in Pokhara and he said, “Three [to] four years.” I put to him that on this evidence Pokhara had not merely been a place of brief transit for his brother.
Mr [A] offered to try to obtain documentary evidence of the damage to the vehicle in 2004 and 2006, and evidence of the airlift to Kathmandu. I reminded him of the number of times the Tribunal, going back to 2016, had asked him to indicate and send any material he wished to submit in support of his claims, with nothing sent in response. I also put to him that the events he sought to “prove” were both events that he indicated as having been caused by the Maoist insurgency, and not one of its later splinter groups, in a rural area before the end of the civil war in 2006. I said to him that for this reason I was not inclined to grant a period. He offered no objection to this position. I did not grant a set time for further submissions. I indicated to Mr [A] that I would make a decision in due course on all of the evidence before me up to that time.
Further regard to DFAT information
DFAT further reports:
2.4   In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution of the first Assembly in 2012.
2.5   After repeated delays, elections for the second Constituent Assembly were held in November 2013. International observers described the elections as free and fair, with a voter turnout of 78 per cent despite threats of violence by a break-away Maoist group. The Nepali Congress (NC) and the Communist Party of Nepal (Unified Marxist-Leninist) or CPN (UML) were elected to govern Nepal under a coalition agreement that gave them an almost two-thirds majority in the Assembly. The UCPN-M, which had led the insurgency and had dominated the 2008 election, managed to secure only 80 of the 575 directly elected seats.
2.6 An 85 per cent majority vote by Constituent Assembly lawmakers on 16 September 2015 approved a new Constitution which was subsequently promulgated on 20 September 2015. The new Constitution was agreed upon after considerable negotiation and delays. The political stalemate surrounding the development of a new constitution had ended in June 2015 when the four major political parties agreed to proceed with negotiations, focusing on the key points of federalism, the form of government and elections, and the judiciary. Under the new Constitution, Khadga Prasad Oli of the CPN-UML was elected Prime Minister in October 2015.
2.7   On 25 April 2015 a 7.9 magnitude earthquake struck Nepal. The earthquake and its subsequent aftershocks killed an estimated 8,891 people and injured tens of thousands of people. Significant damage was incurred to national infrastructure, buildings and homes and reconstruction efforts continue several years after the disaster.
2.8   A border blockade was imposed, notionally implemented by Madhesi communities but unofficially blamed on India, from September 2015 to February 2016. The blockade caused shortages of fuel and other commodities throughout Nepal, severely affecting its economy.
2.9   Several changes of government, including realignment of coalitions, resulted in two further changes of Prime Minister before national elections were held over two phases in November and December 2017. These saw landslide results in favour of the Left Alliance comprised of the CPN-UML and the CPN-Maoist Centre parties. The two parties merged in early 2018 to form the Nepal Communist Party (NCP), which now holds a close to two-thirds majority in the Federal Parliament, led by Prime Minister KP Oli for his second term. The coming years will see Nepal’s complex transition to a new federalist system…
2.41   The overall security situation throughout Nepal has dramatically improved since the end of the [Maoist] conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs …), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years.
2.42 In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, … these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution…
3.41   Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low…
3.42   Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
3.43   Tens of thousands of people displaced by the long period of conflict in Nepal … remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
3.44   While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
3.45   Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.
Findings in relation to s.36(2)(a) of the Act

In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
Generally, I did not find Mr [A] a very reliable witness. I can accept that the two incidents in 2004 and 2006 did occur more or less as described, notwithstanding seeming inconsistencies and incongruities in evidence about the vehicle involved. I can accept these claims because I have no difficulty accepting that Mr [A] and his father worked in the Nepalese countryside for [Company 1], just the kind of entity in Nepal whose employees the Maoists would have wanted to punish harshly at the time. However, I give more weight in this decision to the cessation of the civil war in 2006 after the events described, to Mr [A]’s evidence of life returning to normal in Palpa after that, to his evidence of his father continuing to work for [Company 1] for almost a decade after the civil war ended, and to the observations provided by DFAT particularly at paragraph 3.45 of its recent Country Information Report: Nepal.
Mr [A] says he faces an ongoing risk of harm by the Biplab splinter group if he returns to live in Palpa, but his claims to this effect are reliant on what I consider to be invented and improvised claims about the circumstances of his parents there. I find these claims completely unreliable. Whatever role the Biplab group is trying to play in socio-political affairs in Nepal, I am not satisfied that its presence gives rise to a real chance of Mr [A] being persecuted in his home region in Palpa or in Kathmandu, for that matter, because when I asked him why he could not relocate to Kathmandu he did not provide any detail as to how the Biplab group would target him but merely said it would be hard to find a job there.
On the evidence before me, I conclude that Mr [A] does not face a real chance of being persecuted in his home region. If for any reason he prefers not to reside there, however, I find that it would be reasonable, as well as safe and practicable, for him to relocate to Kathmandu where he has rented accommodation, made contacts that helped him come to Australia and trained vocationally in the past.
On the evidence before me overall, I am not satisfied that Mr [A] faces a real chance of being persecuted in Nepal in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
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).
Findings in relation to s.36(2)(a) of the Act
Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"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. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that Mr [A] is a citizen of Nepal, I find that Nepal is the “receiving country” in this case.
I find that the harm Mr [A] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due in part to lack of credibility and overall to a failure to meet the “real chance” test. In the circumstances, his claims can no more succeed as complementary protection claims.
In the alternative, I would find that Mr [A]’s claims fail for reasons of the provision in s.36(2B)(a) regarding reasonableness of relocation to Kathmandu.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that Mr [A] will suffer significant harm.
Accordingly, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that Mr [A] 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 5191

15 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice