1613818 (Refugee)

1613818 (Refugee) [2019] AATA 3909 (1 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613818
COUNTRY OF REFERENCE:                  India
MEMBER:Paul Windsor
DATE:1 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 March 2019 at 10:01am
CATCHWORDS
REFUGEE – protection visa – India – threats from criminal with political influence – vague and inconsistent claims – not supported by evidence – credibility issues – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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 2 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of India, applied for the visas on 17 July 2015. In the Protection visa application [the first-named applicant] claimed to fear that he, his wife and their child will be killed by [Mr A] who he claims has a criminal and strong political background and became [the first-named applicant]’s enemy after his marriage. The delegate refused to grant the visas on the basis that the applicant provided minimal information and no evidence to support his claims, did not take advantage of an opportunity to discuss his claims in more detail at an interview, did not apply for protection until July 2015 after arriving in Australia in 2007, despite claiming to have received continuous threats from [Mr A] in the months before coming to Australia, and considering that both he and his wife have returned to India, in the case of his wife including on two occasions without her husband.
The applicants applied to the Tribunal for review of this decision on 30 August 2016. They provided the Tribunal with a copy of the delegate’s decision record.[1]
[1] See folios 18-23 of the Tribunal file
[The first-named applicant] appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. [The second-named applicant] and [third-named applicant] did not attend the hearing. The Tribunal hearing was conducted in the English language, without an 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the Protection visa application [the first-named applicant] claims to be a citizen of India who was born in [State 1,] India on [date]. He states that he belongs to the Brahmin ethnic group, is a Hindu, and speaks, reads and writes English and Hindi. He indicated he was married [in] 2007 in [State 1]. He indicated he most recently departed India legally [in] June 2010 and arrived in Australia [in] June 2010, entering on a Student visa. He indicates that [the second-named applicant], who was born in [State 1] on [date], is his wife and [the third-named applicant], who was born in [City 1,] Australia on [date], is his son. [2]
[2] See folios 5-40 of the Departmental file.
Claims from the Protection visa application
The claims from the Protection visa application are summarised as follows: [3]
·He fears that if they have to return to India there is a strong possibility he, his wife and their child will be killed by [Mr A] who became his enemy after he married his wife. He has been getting continuous threats from this man.
·They haven’t experienced any physical harm when they were in India but threats to their lives were made from time to time by [Mr A] who is a criminal and political backed person. He started enmity after their marriage and threats have been continuously received made by his persons at their home, if they return there.
·They cannot trust the police as [Mr A] is a politically strong man and has a criminal background.
·They were hiding to save themselves for nearly eight months, moving from one place to another. The period from May 2007 until December 2007 was very stressful and fearful for them so they moved to Australia on Student visas [in] December 2007.
·Their family back in India have been threatened several times, on various occasions, that they will face serious consequences on their return and that the three of them will be killed. They cannot take the risk that persons of a criminal nature, who can kill merely for money, will kill them on their return.
·The authorities and police are corrupt and due to their strong political/criminal background they will get to know their whereabouts if they return to India.
·These people have a network so can locate them anywhere in India.
[3] See folios 62-63 of the Departmental file.
Findings and reasons
The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of India, there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Identity
On the basis of the copies of the applicants’ Indian passports provided to the Department, the Tribunal accepts that the applicants are citizens of India and that their identities are as claimed. The Tribunal accepts that India is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. Noting the copies of the marriage certificate and [the third-named applicant]’s birth certificate provided the Tribunal also accepts that [the first-named applicant] and [the second-named applicant] are husband and wife and that [the third-named applicant] is their son.[4]
Credibility
[4] See folios 57-64 of the Departmental file.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Assessment of claims
[The first-named applicant] claims that to fear that if they return to India he, his wife and their son will be harmed or killed by [Mr A] or his agents because [Mr A] became his enemy after he and his wife married.
Fear of harm from [Mr A]
At the hearing [the first-named applicant] indicated that he was born and grew up in [Village 1] in the [District 1] of [State 1] in India. He said his wife was from [Village 2], located [a number of] kilometres away in the same district. He indicated that their marriage [in] 2007 was arranged by their parents. He said that after they were married they went to live in his parent’s home in [Village 1].
The Tribunal asked [the first-named applicant] what problems he had with [Mr A]. He said that a little bit after they were married [Mr A] started giving them trouble so they came to Australia. When asked where he was living after they were married [the first-named applicant] said at first they were living in his home town with his parents but then moved to live with friends in [City 2] in [State 2], [a number of] hours’ drive away. When asked how long they stayed in [City 2] he said one to two months but then corrected that to one and a half months.
The Tribunal asked [the first-named applicant] how he knew [Mr A]. He said [Mr A] has some businesses and indicated his wife used to work for [Mr A] as a [Occupation 1] at [a business]. He commented that [Mr A] also contested a local government [election] but was unsuccessful. [The first-named applicant] said [Mr A] kept asking his wife why she was marring him and telling her she would be sorry. He said they did not take it seriously then [Mr A] came looking for him and he got phone calls.
The Tribunal asked [the first-named applicant] why he had stated in the Protection visa application that [Mr A] is a strong political person when he had indicated [Mr A] ran unsuccessfully at the local council level. [The first-named applicant] said [Mr A] was a worker for [named party] and they do ‘a lot of stuff’ and have contacts.
The Tribunal asked [the first-named applicant] why he had described [Mr A] as a criminal. [The first-named applicant] replied that in India a lot of people doing white collar work look good and like they are running good businesses but they do ‘a lot of bad stuff’. He commented that if people do something [Mr A] doesn’t like his boys go there and bash them. He added that he doesn’t have any proof of that.
The Tribunal asked [the first-named applicant] why he and his wife moved to [City 2]. He said they moved to try to get away from [Mr A]. When asked what [Mr A] was doing he said [Mr A] was calling him, visiting him. He commented that [Mr A] is a ‘big man’ and was using tricks, getting his friends to call him and tell him he should get divorced. The Tribunal asked [the first-named applicant] why [Mr A] would say he should get divorced when his marriage was an arranged marriage organised by his and his wife’s families. [The first-named applicant] replied that [Mr A] was not saying this directly but was getting others to say it.
The Tribunal asked [the first-named applicant] when he returned to [Village 1] from [City 2]. He said it was about a month before they came to Australia [in] December 2007, that is, around the end of November 2007. The Tribunal put to [the first-named applicant] that in his written statement of claims he indicated that he and his wife spent eight months in hiding from May until December 2007, rather than one and a half months. [The first-named applicant] replied that what he meant was they began hiding meaning they were trying to avoid [Mr A] but as time went on they were getting more and more visitors sent by [Mr A]. He said they were ‘going around and coming back’.
The Tribunal discussed with the applicant that the documents they had provided to the Department indicated that he had returned to India with his wife and child [in] May 2010 and, while he returned to Australia [a number of] days later [in] June 2010, his wife and child remained in India for over four months [until] September 2010; and his wife and child also returned to India without him for over four months in 2012-13, departing Australia [in] October 2012 and returning [in] February 2013. At the hearing [the first-named applicant] also indicated that his wife returned to India alone in [year] when she was pregnant with their son (their son was born in [City 1] on [date]). The Tribunal queried [the first-named applicant] why they returned to India and why his wife and children stayed for such lengthy periods, given the claims that they fear harm or death from [Mr A] and his agents. [The first-named applicant] replied that [Mr A] wanted to harm him only. He then said [Mr A] wanted to harm him more. [The first-named applicant] indicated that when he returned to India with his wife and son they went to his home town of [Village 1] but they ‘came and went’. The Tribunal asked [the first-named applicant] if he went anywhere else. He replied ‘no’. He commented that [Mr A] came to know he had returned to India but did not contact him directly but rather sent his men to ask him to leave his wife in India and to leave her alone. The Tribunal asked [the first-named applicant] if that was the case why his wife and son stayed on in India without him for another three months. [The first-named applicant] replied that [Mr A] loves his wife and while [Mr A] might contact her it is he ([the first-named applicant]) who is in more trouble.
The Tribunal also queried [the first-named applicant] about his Immigration history as documented by the delegate in his decision record, asking him why he delayed making a Protection visa application until July 2015 after arriving in Australia in December 2007, including after periods as an unlawful non-citizen, if he feared harm or death from [Mr A] and his agents. [The first-named applicant] indicated that he was not aware that he was ever an unlawful non-citizen and said he was confident that he could succeed in Australia as a student. In this context it became clear that the delegate had made an error in the decision record where he stated that the Protection visa application was lodged in July 2016 when it was actually lodged on 17 July 2015. Nonetheless, the Tribunal asked [the first-named applicant] why he did not apply for a Protection visa earlier given he had been refused a further Student visa on 6 March 2015 but sought review of this decision by the Migration Review Tribunal, which affirmed the delegate’s decision on 1 June 2015. [The first-named applicant] indicated that it was the same reason, he thought he could succeed as a student. [The first-named applicant] also indicated that there were tensions and stresses in his and his wife’s relationship, that she had suffered a little bit of depression, that they had argued and he had slapped her and that he had subsequently been instructed to undertake a men’s behavioural program. He commented that they were a little mentally disturbed.
The Tribunal also asked [the first-named applicant] about the delegate’ comment that he had not taken up an invitation made on 17 August 2015 to contact the Department to request an interview to discuss his claims in more detail and as a consequence his application had been decided on the information before the delegate. [The first-named applicant] indicated that his migration agent at the time had not passed this information on to him. He indicated that he was not sure why his Student visa was refused but believed that his agent had not provided the necessary documentation to the Department. When asked why he sought review of the decision to refuse him a Student visa he said he was not sure but indicated he was using an agent. He indicated that he had heard subsequently that this agent’s licence had been cancelled. The Tribunal accepts [the first-named applicant]’s evidence that he did not request an interview with the Department to discuss his protection claims because his agent never passed on to him the advice from the Department indicating that he could request such an interview.

In general, the Tribunal found [the first-named applicant]’s evidence to be vague, lacking in detail, inconsistent and improbable and does not accept that he and his wife or his family members were threatened with harm or death by [Mr A] or [Mr A]’s agents. [The first-named applicant]’s comments regarding why there was enmity between him and [Mr A] were vague and unconvincing. While he stated that [Mr A] was in love with his wife and that she had worked in one of [Mr A]’s businesses, he did not indicate that [Mr A] had courted his wife or asked her to marry him, only that he had told her she shouldn’t marry [the first-named applicant]. Given this and the fact that the marriage between [the first-named applicant] and [the second-named applicant] was an arranged marriage organised and endorsed by their families, there does not seem to be any reason for any lasting enmity between [the first-named applicant] and [Mr A].
[The first-named applicant] was similarly vague in relation to why he described [Mr A] as a criminal and as a politically backed person. When queried about this [the first-named applicant] merely indicated that [Mr A] was an unsuccessful [candidate] in a local government election who, [did] ‘a lot of stuff’ and had contacts, without expanding on what he did or who his contacts were and how they made him a ‘politically strong man’ with influence among local authorities and police. Similarly, when asked about [Mr A]’s criminality he spoke in generalities about how white collar workers who seemed to be running good businesses actually do a ‘lot of bad stuff’ and how [Mr A] has boys who bash people, without providing any examples and adding that he has no evidence of this. [The first-named applicant] also indicated in his written statement he and his family hadn’t experienced physical harm when they were India and did not raise anything at the hearing that indicated or suggested this was not the case, despite [Mr A] and his agents appearing to have had many opportunities to harm or kill the applicants while they were in India if this was their intention. In this context it is highly relevant that [the second-named applicant] returned to India while pregnant with her son in [year], all three family members returned to India in May 2010 and while [the first-named applicant] returned to Australia after [a number of] days, [the second-named applicant] and [the third-named applicant] stayed in India for in excess of four months, returning to Australia [in] February 2013, and returned to India again for in excess of four months from October 2012.
At hearing [the first-named applicant] contradicted his written statement that he and [the second-named applicant] were in hiding for nearly eight months before they came to Australia to save themselves, stating that they went to [City 2] for one and a half months. When this inconsistency was pointed out to [the first-named applicant] he made vague and unconvincing statements about them ‘going around and coming back’.
When queried about where they stayed when all three family members returned to India in May 2010 [the first-named applicant] initially said they went to his home town of [Village 1] but commented vaguely that they ‘came and went’. When pressed on whether they stayed anywhere else, however, he indicated they did not.
When pressed on why his wife and child had spent so much time in India if the family was fearful of [Mr A], [the first-named applicant] also contradicted his written statement that [Mr A] ‘want all three of us (myself, spouse & my child) to be killed’ by claiming that it is him that [Mr A] wants to harm rather than his wife and child, that [Mr A] loves his wife and it is he ([the first-named applicant]) who is more in trouble. The Tribunal again found this explanation for the inconsistency in [the first-named applicant]’s account to be unconvincing.
The Tribunal accepts that if [the first-named applicant] has had any periods as an unlawful non-citizen they were only brief and has not given any weight to this. While noting [the first-named applicant]’s comments that he did not apply for protection sooner after arriving in Australia in December 2007 because he always thought he could achieve permanent residence through a Student visa pathway, and that he and his wife were experiencing some difficulties in their relationship at the time and were a little mentally disturbed, the Tribunal does give some weight to the fact that [the first-named applicant] sought merits review of the decision on 6 March 2015 to refuse his fifth application for a further Student visa after his arrival in Australia rather than seek protection. It was not until after [the first-named applicant] was unsuccessful in his review application that he applied for a Protection visa on 17 July 2015, over seven and a half years after he came to Australia claiming to have been in hiding in India in 2007 because of continuous ‘life threats’ from [Mr A]. The Tribunal considers that if [the first-named applicant] and his family had really faced serious life threats from [Mr A] since 2007 they would most likely have sought protection sooner than they did.
After careful consideration of all the evidence the Tribunal does not accept that [Mr A] and/or his agents have ever threatened to harm or kill any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] or threatened members of their families that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] will face serious consequences on their return to India. Consequently the Tribunal does not accept that any of the applicants face a real chance of persecution involving serious harm for any of the five reasons set at a s.5J(1)(a) of the Act from [Mr A] and/or his agents should they return to India now or in the reasonably foreseeable future.
As the Tribunal does not accept that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] will face a real chance of persecution involving serious harm from [Mr A] and/or his agents should they return to India the Tribunal finds that they do not require the protection of the Indian authorities.
Complementary protection
Having concluded that none of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] 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 has found there is not a real chance that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] would suffer persecution involving serious harm from [Mr A] and/or his agents, if they returned to India. In considering whether there is a real risk that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] will suffer significant harm if returned to India, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[5]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to the findings of fact set out above, the Tribunal also finds that there is not a real risk that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] would suffer significant harm as defined at s.36(2A)(a)-(e) of the Act. That is, the Tribunal does not accept that there is a real risk that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] will be arbitrarily deprived of their lives; and/or will have the death penalty carried out on them; and/or will be subjected to torture; and/or will be subjected to cruel or inhuman treatment or punishment; and/or will be subjected to degrading treatment or punishment, by [Mr A] and/or his agents including criminal agents, the Indian authorities including the Indian police, or anyone else, as a necessary and foreseeable consequence of any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] being removed from Australia to India.
Consequently, The Tribunal is not satisfied that any of [the first-named applicant], [the second-named applicant] and/or [the third-named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that any of [the first-named applicant], [the second-named applicant] and [the third-named 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, none of the applicants satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Windsor
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 3909

1 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction