1613918 (Refugee)

1613918 (Refugee) [2019] AATA 4805 (20 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613918
COUNTRY OF REFERENCE:                  Israel
MEMBER:Mara Moustafine
DATE:20 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 May 2019 at 12:05pm
CATCHWORDS
REFUGEE – protection – Israel – imputed political opinion – military service – conscientious objector – discharged from military service – fear of performing reserve duty – credibility issues – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
Mehenni v MIMA [1999] FCA 789
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 25 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of Israel. He first arrived in Australia on a [temporary visa in] September 2009, which was valid until 2 May 2010. He entered and departed on two occasions and last arrived [in] February 2010. He remained in Australia unlawfully after his visa expired. He was located by [State] Police [in] August 2015 and taken into detention. The Department refused his applications for an 8503 waiver and Bridging visa WE-050. However, on appeal to the AAT, the applicant was granted a Bridging visa on 14 September 2014 on departure grounds.
The applicant applied for a protection visa on 28 September 2015. A delegate of the Minister refused to grant the visa on 25 August 2016.
On 31 August 2016 the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which he provided to the Tribunal for the purposes of the review.
Protection visa application
According to his protection visa application, the applicant was born in [year] in Beersheva, Israel and lived in Jerusalem. After completing his education, he was conscripted into the Israeli Defense Forces (IDF) for [a number of] years of [military] service between [year]. He worked in [an occupation] in Jerusalem before coming to Australia.
Essentially, the applicant’s claims, as set out in a statutory declaration submitted with his application, are that he fears he may be harmed, including imprisoned, on the basis of his imputed political opinion. He claims he does not wish to serve in the IDF as he is a conscientious objector to the military conflict between Israel and the Palestinians. The applicant stated that, having witnessed multiple suicide bombing incidents by Palestinians against Israeli civilians, as well as violence by the Israeli army against Palestinians, he does not believe in the use of violence and military conflict.
The applicant claims that he only served [a number of years] of military service as he was discharged early on the basis of being a conscientious objector. He claims that, although it was ‘extremely rare and difficult for a soldier to be discharged early from military service’, the Israeli military thought it would be in the army’s best interest for him to leave early as he had caused ‘several issues’, including abandoning his post, protesting and faking medical absences in order to avoid participating in the army. He believes he was only able to achieve this because he was ‘treated as an exception to the rule’ and his direct supervisor ‘shielded him from the army’s wrath’. He does not believe that he ‘will be [so] fortunate in the future’.
The applicant claims that he left Israel because Israeli citizens between the ages of 18 and 40 are conscripted to serve in the army at time of conflict or during random operations and after completing military service, they must serve as an army reserve for at least 54 days every three years until the age of 40. He could not object to this in Israel ‘because in Israel you are imprisoned if you object to this’. He fears that if he returns to Israel he will be conscripted to fight against his will and may be imprisoned by the Israeli army or killed in action for refusing to participate in military operations against Palestinian militant groups.
Department interview
The applicant attended a Departmental interview on 13 July 2016. The Tribunal has listened to the audio recording of the interview and is satisfied that the summary of the interview in the Decision Record dated 25 August 2016, provided to the Tribunal by the applicant is accurate. Where relevant the applicant’s oral evidence to the delegate is discussed below.
Among other things, the applicant told the delegate that he was discharged from his [military] service as ‘not suitable’ after [a number of years] of ‘playing the system’ to avoid active duty, including by fabricating medical ailments, although he also sustained a genuine [injury] while training. In 2007, he was recalled for reserve duty but provided medical documentation of a [Medical condition 1] to exempt him from duty. The applicant feared that if he returned to Israel, he would be forced to perform reserve duty and might be killed in action or be imprisoned if he refused to do so. He also feared the general security situation due to terrorism.
Department’s decision
In refusing to grant the applicant a protection visa on 25 August 2016, the delegate found that the applicant’s fear of serious or significant harm arising from his being called up to serve in the army reserve was not well founded, given his evidence regarding his medical ailments, his early discharge from military service on the grounds that he was ‘not suitable’ and country information regarding budget cuts to the army reserve. Further, she found the harm feared by the applicant as a result of the general security situation in Israel was not faced by him personally, but by the population generally.
Review Application
The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal discussed with the applicant his background, family, migration history and claims for protection. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Credibility
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the 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 make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, reasons and findings
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
The applicant’s key claim is that he fears returning to Israel because he does not wish to perform [military] service in Israel as he is a conscientious objector to the military conflict between Israel and the Palestinians and is opposed to the Israeli government’s treatment of Palestinians. He fears that he may be forced to perform reserve duty and might be killed in action or be imprisoned if he refused to do so.
For reasons outlined below the Tribunal has concluded that the decision under review should be affirmed.
In a discussion of his migration history, the applicant confirmed that he came to Australia in 2009 on a multiple [temporary] visa. He came to travel around Australia and did not, at the time, have any intention to remain here. But after some [months] he decided he did not want to return to Israel so remained unlawfully in Australia after his visa expired until he was apprehended for a traffic offence in 2015. After being granted a Bridging visa on the grounds that he would leave Australia, the applicant applied for a Protection visa on the advice of his lawyer. At the time he was in a relationship with a temporary resident, with whom he had an infant child. The applicant said he was no longer together with this woman, who had returned to [another country] and Israel with their child. For the past three years he has he been in a relationship with an Australian citizen.
As discussed with the applicant, the significant delay between his arrival in Australia and his application for protection six years later raises serious doubts about the credibility of his claims. While the applicant claimed that he only learned about the existence of a protection visa from the lawyer he engaged to assist him with his Bridging visa application after he was apprehended for a traffic offence, the Tribunal notes that during those six years the applicant remained in Australia unlawfully and made no effort to address his visa status.
The applicant’s credibility is further undermined by the fact that he made no mention of his fear of or objection to serving in the Israeli Army during his Compliance interview conducted by the Department on 22 August 2015, after he was taken into detention after his traffic offence. Asked at questions 3 and 22 if there were any reasons he did not want to live in Israel or could not return there, the applicant stated: ‘I have lived in Jerusalem and been next to a bomb attack. I am with a woman and I don’t want to leave my child here’ and ‘Just want to stay in Australia. I love Australia. I feel safe in Australia’. The Tribunal discussed this information with the applicant in accordance with s.424AA of the Act, noting that it raised doubts about his truthfulness and general credibility. The Tribunal observed that someone who had a genuine fear of returning to Israel because of an objection to serving in the IDF would have raised it during the Compliance interview.
The Tribunal finds disingenuous the applicant’s response that he thought ‘it was obvious’ that he did not want to serve in army when he told the officer that he felt safe in Australia. As put to the applicant, there could be many reasons why a person might not feel safe in their country, ranging from problems with the police to issues with a family member and the Tribunal does not accept that his fear of serving in the army was implicit in his statement that he did not feel safe in Israel. In the Tribunal’s view, the applicant fabricated his claims for the purpose of seeking a protection visa in order to remain in Australia.
The applicant confirmed that he had never experienced serious harm in Israel in the past or had problems with the Israeli authorities, although he had witnessed terrorist incidents. As discussed with the applicant, the Tribunal accepts that, as a result of the ongoing Israeli-Palestinian conflict, the security environment in Israel and the Occupied Territories is unstable and innocent civilians on both sides may become the victims of terrorist or violent incidents. However, this is a situation faced by the population generally and not one that targets the applicant for any of the reasons amounting to persecution under s.5J(4)(a). At hearing, the applicant indicated that he recognised this.
The Tribunal has considered the applicant’s claim that he may be harmed, including imprisoned, because he does not wish to serve in the IDF and is a conscientious objector to the military conflict between Israel and the Palestinians. At the beginning of his hearing, the applicant offered to show the Tribunal media materials on his computer from a number of non-government organisations opposed to the Israeli occupation of the West Bank and Gaza Strip, including B’Tzelem (The Israeli Information Center for Human Rights in the Occupied Territories) and Breaking the Silence. The Tribunal indicated that it was aware of reports from these organisations and, as the applicant confirmed that these materials did not relate directly to him, but to the general situation, did not examine the reports further, although the applicant was advised that he was welcome to submit printed copies to the Tribunal.
Based on country information, including that referenced in the Department’s decision, the Tribunal accepts that military service is mandatory for Israeli citizens both within Israel and abroad; that conscientious objection that does not involve complete pacifism is not an acceptable ground for exemption; and that those who fail to attend for military service without exemption could and do face jail time[1]. The Tribunal is prepared to accept that the applicant is opposed to the Israeli government’s policies towards the Palestinians and does not wish to serve in the army for this reason. However, as discussed with the applicant, Israel’s conscription law is a non-discriminatory law of general application. As noted in the Department decision, according to Australian case law, failure to comply with such a law will not usually engage Australia’s protection obligations[2].
[1] ‘Israel Military service, including age of recruitment, length of service, grounds for exemption, and availability of alternative service (March 2009-January 2013)’, Canada: Immigration and Refugee Board of Canada (IRB), 13 February 2013, ; ‘Exemption from military service in Israel- main legal provisions’, New Profile - movement for demilitarization of Israeli Society, 18 July 2016, ‘Dozens of legal experts appeal to MAG over conscientious objector’, Jerusalem Post, 07 May 2016, Dozens-of-legal-experts-appeal-to-MAG-over-conscientious-objector-459589.
[2] Lehane J in Mehenni v MIMA [1999] FCA 789
Significantly, by his evidence at hearing, the applicant already completed his [military] service between [dates], serving in the Air Force [in various positions at a] [IDF] base in [Israel] and never in a combat role. Moreover, he received an early discharge after [some time] on medical grounds due to [an] injury suffered during training. He said he had provided his discharge certificate to the Department and this is noted in the Department’s decision. The applicant confirmed that his current claim related to his fear that, if he returns to Israel, he will be forced to do reserve duty and perform ‘illegal acts’ or be involved in abusive and violent activities against Palestinians. This was the only reason he feared returning to Israel.
The Tribunal does not consider this fear to be well founded. As discussed with the applicant, the Israeli government’s policies regarding the army reserve has changed significantly over the [years] since he was last in Israel. This has included ‘massive cuts in reserve duty’ with the number of reserve duty days performed dropping by 83 percent and the number of Israelis called up for reserve duty cut by 100,000 under the current IDF Chief of Staff. The changes were made to cut costs but also reflected a change in warfare and technology[3]. In light of his own evidence to the Tribunal that he had been discharged on medical grounds (paragraph 29), was deemed as ‘not suitable’ for service (paragraph 10) and last underwent training [many] years ago, the Tribunal finds it dubious that he would be recalled for duty at a time that the IDF was rationalising its reserve service. The applicant responded that he did not know about the cuts so could not comment, only that his friends did reserve duty, as had his father 10 years ago. The Tribunal does not give these comments weight as they are, at most, based on hearsay.
[3] Hagi Amit, ‘The Israeli Army’s Big Windfall – Massive Cuts in Reserve Duty’, Haaretz, 29 October 2018, type="1">
Further, the Tribunal is concerned at inconsistencies in the applicant’s evidence as to why he was discharged early from his military service and whether or not he had ever been called up for reserve duty. While the applicant told the Tribunal that he was discharged after [some time] due to [an] injury sustained in training (paragraph 29), in his statutory declaration he claimed he got an early discharge on the basis of being a conscientious objector and causing, ‘several issues’, including abandoning his post, protesting and faking medical absences (paragraph 7), while he told the Department at interview that he was discharged as ‘not suitable’ after [a number of years] of ‘playing the system’, including by fabricating medical ailments, although he did mention that he sustained a genuine [injury] while training. Further, while the applicant told the Tribunal at hearing that he was never called up for reserve duty because he had departed Israel, he told the Department at his interview that he was recalled for reserve duty in 2007, but provided medical documentation of a [Medical Condition 1] to exempt himself from duty (paragraph 10). These inconsistencies raise further doubts about the applicant’s truthfulness and the general credibility of his evidence.
Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Israel and the reason he fears harm there. The Tribunal is prepared to accept that the applicant may be opposed to the military conflict between Israel and the Palestinians, the Israeli government’s treatment of Palestinians and does not wish to perform reserve duty. Based on the discharge certificate provided to the Department and his evidence at hearing, the Tribunal is prepared to accept that the applicant received an early discharge from military service on medical grounds. However, it does not accept that he was discharged as a conscientious objector, or was deemed ‘not suitable’ after two plus years of ‘playing the system’ to avoid active duty or for causing ‘several issues’, including abandoning his post, protesting and faking medical absences. Nor is the Tribunal satisfied that he was recalled for reserve duty in [date]. It follows that the Tribunal is not satisfied that, if he returns to Israel, the applicant will be conscripted to fight against his will, harmed on the basis of his imputed political opinion; forced to perform reserve duty and perform ‘illegal acts’ or be involved in abusive and violent activities against Palestinians; nor that he will be imprisoned by the Israeli Army or killed in action if he refuses to do so.
The Tribunal accepts that the applicant wishes to stay in Australia, loves Australia and feels safe in Australia. In the Tribunal’s view, he fabricated his claims for the purpose of obtaining a protection visa in order to remain in Australia.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Israel the applicant will suffer serious harm amounting to persecution for reasons of his political opinion or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should he return to Israel now or in the reasonably foreseeable future.
The Tribunal has also considered the applicant’s claims under complementary protection. As it has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a protection visa, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Israel, there is a real risk that he will suffer significant harm.
Non-disclosure certificate
In the course of the hearing the Tribunal discussed with the applicant that there were two non-disclosure certificates on the Departmental file issued under s.438(1)(a). The Tribunal considers the first certificate as invalid as it refers to internal deliberations of the Department. It covered materials related to the applicant’s Bridging Visa application and no further stay waiver request and includes materials provided by him, as well as the decisions of the Department and Tribunal, correspondence regarding his detention and custody transfer from the police to the Department of Immigration. With the exception of information from his Compliance interview, which the Tribunal raised with the applicant in the context of s.424AA of the Act at paragraph 24 above, the Tribunal did not find these materials relevant to its considerations. The second certificate, which the Tribunal accepted as valid, covered information received from police by email on 12 May 2017, whose disclosure was deemed contrary to public interest as it identified the Department’s methods and procedures with law enforcement authorities for preventing, detecting, investigating and dealing with matters arising out of breaches of the law. The email referred to the charges against the applicant, which were set down for hearing [in] July 2017. The Tribunal does not consider this information as relevant to its consideration of the applicant’s protection claims. The applicant declined to comment on these certificates.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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 4805

20 May 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Standing

Statutory Construction