1616200 (Refugee)

1616200 (Refugee) [2017] AATA 156 (12 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616200
COUNTRY OF REFERENCE:                  Nigeria
MEMBER:Carolyn Wilson
DATE:12 January 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2017 at 1:04pm
CATCHWORDS
Refugee – Protection visa – Nigeria – Religion – Christian – Political opinion – MASSOB activists – Forced recruitment – Boko Haram – Internal relocation

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nigeria applied for the visa [in] September 2015. The delegate refused to grant the visa on the basis that his claims were not credible.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant is a citizen of Nigeria. He is married with children, and his family remain in the family home in Anambra State, Nigeria. The applicant has worked in a [products] business. He travelled to [Country 1] in 2010, where he remained for 4 years working to locate and export [products]. Although he held only a [short period] visa he decided to stay illegally in [Country 1] to ‘pursue this opportunity’.
The delegate’s decision discloses the following migration history.[1] He arrived in Australia [in] July 2015. He had a ticket to [City 1], although he first arrived in [City 2]. On arrival it was noted he had a number of business documents with him. He was interviewed by Immigration officers. He conceded he was in Australia for business purposes. His Tourist visa was consequentially cancelled and he was taken into detention. [Later in] July 2015 he was interviewed again by Department officers and asked if there was any reason he should not be returned to Nigeria. He claimed he could not return due to a fear of Boko Haram because he was Christian. It was not until he applied for a Protection visa [in] September 2015 that he raised for the first time that he feared harm from MASSOB and because of his involvement in MASSOB.
[1] The applicant provided a copy of the delegate’s decision record to the Tribunal, as part of his application for review.
The applicant’s Protection visa application was based on the following claims:
·The applicant grew up in Anambra State, Nigeria. From 1996 he worked as a [products] salesman, and pursued this work in [Country 1] from 2010 to 2014. He returned to his family in Anambra State in September 2014.
·In October 2014 he received a letter from MASSOB requesting he attend a meeting and become a member. He did not attend or respond.
·In November 2014 a container of [products] arrived from [Country 1]. He sold the contents for USD [amount].
·In] December 2014 about 8 members of MASSOB came to the applicant’s house. They asked why he didn’t respond to their letter, and then they beat him and took his $[amount]. The applicant did not report this incident to the police because they wouldn’t do anything to protect him, and they might think he was involved with MASSOB.
·[A few days later] members of MASSOB came to his house and demanded he attend a meeting with them. They apologised for taking his money, but said they were fighting for independence. They did not intend to harm him, and would return his money if he joined them. If he did not join they would kill him. The applicant felt he had no choice but to join.
·On [a date in] January 2015 he attended a MASSOB meeting with about 30 other people. He did not know anyone there. The meeting was interrupted by the police and everyone fled. About 10 members were arrested. The police were looking for people who attended the meeting so the applicant had to flee to another location. He went to a town called [Town 1], where he stayed until he left Nigeria.
·On or around [a date in] April 2015 militants from Boko Haram bombed his family village in [State 1], in northern Nigeria. His father and [siblings] were killed. He travelled to [his village] [a few days later], and returned back to [Town 1] with his mother, who had survived the bombing.
·[In] June 2015 he was granted a Visitor visa for Australia and on [a date in] July 2015 he left Nigeria.
The delegate gave weight to the failure of the applicant to raise his fears about MASSOB at the interview [in] July, when he was asked if there was any reason he should not be returned to Nigeria, and his failure to raise any claims about protection when he was questioned at the airport. For these reasons the delegate considered the claims were fabricated. The delegate did not accept the applicant, as a Christian who lived in the majority Christian south of Nigeria, had a well-founder fear of harm form Boko Haram or any other groups targeting Christians.
Application for review
No new claims were made on review, nor were any written submissions provided. The applicant provided a copy of his ticket to Australia and a photograph with his family.
At the hearing the applicant wanted to address the delegate’s conclusion that his failure to raise his claims earlier meant they were not credible. He said when he flew to Australia he was flying to [City 1]. Although his plane landed in [City 2], before he was to transfer to a flight to [City 1], he did not expect he would be clearing immigration in [City 2]. He was not prepared at that point to disclose his reason for coming to Australia, particularly as he feared he might be returned to Nigeria.
The Tribunal accepts the applicant did not appreciate, prior to arriving in Australia, that he would be clearing immigration in [City 2]. However, it should have been apparent to him on arrival that that was what was occurring. He claims that without an interpreter he did not fully appreciate what was occurring in the interview with Immigration officials and he did not comment when invited to in relation to their consideration of cancelling his Tourist visa, because he did not understand that was what they were going to do. The Tribunal accepts it is plausible that the applicant, who had arrived after a long flight, was not communicating in his first language, and did not expect to be clearing Immigration at that point, was not fully aware of the import of the interview and the importance of raising any claims for protection.
The Tribunal does not accept however that the applicant did not understand at the second interview that he was being asked why he should not be returned to Nigeria. He certainly understood enough to state he feared harm from Boko Haram. At that point in time he had not applied for a Protection visa and was facing possible removal and return to Nigeria. Were he genuinely fearful of returning to Nigeria, the Tribunal finds he would have put his best case forward.
The Tribunal finds the applicant has fabricated his claims to have been approached and threatened by MASSOB. The Tribunal makes this finding based on the applicant’s failure to raise the claim at the interview [in] July when he was asked why he could not be returned to Nigeria. The Tribunal also makes this finding on the basis of the applicant’s poor migration history, which the Tribunal finds affects his credibility and points to his real motives for coming to Australia. He resided and worked in [Country 1] for 4 years, when he had only a [short period] visa. He came to Australia on a Visitor visa with business documents in his possession. When asked at the airport as to his intention, he conceded he was not a tourist but was here for business purposes. The Tribunal finds the applicant came to Australia not to flee MASSOB or the police, but to work in the [same products] business as he had done in [Country 1], From the applicant’s perspective, a short term Visitor visa was no impediment for his doing so, as it had not stopped him residing and working in [Country 1] for a lengthy period.
Movement for the Actualization of the Sovereign State of Biafra (MASSOB)
The Tribunal has had regard to the following information on MASSOB contained in the DFAT Country Report Nigeria (10 February 2015):
Movement for the Actualization of the Sovereign State of Biafra (Massob)
3,24 Formed in 1999, the Movement for the Actualization of the Sovereign State of Biafra (Massob) campaigns for the independence of the Igbo people in the southeast region known as Biafra. The organisation reflects a lingering Biafran secessionist sentiment that has continued to exist since the end of the Nigerian Civil War (also known as the Biafran War) in 1970. Massob members are commonly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo.
3.25 Clashes between members of Massob and Nigerian security forces have occurred from time to time since 1999 and the federal government has threatened to ban the group on several occasions, most recently in June 2013. The current leader of Massob, Ralph Uwazuruke, has been arrested on at least four occasions while participating in Massob events. Uwazuruke was arrested in September 2005, for participating in a Biafra Day ceremony, along with six Massob deputies on charges of treason. Uwazuruke remained in custody for two years on a protracted bail hearing in the High Court. Most recently arrested in 2011, Uwazuruke was released shortly after on order of President Jonathon.
3.26 Massob supporters have been injured, arrested and killed when participating in protest rallies. Several local news services reported that approximately ten individuals were killed by government security forces on 9 June 2013 during a Massob protest in the southern state of Anambra. The Nigeria Police Force reported that security forces had acted in self-defense after attempting to stop the protesters from looting local businesses.
3.27 DFAT assesses that individuals associated with Massob live free from violence and discrimination on a day-to-day basis, however individuals participating in protests face a low risk of being arrested or injured by security forces. Leaders may face a higher risk of arrest when engaged in Massob events.
For the reasons given above, the Tribunal does not accept the applicant was approached by MASSOB and threatened to join. It follows the Tribunal does not accept he has a well-founded fear of persecution from the authorities for actual or perceived association with MASSOB.
The Tribunal notes the delegate’s research found no reports of forceful recruitment by MASSOB. The applicant was represented in his application before the Department, and country information was provided in support of his claims, but none of that discloses any evidence of forceful recruitment. There was evidence however of claims of MASSOB members extorting people, but such criminal action is not condoned by the movement and appears to be criminal in nature.
The Tribunal accepts the applicant is an Igbo man from southern Nigeria. He claims never to have been involved in any political activity in the past, until he claims he was targeted by MASSOB. The Tribunal does not accept he was targeted by MASSOB and forced to join. The Tribunal finds he does not have a well-founded fear of being targeted by MASSOB for harm, nor by the authorities for any perceived link to MASSOB.
The Tribunal finds that if it is wrong in its conclusion as to the credibility of the claims, the applicant could relocate to avoid the harm he claims to fear. After the alleged raid of the meeting in January 2015, the applicant claims to have left his home town and relocated to [Town 1]. He claims to have lived there for 6 months before coming to Australia. There is no claim he was followed to this location either by MASSOB or the police. There is no claim his family were harmed during this time, or since that time, in any attempts to locate him . There is no claim he was hindered in his travel to [State 1] to collect his mother. There is no claim he was hindered by authorities when departing Nigeria.
Boko Haram
The applicant claims to fear harm from Boko Haram because they target Christians. He claims his father and [siblings] were killed by a Boko Haram bombing, where they lived in [State 1], northern Nigeria.
The Tribunal has had regard to information contained in the DFAT Country Report Nigeria (10 February 2015) on Christians in Nigeria and the threat of Boko Haram:
2.3 Nigeria is historically divided between the north and south along religious and ethnic lines. Muslims and people of predominantly Hausa-Fulani and Kanuri ethnicity dominate the northern states, and Christians of predominantly Igbo and Yoruba ethnicity dominate the southern states. A mix of Muslims and Christians of various ethnicities make up the middle belt.
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2.6 Nigerians are fifty per cent Muslim, forty per cent Christian and ten per cent follow indigenous religious beliefs.
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222 The security situation in Nigeria is volatile and there have been numerous terrorist attacks in recent years. Nigeria’s north-east remains under a state of emergency due to the ongoing conflict between government security forces and the terrorist group, Jama’atu Ahlis Sunna Lidda’awati Wal-Jihad, known as Boko Haram. During the first half of 2014, over 1500 people died in the conflict between Boko Haram and government security forces.
2.23 Boko Haram has launched increasingly frequent attacks on both civilian and military targets, predominantly in the north-east but also in central Nigeria and in large urban centers such as Abuja. On 25 June 2014, a large explosion in Abuja caused more than twenty deaths and a large number of injuries, this followed earlier attacks in the capital in May and April 2014 which resulted in ninety deaths. On 20 May 2014, two car bombs killed at least 118 people and injured many more in Plateau state.
2.24 Southern Nigeria is also volatile due to confrontations between armed criminal groups and security forces predominantly in relation to the theft of and control over oil resources in the Niger Delta region. Inter-ethnic land disputes in central Nigeria, known as the middle belt, and the central north also escalated in 2014. Conflicts between the largely Muslim Fulani nomadic pastoralists and Christian farmers of the Berom tribe have traditionally been focused in Plateau state over the past decade. More recently the conflict has moved into the central northern states of Katsina, Nassarawa, Benue and Kaduna states.
Boko Haram
2.25 Boko Haram is a radical Islamic movement which seeks to impose a strict form of Sharia, or Islamic law, in northern Nigeria. ‘Boko Haram’ means ‘Western Education is Sinful’ in the Hausa language and the movement forbids Muslims from taking part in political or social activities they associate with Western society including voting in democratic elections or receiving a secular education. Despite its recent forays into Cameroon and rhetoric of establishing an Islamic state across the region, Boko Haram is primarily a domestic insurgency in Nigeria, not an international jihadist
2.26 Boko Haram was initially a fringe movement which provided social and financial help to Muslims and called for strict observation of Sharia. The group transitioned into an insurgency in 2009 following the extrajudicial killing of its founding leader, Muhammad Yusuf, when tensions with government security forces escalated over the application of Sharia law in the northeast states of Borno, Yobe and Adamawa. Since this time, Boko Haram have launched attacks against individuals seen as supporting the government, including police, military and politicians; individuals seen as supporting so-called Western concepts including secular education; as well as Muslims not supportive of their cause.
2.27 Boko Haram has carried-out targeted assassinations against Muslim preachers who refuse to join the group, including prominent clerics such as Bashir Kashara (killed in October 2010), Ibrahim Ahmad Abdullahi, a non-violent preacher (killed in March 2011), and Ibrahim Birkuti, a popular preacher (killed in June 2011). Most recently in July 2014 prominent moderate cleric Sheikh Dahiru Bauchi was targeted by a bomb attack in Kaduna.
2.28 In April 2014, Boko Haram abducted more than 200 female students from a secondary school in Chibok, Borno State. Schools in the area had been closed for weeks due to the ongoing violence; the girls had then returned to sit their final exams. The majority of the girls had not been released at the time of writing this report.
2.29 In 2013, the Office of the Prosecutor in the International Criminal Court (ICC) defined the fighting in north-eastern Nigeria to be a non-international armed conflict. The government has deployed thousands of troops to Borno, Yobe and Adamawa States but has thus far been unable to defeat Boko Haram. Credible international sources have expressed concerns over the lack of discipline being applied in military operations and accused the military of extra-judicially killing Boko Haram members (see ‘Extrajudicial Killings’, below).
2.30 The conflict in the north-eastern states of Borno, Yobe and Adamawa acts as a push factor for internal and external migration. Thousands of Nigerians have fled into neighbouring Chad, Cameroon and Niger in response to the conflict. Credible international sources expect Boko Haram will aim further attacks at Nigerian government and civilian targets in the lead up to the February 2015 national elections.
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Boko Haram – Christians and Muslims
3.14 Both Christians and Muslims have faced violence at the hands of Boko Haram due to their religious beliefs. Boko Haram opposes Christianity as well as less restrictive forms of Islam. Credible local and international sources advise that Boko Haram attacks Muslim communities more frequently than Christian communities and that individual Muslims have been kidnapped and assassinated by Boko Haram. It is considerably less common for Christians to be targeted individually.
3.15 There have been numerous attacks on predominantly Muslim occupied villages in the northeastern states of Borno, Yobe and Adamawa. In November 2014, Boko Haram fighters burnt homes, killed several people and occupied villages in Adamawa state. This continues a series of attacks committed across all three states under a state of emergency that since August 2014 that have resulted in over 500 deaths and 300 kidnappings. Numerous local government areas are now under direct Boko Haram control as a result. The girls who were abducted from Chibok in April 2014 by Boko Haram (see ‘Security Situation-Boko Haram’, above) are understood to be made up of a mix of Muslims and Christians. Christians have also been targeted in the northeastern states of Borno, Yobe and Adamawa and occasionally in the central state of Plateau. Boko Haram killed four Christians in Yobe, 25 Christians in Adamawa and six in Gombe in separate attacks in January 2012. The group destroyed two churches in Bauchi on 22 January 2012.
3.16 DFAT assesses that both Christians and Muslims face a moderate risk of violence from Boko Haram when they remain domiciled in the north-eastern states of Borno, Yobe and Adamawa, particularly if they are based close to the fighting. Attacks on Christians by Boko Haram are opportunistic and infrequent. Individual Christians are highly unlikely to be targeted. Many Christians have moved internally within Nigeria to escape the risks posed by the Boko Haram insurgency.

The applicant does not claim that he has been personally targeted by Boko Haram, and nor would the country information support such a claim. He claims family members were killed in a bombing perpetrated by Boko Haram in [State 1]. The Tribunal notes [his city] is a city in North-West Nigeria, a zone that is within the area of risk of harm from Boko Haram.
The applicant has lived most of his life in the southern state of Anambra in Nigeria. His wife and children continue to live there, without problems or incident. The country information does not support a conclusion that a Nigerian Christian in Anambra State faces a real chance of persecution from Boko Haram. Whilst it is possible Boko Haram could commit acts of terror targeting Christians in southern Nigeria, the Tribunal finds the country information indicates the chance is too remote to amount to a real chance.
The Tribunal finds the applicant does not have a well-founded fear of persecution for any of the reasons set out in s.5J. The Tribunal find he does not meet the definition of refugee as defined in s.5H, and therefore does not meet the requirements of s.36(2)(a).
The Tribunal has considered whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to Nigeria.
For the reasons given above, the Tribunal does not accept the applicant has been targeted in the way claimed by MASSOB. The Tribunal finds he does not face a real risk of harm from either MASSOB or from the authorities for a perceived association with MASSOB.
However, should the Tribunal be wrong on its conclusion that he has not been targeted or extorted by MASSOB, the Tribunal finds the applicant would be able to relocate to an area where there would not be a real risk he will suffer significant harm’: s.36(2B)(a). The Tribunal notes the applicant stated [Town 1] is a farming area where it would not be reasonable for him to make a living. However, the Tribunal finds the applicant was not pursued in [Town 1], and two years after the alleged meeting or extortion, finds he would not be pursued outside his home city. Were he to consider [Town 1] an unreasonable place to work, he could choose a more urban area in southern Nigeria to settle. Having set himself up with work in [Country 1] and attempted to do the same in Australia, he has shown himself to be a resourceful and capable person who could reasonably relocate within southern Nigeria.
In relation to Boko Haram, the Tribunal acknowledges the violent attacks by this group on Christians and Muslims in Nigeria. However, the attacks are concentrated in the north of Nigeria, and the Tribunal considers the risk of the applicant facing significant harm from Boko Haram as a resident in Anambra State is too remote to amount to a real risk.
The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).
Conclusion
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.
Carolyn Wilson
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.
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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.
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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.
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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.
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36Protection visas – criteria provided for by this Act
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(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.
…

[2017] AATA 156

12 January 2017

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction