1616796 (Refugee)

1616796 (Refugee) [2019] AATA 5937 (26 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616796
COUNTRY OF REFERENCE:                   Turkey
MEMBER:Rodger Shanahan
DATE:26 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 July 2019 at 2:24pm

CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurd – political opinion – support to pro-Kurdish parties – evasion of military service – credibility issues – Kurdish language proficiency – conscription buy out scheme – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65
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 on 28 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 Turkey, applied for the visa on 23 November 2015.
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.
CLAIMS AND EVIDENCE
Protection Via Application
The applicant claimed that he would be severely harmed on return to Turkey because of his political opinion (support to pro-Kurdish parties) and his ethnic identity. He claimed that he came from a Kurdish family in Turkey. His parents and older brother still live in Denizli. His grandparents came from Diyarbakir to the [named] district but when his father began dating his mother there they received threats from Turkish people because they were Kurdish and so moved to Denizli to marry and settle.
He was called Kurdish at school as a tease and learnt some Kurdish words from his father but didn’t learn to speak the language. He had many questions about Kurdishness and read books and asked his father questions but his father tried to dissuade him from having an interest. He had other Kurdish friends at school and they began attending Nowruz and May Day celebrations in [year]. By this stage he had only been threatened by police and ultra-nationalists.
He studied [a course] at university after school and lived on campus in [a named town], returning home between semesters. He met many Kurdish students at university and spent most of his free time with them. Ultra-nationalists were in the university security contractors and one of them threatened him for hanging with Kurdish students.
In [year] he was protesting against the Higher Education Council and was arrested by police, had his ID details taken and then beaten before being released. He was bruised and in pain but he was too scared to seek medical attention. In [year] police conducted searches in the dorms escorted by campus security – the police questioned him in his room about hanging around with Kurdish separatists in the uni and he denied this.
At the end of the semester he returned to Denizli and attended the DTP offices despite receiving threats from ultra-nationalists. In April 2009 ultra-nationalists attacked him and others at the campus but he wasn’t hurt severely. Police intervened but only arrested his friends but he went and stayed at a friend’s house.
Around 0300 the police raided his friend’s house and they were all taken to the anti-terror unit for about 20 hours and interrogated in relation to the fight. He was asked about his political involvement, he denied he had any but he was assaulted and then released with warnings and threats.
He finished studies in [year] and began working at a company selling [products] in Denizliu. He attended the DTP offices some evenings and on the weekend. He established his own business in February 2012.
In early July 2009 the DTP office was burnt down by unknown people and he was concerned for his safety. When DTP was closed in December 2009 the officials released a media statement but hundreds of nationalists gathered and threatened them. The police intervened and the nationalists left.
He continued his political participation with the youth branch of BDP and he attended events in Izmir because Denizli wasn’t safe. He couldn’t attend the BDP office from late 2011 because he was busy establishing his business. He was questioned about people in the BDP and accused of being in YDG-H but he denied this, they believed him and left.
In September 2014 he attended the commemoration of Aziz Guler who was killed fighting ISIS in Kobane. Police arrested people and another protest was arranged to protest against the arrests. He was arrested by the police at [a location] at Denizli at 9 pm, interrogated him in Izmir and accused him of being a member of YDG-H. They blindfolded him and drove him to Denizli and searched his business and home but didn’t find anything. He was held in detention for 20 hours, received death threats from the police and said he would be under police monitoring.
After his release he terminated his business and left the country – his friend having suggested he stay away by applying for a student visa in another country. He arrived in Australia [in] October 2014 but [days later] police from an anti-terror unit raided his family home and asked about him. They threatened his family members when they told them the applicant wasn’t there. He is now scared to return to Turkey because he would be seriously harmed by the authorities.
He also had outstanding military service where he would be at high risk of being harmed – he can’t postpone his military service.
AAT Hearing
The applicant claimed that if he was returned to Turkey he could be detained by the authorities because of his political views and his Kurdish ethnicity. He was also being looked for by the authorities because he had not presented himself for compulsory military service. He had no other claims.
Regarding his political views, he believed that the Kurds should be united under one roof but the nationalists didn’t like this and they attacked them because of this. Asked what had happened to him individually, he claimed that he had joined the protests at university in [year] – the police were violent to them. They were going to make a media announcement and the police scattered them to stop the announcement.
He was taken into a police car and beaten by the police and held for two hours before being released. They were protesting about the higher education institutions’ decisions. In [year] his dormitory was raided and he was targeted – his room was searched. One of his dormitory mates’ rooms was also raided as they were preparing for Nowruz even though this was legal.
He then spent the night at his friend’s house as he didn’t think the dormitory was safe. He was also from Denizli and he was attending BDP meetings from 2009 but the building was burnt down and he could have been there. In 2014 in Izmir he was at a celebration of a fighter’s life (the ultra-nationalists consider him a terrorist) and as he was taking a bus to leave he was detained by the police for 20 hours. He was accused of being in illegal parties.
In 2015 while he was in Australia his family’s home was raided and five friends arrested for no reason. This meant there would be a major problem if he returned. Asked what they were looking for, he claimed that he had a file with the police from before – it is in their database. Asked if the five friends had been charged, he claimed they were released. The police accused them of being in a terrorist group.
Asked if the house had been raided since then, he said he hadn’t heard about it. he claimed he was Kurdish when asked but didn’t speak Kurdish. He said this was because his father didn’t want them to speak Kurdish while they were growing up. Asked what he did when he left home and socialised with Kurdish students and whether he learnt Kurdish then, he claimed that they were all in the west of Turkey and there was no need to talk Kurdish.
It was put to him that a feature of nationalism is language and it would be likely he would want to express his Kurdishness. Asked if he had taken Kurdish lessons in Australia, he claimed that he hadn’t because he didn’t speak much English when he came to Australia and if he was with Turks he spoke Turkish. He joined Kurdish groups and had dinners with them. Asked if he had any evidence from any Kurdish groups that he attended any Kurdish groups, he said that he didn’t.
It was put to him that he had presented no evidence of any connection with any Kurdish groups pr associations, no photographic evidence and he spoke no Kurdish. He was asked if he had any evidence and he claimed that he did but hadn’t brought it with him. Asked if he had previously been asked to provide any evidence, he claimed that he had been asked previously by a tribunal to bring some. Asked why he didn’t bring it, he said that he didn’t know. It was put to him that he would be aware that the Tribunal may find he wasn’t Kurdish if he could offer no evidence of his Kurdishness or associating with any Kurdish group. He claimed that he could bring some.
He was told about s 424AA and it was put to him that during his DIBP interview he had been asked to provide evidence of his Kurdish identity because he hadn’t yet provided any as at September 2016. He was given two weeks to provide this and advised them he could provide it, and yet didn’t provide any. So he had previously been given an opportunity to do this by DIBP and by the AAT (folio 33) and yet had failed to do so and was now asking for another opportunity. The Tribunal stated that it had a fear his inability to provide such information was because it didn’t exist and he wasn’t Kurdish.
He claimed he wasn’t in an easy situation. He was asked to confine himself to his inability to provide evidence. He claimed that he hadn’t promised and he was told that the member had taken detailed notes of his interview and this was what he had said. He claimed that he understood and just thought his verbal claim would be enough. He claimed he was psychologically bad at the time and was asked if he had any proof of this. He was advised he would be given time post-hearing to provide the medical evidence.
He was asked if he had an Kurdish social media page and he claimed he didn’t. It was again put to him that he was trying to portray himself as a Kurdish nationalist but could provide no evidence to support this or that he was passionate about Kurdish nationalist causes. He said that he understood. Asked why, if he was not showing any allegiance to Kurdish nationalism in Australia, he would do so in Turkey. He claimed that doing Kurdish activities here wouldn’t necessarily provide he was Kurdish. It was put to him that in a free country where he didn’t choose to express those feelings, it raised questions as to whether he had ever done this before in Turkey.
He claimed that he was [age] when he came here from Turley and had been younger before and was thinking differently before. If he was on social media he would be charged by police and he would face this on return. He thought he may be returned and so didn’t want to raise his profile. Asked if he had a police check to come to come to Australia, he said he did. Asked why he was given a clearance by police, he said the system was different in Turkey. Only if he committed an offence would he be on the list.
This didn’t guarantee there wouldn’t be police raids as his name wa near the top of their list. Asked how many times his house had been raided he said it was twice, the first in 2012. He couldn’t remember if he had mentioned this. He said his workplace had been raided in 2012 and his home in 2015. Asked why he said his house was raided twice, he claimed it was once while he was here and once while there.
He was asked why, in all of his alleged years of Kurdish activism his house had only been raided once. He said that it depended on what was happening at the time. It was put to him that it was strange that his house hadn’t been raised, he came to Australia and shortly after his house was allegedly raided and he claimed protection. The Tribunal had to decide whether such a raid ever occurred.
Asked if he had any evidence of being in demonstrations or rallies he said he didn’t. Asked if he could provide any evidence of his Kurdishness or political activity or it relied entirely on his oral claim, he said he thought his word would be enough. People who hadn’t experienced police violence wouldn’t understand. His girlfriend had seen and heard all of this and he could get her as a witness. Asked if she could provide any photographic evidence, she said they had wiped it at the time.
Asked if it was anti-terrorism police who raided his home he claimed his parents had said this. It was put to him that the member had been in the army for a long time and before one did a raid on a house you normally surveilled it so you knew the target was at the location before you raided it. Phones would be geo-located, checks on whether the person was in the country would be made. It seemed strange that anti-terror police would fail to know he was out of the country and not at the house, and the Tribunal had concerns that the raid may never have occurred.
He said he understood but the system didn’t work his way in Turkey. If he was being looked for legally they would have checked his movement records. It was put to him that authorities would have geo-located his handset so they knew where he was before they moved. They appeared to be very incompetent anti-terror police. He claimed this made sense but he had no legally binding offence. They had always been able to find him. It was put to him that if they had the authority to raid his house they would have had the authority to track him. He again said he hadn’t done anything which meant they had to do this – police did normally track people this way in Turkey. They did this for real terrorist but he was only supporting leftist Kurds.
Regarding his military service claim, he stated that he had to attend the Turkish military and serve for six or 12 months. Asked who got to do each, he said the military decided according to their needs. Asked if it made a difference if one had a degree he said there was a chance to do six months or 12 months. It was noted he had provided evidence regarding his service, he was asked if he had told them he was overseas as country information indicated he could apply for deferrals while overseas. He claimed that he hasn’t contacted them since he’s been in Australia.
Asked why he hadn’t and hadn’t sought deferrals, he claimed that his deferral finished in 2016. It was out to him that this only applied to him being a student in Turkey. It was put to him that people overseas could apply for a deferral and send a letter to the recruitment office clarifying his situation and he was asked why he didn’t write a letter. He claimed that he could do this at the consulate and was again asked why he didn’t. He said that he didn’t meet the criteria.
Country information was put to him that he may be able to apply and he said he needed a working visa. Asked if there were opportunities to buy his way out of his service. He claimed there wasn’t and there was a law last month. It was put to him that there were opportunities in 2014 and 2018 and the current law was just another opportunity. He claimed that previously he hadn’t been old enough as one needed to be 29 or over. Asked if he had any evidence as the country information didn’t note an age criteria.
He claimed he could prove this was true as the last law he was still to do it for a month even if he paid a fee. He agreed there was a new law before parliament but he didn’t know what it was as it hadn’t been published. He was told it was in the media and he claimed it had been around for 10 years. He was again asked what the draft law was, and he said they were trying to drop it down to six months. It was put to him that it was strange that someone who feared military service wasn’t really aware of the draft law. He said this made sense.
He said before every election new military laws were proposed. He didn’t know unless it was in the papers – it was put to him that it was in the papers now. He said that he meant the law being passed. It was put to him that the draft law said one paid money and did 21 days which meant a small bit of training without any deployment.
He said that it was against his life views and he wouldn’t be safe amongst the Turkish military as Kurds were being discriminated against in the military. Asked what would happen if he weren’t actually Kurdish and doing his military service as a Turk. He claimed that his global view was that he didn’t want to be in Syria killing little children. Asked why he would be in Syria, he said that there was no guarantee and being on the border would be the same.

Asked if the rest of his family did their military service, he said his father and brother did it. Asked if there were any problems, he claimed his father did four years and his brother was in Istanbul and away from any major incidents.
Asked if he had replied to the 2016 letter from Turkish authorities, he said that he hadn’t. Asked if there had been any follow-up letter or legal action taken, he said that he would have to pay a fine. It was put to him that if this was a legitimate letter it was two and a half years ago and if there was any arrest warrant or fine issued then it would have followed after the November when he didn’t show up. He was asked if he had any evidence of legal or administrative action that the Turkish government had taken against him.
He said that he didn’t know if there had been. Once one gets the letter you have to go to the military branch (in his case the consulate in Sydney). If he had gone he could have paid and been given a receipt so he hadn’t – he disagreed with conscription. It was put to him that the address was still Denizli and he said two letters were sent, one to Denizli and one to Australia. He had thrown out the one he received in Australia and got his brother in Denizli to send the one posted there.
It was put to him that there would have been a follow-up letter if he hadn’t attended in November. He said the system didn’t work this way. A search in his name would be made and because he wasn’t in turkey they couldn’t do anything about this.
It was put to him that conscription was universal and was asked why it was a problem for him. He claimed that it was against his view of life. In the 1990s there was always news about fighting and dead soldiers and he felt awkward looking at it. He was asked if he had a problem paying in lieu of service, he claimed he didn’t. They used to be wealthy in both countries but that was no longer the case. He had been earning for his own company but now he worked in a [shop] in Sydney since July and [did different work] for a year and worked in a [business] before that.
Under s 424AA it was put to him that he had told DIBP that he had done very well in Turkey and had made USD [large amount] by the time he was [age]. He said [a smaller amount], not [large amount]. It was put to him that he had said [large amount] but regardless, when he applied for a student visa he told the embassy that he had the equivalent of AUD [amount] which was different to [the two amounts he quoted] and this inconsistency could go to his credibility. He claimed that his turnover was USD [smaller amount] and he got 15 % profit from it. he had a car and property and was building a house on it. He claimed he was trying to explain that he could handle a company with a turnover of [smaller amount] dollars.
He claimed that he was telling the truth but was having trouble expressing himself.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] October 2014 and applied for a protection visa on 23 November 2014. The applicant is a single male who claimed that he would be detained because of his political views, severely harmed because of his ethnicity as a Kurd and he would be forced to do conscription. To the extent that it is relevant I have taken into account the June 2014 DFAT Thematic Report – Kurds in Turkey and the October 2018 DFAT Report - Turkey.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the fact that he claimed at one stage that he was psychologically ‘bad’ at the time of his DIBP interview but lend the claim little weight. He provided no evidence prior to, or after the hearing that he was seeing any medical practitioner, let alone a specialist for mental health issues.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.
Kurdishness
I do not accept that the applicant is ethnically Kurdish and that he has fabricated this identity in order to strengthen his refugee claim. It can be difficult to determine whether someone is from a particular ethnicity, however given the fact that the applicant claimed to be a politically active Kurdish nationalist and the lack of any evidence to support such a claim, I am satisfied that he is not Kurdish at all, let alone a politically active Kurd.
He does not speak Kurdish which is strange for a Kurdish nationalist. Even if I were to accept that it wasn’t spoken at home, his inability to undertake any language training when at university with other Kurdish friends, or since he has been in Australia is not indicative of someone with a strong interest in his alleged Kurdish cultural heritage, of which language plays a strong role.
There is no evidence of any social media activity in favour of Kurdish interests, any photographic evidence of contact with any Kurdish groups in Australia or in Turkey, of attendance at protests in Turkey, or of any contact whatsoever with Kurdish political or cultural groups in Australia. It is reasonable to believe that if he were a Kurdish nationalist he would have been able to provide evidence to support some, if not all of these activities.
It is telling that nobody from any Kurdish organisation in Australia supported him in person or by letter. He had advised the DIBP interviewer that he could provide this and was given two weeks to do so but never did. The Tribunal wrote to the applicant prior to the hearing to provide such evidence and he again failed to provide any.
I don’t accept that his girlfriend took some photos in Turkey but wiped them. No mention was ever made in his claim of this event. Nor do I accept that he failed to have any entries on social media because he feared he would be sent back. He could have done Kurdish cultural entries, or political entries under another name for example if he was as committed to his Kurdish ethnicity as he claims.
I did not take any evidence from his girlfriend. She was never mentioned previously, he had not indicated on his acceptance form that he intended to call her as a witness, and in any case there is no way that the Tribunal would have been able to confirm that the person being spoken to was actually his girlfriend at any stage. I am satisfied that my unwillingness to call someone who had never previously featured in his claim and whose identity and background the Tribunal could not verify, has not impinged on the applicant’s access to natural justice.
He was given every opportunity by DIBP and the AAT to provide evidence relating to his alleged Kurdish identity and failed to do. The reason for this is because he isn’t Kurdish, and it is reasonable to conclude that the absence of support from the Australian Kurdish community is because they would know this claim to be false if asked to verify it.
Because he is not Kurdish it follows that he was never a pro-Kurdish political activist, never attended DTP or BDP meetings, Nowruz celebrations or any other pro-Kurdish gathering or protest. Nor was he ever threatened by anyone for being Kurdish, he was never detained nor beaten by police for his Kurdish ethnicity. His house was also never raided by the police (his claim was also implausible in the way in which the raid appeared to have been conducted and fortuitous in timing given it occurred just after he left Turkey).
I have taken into account some media clipping he has provided post-hearing but lend them little weight. They relate to Kurdish political activities in Turkey and I have already found that the applicant has fraudulently tried to pass himself off as a Kurd when he isn’t.
As a consequence I do not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future because he is, or would be perceived to be Kurdish.
Conscription
I am not satisfied that the applicant has a residual military service obligation. This relies largely on his oral testimony which I have found to lack credibility. Opportunities to buy oneself out from their military service were available in 2011, 2014 and 2018. In the case of the 2014 offer 200,000 took up the offer[1] and in 2018 the offer was taken up by more than 630,000 people.[2] This would indicate that the schemes were very well known.
[1] accessed 22 July 2019
[2] accessed 22 July 2019
The applicant claimed that he couldn’t avail himself of this scheme because one needed to be 29 or over. The Tribunal was unable to find information that supported this claim and the applicant never provided any. I am satisfied that he would have availed himself of this opportunity to buy his way out of his service as part of the 2014 or 2018 schemes.
I have taken into account the evidence he presented that supported his claim that he had not fulfilled his military service obligations but lend them little weight. Two refer to deferrals that expire [in] 2013 (folio 54) and [in] 2014 (folio 59), yet another dated [in] October labels him a deserter because he should have been deployed in the November 2016 conscription period (folio 57).
To begin with it is strange that his previous deferrals ended [in] December but a 2016 call-up was for November 2016. It is even stranger that he is labelled a deserter in a letter dated a month before he is due to be called-up. And there is no correspondence after this date such as administrative or legal follow-ups. He claimed that fines were mounting up against him, yet he provided no correspondence that this was the case.
I also note the original letter was not provided, only a photocopy. He claimed that he had thrown out an original sent to him. It makes no sense why he would throw out a letter stating he is a deserter given his fear of punishment for missing military service was one of the claims he made in his original protection visa application.
As a consequence I do not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future because he has, or would be considered to have, any residual military service obligation.
Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is Kurdish, was or ever would be considered Kurdish, has or ever would seek to promote Kurdish political activism. I also do not accept that the applicant was ever politically active in Kurdish causes in Turkey, that he ever came to the attention of Turkish authorities or was ever detained, interrogated or beaten by them.
Nor do I accept that the applicant is required to do military service on return to Turkey. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
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 5937

26 July 2019

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