1617243 (Refugee)

1617243 (Refugee) [2017] AATA 221 (3 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617243
COUNTRY OF REFERENCE:                  Afghanistan
MEMBER:Carolyn Wilson
DATE:3 February 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 February 2017 at 3:12pm
CATCHWORDS
Refugee – Protection visa – Afghanistan – Religion – Christianity – Credibility issues – Delay in protection application – Inconsistency in claims – Identified as Muslim while in detention – Conduct engaged to strengthen claims
LEGISLATION
Migration Act 1958, ss
36, 5H, 5J, 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 [in] October 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 Afghanistan applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that they did not accept the basis of his claim, that is, they did not accept he was a genuine Christian convert.
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
The applicant is a [age] year old man from Afghanistan. He came to Australia in July 2011 as the holder of a provisional Partner visa. His sponsor notified the Department in November 2011 that the relationship had ceased. The applicant pursued his claim for a permanent Partner visa, on the basis he had been the victim of family violence. However this was not accepted by the Department or the Tribunal (differently constituted) on review. In November 2014 the applicant was charged with [criminal] offences. His Bridging visa was cancelled and he was taken into Immigration detention. In April 2015 the applicant was convicted of [number] charges of [crime] and one charge of [crime]. He remains in detention.
Protection visa application
The applicant applied for the Protection visa [in] May 2016 He claimed to fear returning to Afghanistan for the following reasons:
·He left Afghanistan to be with his wife in Australia. He also left Afghanistan because he feared persecution from radical Muslims who suspected he had rejected Islam. He claims to have been [assaulted] by a group of men in Kabul in May 2011 for this reason.
·In Australia he has converted to Christianity. He will be charged with apostasy, and face serious punishment, if he returns to Afghanistan.
·He cannot seek protection or relocate in Afghanistan, as the authorities condone persecution of apostates and there are radical Muslims throughout the country.
The delegate did not accept the applicant had converted to Christianity. They relied on information obtained from the detention centre, which indicated he still identified as a Muslim. This included his requests for Halal meals and for a prayer mat and prayer stone, and his listing of ‘Muslim’ as his religion on paperwork. The delegate also relied on information that indicated the applicant had only commenced attending Christian classes [number] days prior to lodging the Protection visa application. The delegate also relied on the lateness of the claim, and the inconsistency with previous claims made to the Department about his reason for not wanting to return to Afghanistan. That is, in an interview with Department officers [in] April 2015 the applicant is recorded as saying he could not return to Afghanistan because ‘I used to work in high level places [Western] bases, translated, worked with [Western] special force’. Although the applicant claimed to have attended churches in [Australia], he could not name the churches or any priest/minister who worked there. He could only say they were near train stations. The delegate gave little weight to the applicant’s baptism [in] August 2016 or the letters of support from Christian ministers who had met him at the detention centre. The delegate gave no weight to medical reports provided to support his claim to have been [assaulted] in May 2011, as they found the documents were not genuine.
Application for review
On review the applicant maintained the claims that he fears returning to Afghanistan because of his conversion to Christianity. He provided some written submissions and evidence on apostasy in Afghanistan and provided a letter of support from [Reverend A] of [a] Church.
The Tribunal has had regard to the following information from the DFAT Country Information Report: Afghanistan (18 September 2015) on freedom of religion and the treatment of apostates and non-Muslims in Afghanistan:
3.20 While the Constitution protects freedom of expression and the Penal Code 1976 makes no specific mention of insults or profanity against deities, religions, or religious symbols or books, courts tend to rely on Islamic law to address these issues. In this context, blasphemy can be considered a capital crime. Similarly, while there are no laws explicitly prohibiting religious conversion, adults who convert from Islam may face the death sentence. Public displays of non-Muslim faith are rare, and there are very few trials for blasphemy or apostasy. According to the US State Department, two reported prosecutions for blasphemy occurred in 2013, with at least one defendant convicted and sentenced to 10 years in prison. In October 2014, a newspaper editor/owner was reportedly arrested on charges of blasphemy following publication of an editorial critical of Islam. In 2009 a journalist was convicted of blasphemy and sentenced to death for an article asking why Islam does not give women equal rights. He was subsequently released after being pardoned by then-President Hamid Karzai. DFAT is not aware of the state carrying out the death penalty for crimes of blasphemy or apostasy since the Constitution was ratified in 2004….
3.22 There are no religious facilities in Afghanistan that are available to Afghan Christians. There are some publicly accessible religious facilities for Hindus and Sikhs, including in Kabul, but many non-Muslims do not openly practice their religion because of the risk of discrimination or violence. According to the US State Department, members of the Hindu and Sikh communities have complained about restrictions on their ability to cremate the remains of the deceased in accordance with their customs—this reportedly involves mainly societal restrictions such as harassment, but also indirect official restrictions around land allocation and use. The government provides free electricity to mosques, but not for other religions’ places of worship. DFAT is not aware of any person being detained by the government for practising a minority faith. However, prominent public figures, including members of parliament and provincial governors, are known to call for the punishment of converts from Islam.
3.23 Although there is some official discrimination on the basis of religion, DFAT assesses that the main impediment to religious freedom in Afghanistan in practice is societal discrimination against non-Muslim religious minorities. Christians, Sikhs and Hindus may suffer discrimination by members of the Muslim majority in the form of unequal access to government or private-sector jobs and harassment in their schools. Violence against non-Muslims is rare, although this is primarily due to the small numbers of non-Muslim religious practitioners in Afghanistan and the low profile these practitioners maintain to avoid discrimination and violence. DFAT has no current evidence of violence specifically targeted at non-Muslims in Afghanistan.
The Tribunal acknowledges the potential for serious consequences referred to above for Afghan Muslims who convert to another religion. However, for the reasons given below, the Tribunal does not accept the applicant is a genuine Christian convert.
In a letter of support dated [in] October 2016, [Reverend A] states she sees the applicant attending the weekly Christian group she runs in the detention centre. He plays [an instrument] at the group. The applicant asked to be baptised, and was, but ‘The [Church] does not accept just anyone for baptism…The [town] [Church] Council approved [the applicant’s] baptism’. She has no doubt the applicant’s faith if heartfelt and sincere, and that because he has been baptised, no one can claim he is not a Christian.
The Tribunal called [Reverend A] during the hearing to take oral evidence from her. She confirmed she knows the applicant from his attendance at the Christian group she runs in the detention centre. When asked what she knows about the applicant personally, the witness knew nothing of his past. Her view, based on her observations of him at the meetings, was that he would be a good citizen for Australia. Of concern for the Tribunal was that she had no knowledge he had been charged and convicted of criminal offences in Australia. As put to the applicant at hearing, the Tribunal gives limited weight to [Reverend A]’s opinion of the applicant’s sincerity in converting, because it finds she does not know the applicant well. In response to this, the applicant said that at the meetings they only study the bible and the rituals of the church. They don’t discuss ‘deep matters of life’.
The Tribunal finds [Reverend A]’s opinion of the applicant is based on her knowledge of the applicant’s regular attendance at the Christian group and his apparent participation in the group. However, it is not based on personal counselling with the applicant about his reasons for wanting to be Christian, and what it means to live as a Christian. The Tribunal acknowledges ‘confession’ is not a part of the [Church] practice, as it is in the Catholic Church. However, the Tribunal considers that the applicant’s recent past, particularly his convictions and sentencing, would have been part of a discussion if he and [Reverend A] had ever talked about the applicant’s personal beliefs and how he is living or wants to live a Christian life The Tribunal finds [Reverend A] knows the applicant merely as one of the detainees who regularly attends her group, and does not know him well enough to give an informed opinion on his motivations and sincerity in claiming to be Christian. Tribunal gives little weight to her opinion that the applicant is a genuine Christian. The Tribunal gives weight to the letter and oral evidence only as evidence the applicant is attending Christian groups in detention.
The applicant has also provided letters of support from [name] of [a] Ministry Team, and [names] of [a] Church. Both letters state they know the applicant from his attendance at Christian groups in the detention centre. [Name] expresses the opinion that the applicant is ‘a good man’ who is ‘actively Christian’. There is no mention in any of the letters of the applicant’s criminal convictions. The Tribunal gives these letters weight only as evidence the applicant attended Christian groups in 2016, and gives little weight to the opinions of the authors that the applicant is genuinely Christian.
The Tribunal put adverse information to the applicant under s.424A. This adverse information was also raised with him at the hearing. The adverse information is: the applicant gave a different reason in April 2015 as to why he could not return to Afghanistan (ie the claim that he had worked for [Westerners]); the records held by the detention centre indicate the applicant has requested meals and supplies consistent with him being a practising Muslim; and he has given ‘Shia Muslim’ as his religion to detention staff.
In response, the applicant says he did not disclose his real reasons for not wanting to return to Afghanistan because to do so would have put his life at risk. He says he did not think he could trust the Australian authorities not to inform Afghan authorities, until he did his own research about privacy and took note of what is printed on Forms 1247i and 1442i. The Tribunal is not persuaded by this submission. The applicant has been dealing with the Department, the then Migration Review Tribunal, and Australian courts (for his criminal matter and judicial review application) since his arrival in 2011. The Tribunal does not accept it was only in 2016 that the applicant realised information he provided to the Australian authorities would not be disclosed to Afghan authorities. Further, this explanation does not address the issue of why he said he had worked for [Westerners], when this does not appear to be true. Also, it appears he did not fear false information about his alleged past work in ‘high level places’ for [Westerners] being passed on to the Afghan authorities.
In response to the adverse information about his identifying as Muslim and requesting meals and items associated with this, he says he did not request a Halal diet for religious reasons. He was asked, on arrival at [the detention centre] in October 2015 and in front of other detainees, what his religion was. He felt it would be unwise to say ‘Christian’ in front of Muslim detainees so he said ‘Muslim’. He asked for the prayer mat and stone so that he would appear to be Muslim. These items don’t have any special significance to him. Other Muslims in detention have noticed him attending Christian groups and have said derogatory things to him and don’t socialise with him. The Tribunal accepts it is plausible that a Muslim convert may fear harm from other detainees, but given other concerns about the credibility of his claims, gives this explanation little weight.
The Tribunal has considered the applicant’s claim that he has long been interested in Christianity, and began attending churches in [Australia] almost as soon as he came here. The Tribunal however rejects this claim, as the applicant is unable to name any churches he attended, or give details of the denomination of Christianity of those churches or names of any priests or ministers involved in those churches. He told the Tribunal the churches he has been to were located near to train stations that he frequented, and that he simply liked to go in the churches to pray. Given his lack of knowledge of any details associated with the churches, the Tribunal finds that if he did go into any churches, it was merely as a quiet place to sit, rather than evidence of any real engagement with Christianity.
The Tribunal has considered the applicant’s claim that he was [assaulted] by a group of men in the months prior to his leaving Afghanistan. He claims this was in retribution for him openly asking a question about Islam that was interpreted as him rejecting Islam. To support this claim he has provided 2 medical reports. The reports are in English, one is dated [in] July 2016 and the other [in] May 2011. The Tribunal gives little weight to these letters, given they are in English, and one is written 5 years after the date without attaching any contemporaneous evidence. In any event, were the applicant fearful of returning to Afghanistan because of a past assault, the applicant had from 2011 to 2016 to seek protection on this basis. The Tribunal finds the delay is significant and is inconsistent with a person fearing being returned to their home country when their initial reason for being in Australia (spousal relationship) was no longer current. The applicant should have been aware from 2011 that his status in Australia was at risk due to the relationship breakdown, and that he would no longer be entitled to the permanent Partner visa. He pursued a seemingly futile Partner visa application on merits and judicial review, rather than seeking protection. Then in 2015 he apparently fabricated a claim that he could not return to Afghanistan because of high level work he had done for [Westerners], when there is no evidence of any such past employment. Given the delay in raising the claim to fear extreme Muslims because of his questioning of Islam and his apparent rejection of Islam, the Tribunal finds these claims, including the claimed assault in 2015, are a recent fabrication. The Tribunal does not accept the applicant was targeted in the past for this reason. The Tribunal does not accept the applicant has rejected Islam, given his behaviour until recently in detention in identifying himself as Muslim. The Tribunal finds there is not a real chance he will face persecution for being perceived as an apostate or rejecting Islam, should he return to Afghanistan in the reasonably foreseeable future.

The Tribunal notes the applicant was in the Australian community from 2011 to 2014. Apart from his alleged visiting of churches, he did nothing to engage with Christianity. In the community he had more freedom to explore this religion that he claimed to be attracted to since the incident in May 2011. Yet he appears to have done nothing to reach out to Christian groups and learn about Christianity until he was detained in the [Detention] Centre. The Tribunal gives this lack of past Christian related activity weight in reaching the conclusion that his engagement with Christianity began only in preparation for applying for a Protection visa.
The Tribunal has considered the applicability of s.5J(6) to the applicant’s Christian activities and baptism whilst in detention. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee. Taking into account all the information before it, the Tribunal is not satisfied that the applicant has attended Christian classes in detention, been baptised, and professed to be Christian, otherwise than for the purpose of strengthening his claim to fear persecution as a Christian convert. The Tribunal makes this finding based on the lack of credible evidence of Christian activity until 2016, the failure to raise any claim of fear of harm for apostasy prior to May 2016, the credibility of his claimed conversion when he was also identifying as a Muslim, and the timing of his interest in Christianity after his application for the Partner visa was dismissed. Therefore s.5J(5) applies and this conduct must be disregarded.
For the reasons given above, the Tribunal has disregarded the applicant’s conduct in Australia in engaging in Christian activities and claiming to have converted to Christianity. The Tribunal does not accept the applicant was targeted prior to leaving Afghanistan for rejecting, or being perceived as rejecting, Islam. The Tribunal finds the applicant does not have a well-founded fear of persecution and therefore does not meet the definition of refugee as defined in s.5H. He does not meet the requirements of s.36(2)(a).
Complementary protection
The Tribunal has considered whether there are substantial grounds for believing the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan.
The Tribunal has considered whether the applicant faces a real risk of significant harm for having been baptised and attended Christian groups in Australia. The Tribunal has had regard to country information from DFAT, referred to above on the treatment of apostates in Afghanistan. For the reasons given above, the Tribunal does not accept the applicant has genuinely converted to Christianity. It follows therefore the Tribunal does not accept he will seek to practice Christianity in Afghanistan. For the reasons given above, the Tribunal also does not accept the claim the applicant has rejected Islam, and therefore does not accept he faces a real risk of significant harm for this reason. The Tribunal considers the risk of the authorities in Afghanistan knowing of his baptism and Christian activities in Australia is remote. The Tribunal finds he will not identify or act as a Christian in Afghanistan and therefore does not face a real risk of significant harm for this reason.
The applicant mentioned at the hearing, although he did not formulate this as a claim, that Afghanistan is not a safe country. Under s.36(2B)(c) of the Act there is taken not to be a real risk that a person will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. Having rejected his claims to fear harm for his conversion to Christianity or perceived rejection of Islam, the Tribunal does not accept there is anything in the applicant’s profile that means he has a real risk of being targeted personally for significant harm. The Tribunal finds the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally.
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 Afghanistan, 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.
…
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.
…

[2017] AATA 221

3 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction