1617498 (Refugee)

1617498 (Refugee) [2020] AATA 5134 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617498
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Hugh Sanderson
DATE:27 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 October 2020 at 8:40am

CATCHWORDS
REFUGEE – protection visa – Nepal – previous protection visa application under a different identity refused – political opinion – refusal to join the Maoists – religion – convert to Christianity – particular social group – Nepalese citizen who has returned to Nepal after an extended period overseas – a person whose family owes money to money lenders – complementary protection – economic deprivation – socio-economic impact of the earthquake in 2015 – effect of the COVID-19 pandemic – right to enter and live in India – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 and Border Protection on 4 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 Nepal, applied for the visa on 14 March 2016. The delegate refused to grant the visa on the basis that the applicant had a right to enter and live in India where he would not have a well-founded fear of persecution or there would be a real risk that he would suffer significant harm.
Background
The applicant was born in Nepal and is currently [age] years old. He is married to [Mr A] and they have two children, [Child B] and [Child C] who are aged [age] and [age] years old. The applicant’s wife and children currently reside in Nepal.
The applicant first entered Australia [in] July 2005 holding a [Tourist visa] using the name ‘[Alias 1]’. He then applied for a Protection visa on the grounds of “political opinion” because he was against the Maoists in the area where he was living and he refused to join them. That application was refused by the Department and the Tribunal (differently constituted) affirmed that decision on review. An appeal against that decision to the Federal Magistrates Court was dismissed. The applicant departed Australia [in] May 2008.
The applicant was then granted a [Student visa] as a member of the family unit of his wife and returned to Australia [in] December 2008 using his current name. He did not disclose in that application that he had previously been in Australia using a different name. In that application, it was stated that the applicant and his wife did not have any outstanding debts to the Australian government and he had not been excluded from or asked to leave any country. This information was incorrect.
The applicant and his wife applied for a further Student visa on 17 September 2013. When the Department became aware the applicant had provided false and misleading information and bogus documents in support of the original application the application for the further Student visa was refused on the basis that the applicant did not meet public interest criteria 4020. A review of that decision before the Tribunal (differently constituted) was not successful and the decision was affirmed on 21 August 2014. An appeal to the Federal Circuit Court was discontinued with an order for costs being made.
Since first arriving in Australia, the applicant has travelled out of Australia with his stated reason as follows:
·[From] May 2008 [to] December 2008 – his visa had expired;
·[From] June 2011 [to] December 2012 – financial hardship; and
·[From] November 2015 [to] December 2015 – to visit his children.
The applicant’s wife departed Australia [in] March 2016 and has not returned since then. His children departed Australia in 2011 and have not returned since then. The applicant has stated that his wife and children are currently living in Kathmandu in Nepal.
In his application, the applicant claimed that the harm he faces in Nepal is socio-economic. He noted that he had previously relocated to Kathmandu because of the Maoist threat and although that threats still remains he relied upon the socio-economic impact of the earthquake in 2015, stating that his family had been badly affected by the earthquake with his brother suffering from depression and his father’s business losing customers and suppliers.
In submissions made by his agent, the previous claims were repeated but it was stated that the applicant did not expect a duplicated type of assessment with respect to his previous protection visa procedures. It was argued that the applicant contemplates he would have difficulty in obtaining employment in Nepal and remains concerned and scared regarding his identification by Maoists. It was argued that the economic deprivation scenario should be recognised as degrading treatment of the applicant.
The applicant provided a statement from his father saying that after the earthquake in April 2015 it was a terrifying experience which adversely affected his business because they had difficulty accessing supplies from India, his children and the children of the applicant were psychologically affected by the aftershock and one of his sons was suffering from depression.
A statement was provided from the applicant’s father-in-law stating that he was a retired [Occupation 1]. He said that [Child B] was suffering from tonsillitis which is aggravated by the pollution in Kathmandu. He said the earthquake in 2015 caused lots of problems for everybody in Nepal.
The applicant was interviewed by an officer from the Department. The applicant made the following claims:
·The applicant had converted to Christianity since coming to Australia;
·The greatest threat to the applicant now is that after the earthquake the economic situation in Nepal is difficult;
·The applicant’s father is still running his business in Kathmandu;
·Although it is quiet now, he still fears Maoists and his father has not gone back to his home village;
·Although it is not serious harm, the earthquake has made it difficult for him and his family as his father’s business had problems because people could not repay their debts and he had difficulty obtaining supplies from India;
·The applicant’s brother was suffering from depression because of the earthquake;
·The applicant has a responsibility to his family and if he goes back to Nepal there would be no business, occupation or place to live;
·With the Maoists, it is not like the situation that it was in 2005, but he still fears them; and
·When the delegate put to the applicant that he would be able to relocate to India under the Treaty of Friendship the applicant said that he did not want to go to India because no person from his family or his wife’s family lives in India.
The delegate who considered the application did not assess whether the applicant faced any significant harm or had a well-founded fear of persecution if he returned to Nepal. The delegate found that the applicant had a right to enter and reside in India and that if he did so he would not have a well-founded fear of persecution in India or that there would be a real risk that he would suffer significant harm there. Accordingly, the delegate found that the applicant had effective protection in a third country and therefore did not meet the criteria for the grant of the visa.
Information to the Tribunal
The applicant provided a further statement to the Tribunal dated 24 March 2020 where he made the following claims:
·His family had borrowed heavily (about AU$60,000) to operate a shop and after the earthquake in 2015 they had difficulties repaying it;
·After the earthquake they had to change the location of the shop to a new smaller shop;
·The applicant’s family has been unable to repay the loans taken out for the business;
·Although the Maoist threat that was mentioned previously has not strengthened, the Maoists are now seen as the new mafia and extort and intimidate people which has happened to his family;
·The situation faced by the family led to his brother suffering from serious depression; and
·The applicant is fearful of Maoists extorting money from him and the police would do nothing.
The applicant provided the statements that had been previously provided by his father, dated 26 March 2016 and from his father-in-law dated 24 March 2016. A profile was provided of the applicant. Various reports were provided as to the political situation in Nepal and also the effect of the COVID-19 pandemic on Nepal and Nepalese citizens.
The applicant appeared before the Tribunal on 15 October 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented by his migration agent who attended the hearing by telephone.
The Tribunal had put the applicant on notice of a certificate on the Department’s file pursuant to s.438 of the Act. At the start of the hearing, the Tribunal noted that the information related to how the Department became aware that the applicant had previously entered Australia under a different name. As the applicant had acknowledged that he originally entered Australia using the name ‘[Alias 1]’ before returning to Australia using his current passport that this information was not relevant to the current application.
The Tribunal noted the applicant had previously been refused a Protection visa on the grounds that he feared persecution in Nepal. It was noted that it had been stated that he was seeking a decision on the grounds of complementary protection claiming that he would suffer significant harm in Nepal. The Tribunal noted the requirements for the grant of a Protection visa on the basis of suffering significant harm. The Tribunal noted that under the legislation there has taken not to be a real risk that a non-citizen will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The applicant said that he was currently living with his sister-in-law and her family. He said that he had been working in a restaurant until July 2019 but had only been doing casual cash in hand work since then. He said that he is supported by his sister-in-law. He said that his wife and children are currently living with his father-in-law in Kathmandu. He said that after initially staying with his parents for six months when she returned to Kathmandu she had been staying with her parents since then. He said she was not working and was supported by her parents. He said that her father was a [Occupation 1] but is now retired and receives a pension. He said that he owns the house they live in and his wife’s parents are quite affluent.
The applicant said that his parents are still running their shop in Kathmandu. He said that it is a small shop as after the earthquake their wholesale shop had to close. He said that it is a grocery store selling [product] and other goods. He said that his brother’s wife and his parents work in the shop. He said that his brother was suffering from depression and does not do much for the shop now. He said that he believed his brother was still taking some medication but he did not know what.
The applicant said that he spoke Nepalese, English and Hindi. He confirmed that he is now following the Christian faith. He said that his family have no problems with him being a Christian as two uncles on his mother’s side were Christians. He said that he had never been a member of any political party.
The applicant said that the problem with Nepal was that it was a very poor country and the government was not strong enough to fight the COVID-19 pandemic. He said that there was a problem with Maoists, but he had never been interested in politics and did not know much about it.
The applicant said that he had travelled to India in 2004 or 2005 to apply for the visa to come to Australia. He said that he was only there for five or six days and had no problems there. He said that he was not sure how he could live in India because he is a poor Nepalese and he would be humiliated in India. He said that there were no jobs there and there was the problem with COVID-19.
The Tribunal noted that there was no evidence that the applicant had been threatened by anybody and that the risks he was referring to in Nepal, such as a poor economy, lack of jobs, the COVID-19 pandemic and other aspects of his claim were faced by the population of Nepal generally and not by the applicant personally. The applicant said that the loan his family took out was with local lenders and they have made threats against his family. He said the Maoists were also a threat. The Tribunal noted that the last statement he had provided from his father was more than four years old and there was no indication of any threat. The applicant said that it was difficult to get a translation. The applicant said that he was worried about his family. He said the debt was about AU$120,000.
The applicant’s agent said that as India was one of the most affected areas of the COVID-19 pandemic that it would not be safe for the applicant to travel there.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of Nepal. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that Nepal is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Nepal is the receiving country.
The applicant has previously applied for a Protection visa on the grounds that he had a well-founded fear of persecution in Nepal. That application was refused by the Department and that decision was affirmed by the Tribunal on review on 18 January 2006.
The applicant has not put forward any further claims that he has a well-founded fear of persecution. In submissions from his agent, he claimed that he was not repeating the claims that he had previously made when applying for a Protection visa and had been refused by the Department with that decision affirmed by the Tribunal on review.
The Tribunal has considered all the claims that the applicant has made of having a well-founded fear of persecution for reasons of political opinion, from actions of the Maoists or any other political group and also as a convert to Christianity. The Tribunal has also considered whether the applicant would face persecution as a Nepalese citizen who has returned to Nepal after an extended period overseas or as a person whose family owes money to money lenders.
The applicant has claimed that he is a Christian. He has made no claim that he has a well-founded fear of persecution in Nepal as a Christian or that there is a real risk that he will suffer significant harm in Nepal as a convert to Christianity. He said that his family were aware of the fact that he had converted to Christianity and is living with his sister-in-law who is aware of his activities with regard to his Christian beliefs. He said that two of his uncles on his mother’s side were Christians and provided no information that they suffered any risk of any harm from his family or any other person or group in Nepal. There is nothing to indicate that the applicant would try to convert anyone in Nepal to Christianity or his profile as a Christian would attract the interest or concern of any group or individual.
The most recent Department of Foreign Affairs and Trade (DFAT) report notes that the Nepalese constitution provides that Nepal is a secular state and guarantees freedom of religion. People who convert to Christianity publicly are able to do so safely, although they may experience low-level societal or family discrimination which may vary according to their personal and family circumstances.[1] The most recent report from DFAT as to common claims from Nepal dated 29 September 2020 repeats the assessment that Hindus who convert to Christianity are able to do so publicly and safely.
[1] DFAT Country Information Report: Nepal. Department of Foreign Affairs and Trade, 1 March 2019 at 3.21 and 3.25.

The Tribunal is not satisfied that the applicant would face any persecution or has a well-founded fear of persecution or that there is a real risk he would suffer significant harm as a result of his conversion to Christianity. His family has accepted his conversion and there is nothing to indicate that any other person or group would be a real risk to him of suffering any harm or that he would be persecuted for being a convert to Christianity.
The applicant has emphasised the difficulties that are facing the Nepalese people due to a poor economy and being one of the poorest countries in the world. This has been exacerbated by the earthquake in 2015 and the re-establishment of a working democracy after the lengthy Maoist uprising that led to the end of the Nepalese monarchy. This assessment is reflected in the most recent DFAT report.[2] The Tribunal accepts that the COVID-19 pandemic has caused further difficulties for the population of Nepal which has exacerbated the economic hardships facing that country.
[2] DFAT Country Information Report: Nepal. Department of Foreign Affairs and Trade, 1 March 2019 at 2.13 – 2.17.
The circumstances and the risks to individuals as a result of economic conditions in Nepal, however, are risks that are faced by the population of the country in general and is not faced by the applicant personally. Concerns about his capacity to find employment and economic security is a concern that is faced by everybody in Nepal. Similarly, a concern about contracting COVID-19 is faced by the whole of the population of Nepal and is not faced by the applicant personally. The actions by the government of Nepal both in relation to the management of Nepalese economy and provision of health services are also faced by the population of the country generally and not by the applicant personally.
Similar claims have been made by the applicant regarding issues faced by him or his family of a general nature. This includes the fact that his daughter suffers from tonsillitis and is adversely affected by the pollution in Kathmandu and the fact that the country has suffered a number of significant earthquakes and that his family is living in constant fear of further earthquakes. The Tribunal does not accept that these claims indicate that there is a real risk that the applicant will suffer significant harm. The claims made are, at best, that there is a risk faced by the population of the country generally and not by the applicant personally.
The applicant claims that he has a fear of Maoists. He originally claimed that he was forced to leave his home village as he refused to join Maoists in 2002. The applicant stated that he had never been a member of a political party and had no interest in that sort of thing. There is nothing to indicate that the applicant has a profile that would be of interest to any Maoists or any other political organisation. He appears to have been completely apolitical when in Nepal and has not participated in any political actions either in Australia or in Nepal. There is no information before the Tribunal which would indicate the applicant has a profile which would be of any interest to any political organisation.
The security situation in Nepal was described by DFAT as having dramatically improved since the end of the conflict in 2006.[3] With specific reference to the Maoists, DFAT assessed that “political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they faced no greater threat of violence than other participants.”[4]
[3] DFAT Country Information Report: Nepal. Department of Foreign Affairs and Trade, 1 March 2019 at 2.41.
[4] DFAT Country Information Report: Nepal. Department of Foreign Affairs and Trade, 1 March 2019 at 3.45.
As indicated above, the applicant stated that he did not have any real interest in politics and his alleged problem with the Maoists in 2004 was that he refused to join them in the village that he was then living. There is nothing to indicate that at any time the applicant has been involved in any protests or in any opposition organisation to the Maoists. There is nothing to indicate that at this time the applicant would be of any concern or interest to any Maoists or any other person from any political organisation in Nepal. The applicant, since first arriving in Australia in 2005, has returned to Nepal on three separate occasions. This includes one period commencing in June 2011 where he remained living there for over a year. There is nothing to indicate that over the time that the applicant has remained living in Nepal after 2005 that he face any difficulties from Maoists or any other political organisation due to any political opinions he may hold or his failure to support any political organisation.
The applicant claimed that due to the threats from the Maoists in 2004 he relocated to Kathmandu. He, and his family, have settled in Kathmandu since then. There is no credible information to indicate that the applicant or any member of his family has had any difficulty with any Maoists or any other political organisation while they have been living there. The applicant’s family have been able to establish a shop in Kathmandu and, until at least until the earthquake in 2015, the business seems to have been successful and did not attract the attention of Maoists or any other political organisation for any reason.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that there is a real risk that the applicant would suffer significant harm in Nepal from Maoists or any other political organisation. Although the applicant complains about the political situation in Nepal and describes the Maoists as a type of mafia, the nature of the threat the applicant claims he faces from a Maoist government is one faced by the population of the country generally and is not faced by the applicant personally.
The applicant claimed that his family owned a wholesale business and had borrowed significant sums of money for the business. He claimed that after the earthquake in 2015 the business had to close and his parents and brother opened a smaller shop selling groceries but still have an outstanding debt. In his statement dated 24 March 2020 he claimed that the debt was AU$60,000. At the hearing, he claimed the outstanding debt now was AU$120,000. He claimed that there were threats being made against his parents and brother in relation to that debt.
There is little information to support this claim. The applicant provided a statement from his father dated 26 March 2016. In that statement, it is claimed that the business he had was adversely affected by the earthquake in 2015 and that as the business has been destroyed it will collapse and leave them financially ruined. No claim is made, however, that the applicant’s parents had borrowed AU$60,000 from moneylenders or that any threats had been made against them for the repayment of that money. No updated statement has been provided from the applicant’s father to corroborate the claim made by the applicant that people are threatening his family for the repayment of the alleged loan. There is no financial information from the applicant’s father or his business and there is no information of any report or complaint to the police of any threats made against the applicant’s father or any other member of his family.
The evidence of the applicant was that his parents opened a new shop selling groceries which was smaller than the shop they had prior to the 2015 earthquake. This shop appears to have been able to successfully run for the last five years without any difficulties. He claimed that his parents and his brother’s wife were working in the shop. His brother was not working as he was suffering from depression. No information was provided of any attack or threats made against the applicant’s parents or anyone else working in the shop or any other damage done to the shop as a result of any alleged outstanding debt.
The applicant’s wife has been living with her parents. Her father was described by the applicant as a retired [Occupation 1]. He said that he was quite affluent. The applicant has been relying upon the financial support from his wife’s sister in Australia. His wife has relied upon her parents to support her in Kathmandu. There is nothing to indicate that the applicant’s wife or her family have had any difficulties while residing in Kathmandu as a result of her association with the applicant’s family and their business. If, as the applicant claimed, he would be at risk of harm from the moneylenders if he returned to Nepal, it would be expected that they would also target his wife who was living with his parents for six months upon her return to Nepal in 2016. There is nothing to indicate that the applicant’s wife or their children or any other member of her family have had any difficulties living in Nepal since she returned there in 2016 as a result of any alleged debt the applicant’s parents have in relation to their business or for any other reason.
The Tribunal does not accept that the applicant’s parents or any members of the applicant’s family have been threatened or face any risk from any individual or group as a result of alleged loans they may have arranged for their business. The Tribunal finds that the applicant does not have a well-founded fear of persecution as a person who has borrowed money and does not face a real risk of any harm from any moneylenders or any people associated with lending money to the applicant’s family should he return to Nepal.
The applicant claimed that if he returned to Nepal he would be seen as “rich” having come from Australia. There is no evidence that would indicate that if the applicant did return to Nepal that he would be seen as rich or that he would be targeted for any reason. His wife returned to Nepal and is living with her parents who the applicant described as affluent. There is nothing to indicate that his wife was targeted for any reason by any group or individual or that her parents have suffered any threat, intimidation or extortion from any individual or group. The applicant has returned to Nepal after spending time in Australia on three separate occasions. There is no information to suggest that he was targeted or faced any difficulties on his return as a returnee to Nepal from Australia.
The Tribunal does not accept that if the applicant returned to Nepal that he would be seen as “rich” or that he would be targeted for any reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as a returnee to Nepal or that there is a real risk the applicant will suffer significant harm as a result of any perception that any person or group in Nepal may have of him as a returnee from Australia.
The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. The Tribunal does not accept that any of the claims of the applicant when considered individually or cumulatively mean that he has a well-founded fear of persecution or that there is a real risk that he will suffer significant harm in Nepal. Most of the claims the applicant has raised of his perceived risk if he returned to Nepal, including the lack of jobs and a poor economy, the continuing threat of earthquakes, contracting COVID-19 and Maoist violence generally, are risks faced by the population of the country generally, if they exist at all, and are not risks faced by the applicant personally.
For the above reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or 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.
Hugh Sanderson
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:   For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 5134

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal