1619029 (Refugee)

1619029 (Refugee) [2020] AATA 1125 (4 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619029
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:4 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2020 at 5:12pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – land dispute with a rival family – robbed at gunpoint during an irregular roadblock – credibility concerns – adequate state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 3 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Pakistan. He first arrived in Australia [in] February 2011 and departed for Pakistan [in] April 2011. He entered Australia for short visits and departed for Pakistan six more times over the next four years. He entered on various kinds of visitor visas allowing business but not paid work. He claims to have engaged in commerce here for a family business involving the procurement of [specified goods]. He last departed Pakistan for Australia [in] November 2015, transiting in a third country before last arriving in Australia [in] November 2015.
[The applicant]’s last visitor visa expired on 29 February 2016. From that date his presence in Australia was unlawful until he lodged a valid protection visa application on 23 March 2016.
The Minister’s delegate refused to grant the visa on 3 November 2016 on grounds of lacking credibility. The delegate gave some weight to [the applicant]’s delay in lodging a protection visa application, in his claimed circumstances, after his last arrival in Australia and after ceasing to have a valid visa. I note however that the delay in lodging the protection visa application was arguably not as long as found by the delegate, as [the applicant] sought to lodge an application on 25 February 2016, before the expiry of his valid visitor visa, only to have it deemed invalid due to insufficient provision of personal identification material. This means the delay at least in attempting to bring protection visa claims to light was of three months rather than of four.
[The applicant] subsequently sought merits review by this Tribunal.
[The applicant] appeared before the Tribunal on 3 March 2020 to give oral evidence and present arguments. He is represented by a migration agent who did not attend. He presented no witnesses. The hearing was facilitated by an interpreter in the Urdu-English medium.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
[The applicant] claimed in his original protection visa application that he was raised in [Village 1], near the city of [City 1] in Pakistan’s Khyber Pakhtunkhwa (KPK) Province, where his father and father’s siblings owned farmland. He claimed he lived there until 2008 and then moved to reside in an estate in [Town 1] near Rawalpindi which is itself near Islamabad. He claimed his uncle [Uncle A] was involved in local politics in [Village 1] and its environs and provided newspaper stories in support of the claim. He told me his uncle’s specific political role was as an elected member of a committee involved in solving local citizens’ problems, which sounded to me like a Village Defence Committee, an observation he did not dispute at the Tribunal hearing.
[The applicant] claimed in his protection visa application, as at 2016, that his extended family and a rival family had been enmeshed in a decade-old dispute over a portion of his family’s land. He claimed that the head of the rival family, Whose name is [Mr B], was active with a rival political party. He claimed that his family’s move to [Town 1], Rawalpindi was due to the friction between the families.
[The applicant] claimed in his protection visa application that [in] November 2015, there was a confrontation between his uncle’s family and some members of the rival family on his extended family’s farmland. He claimed the rival family’s members were armed and one or two of them shot his cousin, [Uncle A]’s son [Mr C], and killed him. He claimed the police attended. He provided colour photocopies of numerous local newspapers reporting the killing and the official attention it received. He also submitted a copy, with English translation, of a police officer’s report of the incident, in which the suspected killer or killers were all explicitly named. The police report states unequivocally that the killing arose out of a land dispute. [The applicant], however, claims that the motivation for the attack and murder was purely political, and that the rival family’s intention has been to eradicate the extended family of his uncle for political reasons. [The applicant] nevertheless described the conflict between the families to me as one motivated by rivalry over a specific portion of his family’s farming land.
[The applicant] claimed in his original protection visa application that he fled to Australia the last time he arrived here because [Mr B]’s family tried to threatened to kill him for reasons of his familial connection to [Uncle A]. He claimed he and his wife were travelling at night by car just over a week after the killing of cousin [Mr C] when some men stooped the car with the use of a portable barrier usually used by police during nocturnal on-road security checks. He said this happened in the vicinity of Rawalpindi airport. He said the men were armed civilians who spoke to him and pointed guns at his head. He claimed that one of the armed men explained to him that he had orders to kill him so that it would hurt uncle [Uncle A] economically. However, he then claimed the armed man said he had orders to deliver him elsewhere alive. [The applicant]’s description of the episode struck me as being somewhat discrepant, in that the alleged assailant described his task instead of performing it and then gave a substantially different description of his task. In addition, [the applicant] told the former Immigration Department in his protection visa application that this episode occurred on the night of [date in] November 2015, but on that night, according to his passport, submitted with his valid protection visa application, he was already back in Australia. [The applicant] provided other details in his protection visa application about the police arriving and the roadside assailants giving chase, during which a police officer was shot and killed. However, at the Tribunal hearing, [the applicant] was unable to resolve consistently what happened and was said to him on the night of the alleged on-road bail-up, and even when it occurred. [The applicant] initially told me the bail-up occurred after the killing of cousin [Mr C], which was [in] November 2015, but then he described what was, essentially, an armed robbery. He said that while he was driving he found the road blocked by a car and the found any attempt to reverse out of the scene blocked by another car. Asked about the portable police barrier, he said that the incident occurred near a police checkpoint, but this scant information did not help explain why he had originally described the road-block having been caused by a portable barrier rather than by two cars.
[The applicant] went on to tell me that the only things the armed assailants said to him and his wife were about handing over his wife’s jewellery and any money they had and about their not trying to resist lest they both be shot. He did not satisfactorily explain how and why he had said in his protection visa application that the episode was all about being killed or abducted at the request of [Mr B]. He told me he found out after the robbery that the perpetrators were linked to [Mr B], but then changed his evidence, saying that he supposed they were so linked due to one episode following the other so quickly. When I asked him if this was not merely bald speculation he said it was. Meanwhile, I note that the alleged episode did not even occur in KPK province but, rather, near to Rawalpindi airport, making it somewhat hard to conceive that it had anything to do with the killing of [Mr C].
In any event, soon after suggesting that the robbery followed the killing of [Mr C], [the applicant] told me that this episode involving armed robbery of his wife and himself occurred in 2013 or 2014. He repeated this claim, which did not sit with the suggestion that it occurred after the killing of [Mr C] at all. Questioned about this discrepancy at the Tribunal hearing, [the applicant] told me that a friend wrote in the details that appear in his protection visa application. In this way he appeared to distance himself from the claims about the on-road bail-up having occurred after the killing of cousin [Mr C] as further stage in the dispute with his extended family. Give several opportunities, he was unable to provide a satisfactory resolution of these substantial discrepancies in his evidence, leaving me to consider that, if the nocturnal on-road bail-up ever occurred, it was a random criminal event that had nothing to do with the dispute at the centre of [the applicant]’s claims.
[The applicant] claimed in his protection visa application that he also faced harm of some kind from his own extended family because, after the killing of cousin [Mr C], [Uncle A] called a meeting and demanded that male members of the family assist in killing two members of [Mr B]’s family in order to exact revenge. He claimed that he alone objected to this idea because the police already had commenced prosecution in the matter and that his extended family turned on him for refusing to support the proposed vendetta, such matters being like a “religion” in Pakistani family traditions. All of these claims, however, appeared to unravel in the course [the applicant]’s presentation of oral evidence at the Tribunal hearing.
I asked [the applicant], early in the hearing, to describe the individual circumstances of relevant members of his extended family. He said his parents and two male siblings reside [in] [Town 1], which he described at the hearing as being near Islamabad (which is adjacent to Rawalpindi, where he located [Town 1] in evidence in his protection visa application). He said his family had resided there since 2006. He said his father is retired and his brothers work in [a business]. He said he has married sisters who all live in cities away from [Village 1]. He said his wife and their children usually reside with her sister in Karachi, and sometimes stay with his family in [Town 1], but return to [Village 1] during annual school holidays so that the grandchildren can spend time with their maternal grandmother.
[The applicant] told me his father and brothers return to [Village 1] from time to time as required by the court hearing the matter of the land dispute and the killing of cousin [Mr C]. He said that [Uncle A] still lives and works, running the family farm in [Village 1], and from time to time assists the court and prosecutors in the matter of land dispute and the killing of his son. [The applicant] said that his [Uncle A] has another son [Mr D] who manages the family farm in [Village 1] at the same time as having another job, which is or was, to the best of [the applicant]’s recollection, in [specified] sector.
[The applicant] confirmed to me that his uncle father and male siblings ad cousins are all assisting and supporting the prosecution of cousin [Mr C]’s killer who has been in remand for over four years since the killing. He said his uncle and everybody else were acting as appropriate under due process through their appointed lawyers. He told me the court has not yet delivered a verdict because all court matters move slowly in Pakistan. He did not suggest that his family or its case, or cases, against [Mr B] faced any discriminatory action or inaction. He said that two other men had been convicted of some complicity in the killing and had served their sentences and were free. He later suggested that the case of [Mr C]’s killer might be moving slowly because the two families had yet to arrive at a settlement or satisfaction over the land dispute that had caused the killing of a member of one of those families. He said to me that he wanted to stay in Australia until that settlement had been reached. He confirmed that in the years since 2015, no member of his extended family has tried to harm any member of [Mr B]’s family.
I put to [the applicant] that the oral evidence described immediately above appeared inconsistent with claims in his protection visa application about all of his family, essentially, except him alone, had been seeking an extrajudicial killing to avenge the fatal shooting of [Mr C] on behalf of [Mr B], irrespective of the state having laid charges in the matter. In response, he changed his evidence: he told me that he, his father and siblings had objected in 2015 to joining his [Uncle A] in a family vendetta, against [Mr B] in and his family, and that this had so infuriated [Uncle A] that the family moved to [Town 1].
There were several problems with this new evidence: firstly, [the applicant]’s family had already been living in [Town 1] for around a decade before the killing of cousin [Mr C]; secondly, it did not resolve [the applicant]’s claims about being isolated in his own views about the family’s call to revenge; and, thirdly, whether he alone or he and his immediate family dissented against his uncle’s call for extrajudicial vengeance, neither claim appeared consistent with everybody including his [Uncle A] abiding by the law and supporting due process through their lawyers.
I gave [the applicant] ample opportunity to resolve these three versions of his and his family’s position(s) in respect of their grievances with [Mr B] and his family, and he was unable to resolve them. His evidence in relation to this part of his case remained inconsistent and further compromised by what struck me at the hearing as an improvised claim.
Overall, [the applicant] made four facts very clear to me in the course of his oral evidence: one, all of his Pakistan-resident uncles and his father, who own the land they farm, including the portion claimed by [Mr B] and his kin, have been going about their day-to-day lives free from harassment and threats in [Village 1] and elsewhere, with members of his extended family living in or visiting [Village 1] by choice whenever they want to do so, and free to depart as they wish; two, they are all putting their trust in due legal process, through their appointed lawyers, rather than any of them pursuing extrajudicial means of revenge as earlier claimed; three, the state has demonstrated willingness, capacity and competence in protecting [the applicant]’s extended family from further harm by holding [Mr B]’s family to account for crimes allegedly committed, however long it takes; and, four, the conflict as described is highly localised to [Village 1], a village outside of a city in KPK province, whereas [the applicant]’s family, located in a house they own [in] [Town 1] near Rawalpindi and Islamabad, is not facing potentially relevant harm but, rather, getting on with day-to-day life as it has been doing since around 2006 or 2008, depending on [the applicant]’s slightly disparate accounts as to when his family moved there. .
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[2]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[2] Sun v MIBP [2016] FCAFC 52 at [69].

In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Overall I have found [the applicant] to be an unreliable witness in relation to many significant aspects of this matter.
I accept that [the applicant] originates from [Village 1] in KPK province. I also accept that his family have been living in [Town 1] near Rawalpindi and Islamabad since 2006 or 2008. I give some weight in this case to [the applicant]’s having lived a significant distance away from claimed events in [Village 1]. I am not satisfied, on the inconsistent evidence in this case, that he or his family fled there to avoid potentially relevant harm.
I accept that [the applicant] and his wife were robbed at gunpoint during an irregular road-block whist he was driving her in a car at night. On the evidence before me, I do not accept that this was other than a random criminal event; nor am I satisfied on the evidence before me that the episode occurred after the killing of [the applicant]’s cousin [Mr C] in 2015. I find on the evidence before me that [the applicant] has been misleading to suggest that this random act of criminal theft under threat of violence had anything to do with the land dispute between his extended family and that of [Mr B] in [Village 1].
I accept that there has been a land dispute between [the applicant]’s extended family and that of [Mr B] in the locality of [Village 1] near [City 1] in PKP province. I stress that it is a local and localised dispute that has no potentially relevant impact on [the applicant] because he and his family live and work significantly distant from [Village 1] in [Town 1] near Rawalpindi and Islamabad, and have been doing so since 2006 or 2008. I addition, I find and give weight to the fact that no-one in [the applicant]’s immediate family has had, for a significantly long time, the same or similar hands-on relationship with the land in question as [Uncle A] and his sons living or dead.
I accept that [the applicant]’s cousin [Mr C] was killed in a heightening of the respective families’ dispute on 15 November 2015. I do not accept on the evidence before me that the killing was, as claimed, made to look like it happened due to a land dispute and that politics was the real essential or significant factor in the killing. On [the applicant]’s poor performance as a witness in this matter overall, I do not accept his suggestion that party politics were in any way at play in the dispute between the families, or that they have any significance in this matter at all, notwithstanding [Uncle A]’s role serving in a locally- elected committee.
I do not accept on the evidence before me that events during and leading up to 2015 when [Mr C] was murdered have any potentially relevant ongoing implications for [the applicant] and his protection prospects in Pakistan. I find that his efforts to suggest that he faces future harm from [Mr B]’s family or from members of his own are unreliable.
In any event, I give weight to the state’s evident response to the land dispute culminating in 2015 in the killing of cousin [Mr C]. I find on the evidence before me that [the applicant] has adequate state protection from the harm he claims to fear.
I find on the evidence before me that it would be safe, practical and reasonable for [the applicant] to reside in [Village 1] where other members of his extended family continue to derive income from managing family farmland and where his wife and children could be close to his in-laws if they wish. Equally, I find that, having regard to his claims about [Village 1] being his home town, it would be safe for [the applicant] and his family to be located or to “relocate” to his family’s home in [Town 1] where he and they have lived previously and where his family currently lives and works in safety.
I find and give weight to the fact that the facts at the centre of this case relate to an isolated and localised criminal act committed significantly long ago in the course of an individual and localised property dispute, and that the state’s response in protecting the applicant, his family and their interests has been and continues to be adequate.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] is a witness of truth. For all the reasons given here, I am not satisfied that he faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to significant inconsistencies, a lack of credibility and, ultimately a failure to meet the “real chance” test. In the circumstances, his claims can no more succeed as complementary protection claims.
In the circumstances, having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 1125

4 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice