1619575 (Refugee)

1619575 (Refugee) [2017] AATA 19 (6 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619575
COUNTRY OF REFERENCE:                  Ireland
MEMBER:B. Mericourt
DATE:6 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 January 2017 at 5:44pm
CATCHWORDS
Refugee – Protection visa – Ireland – Threats of harm by criminals – Money owed – Credibility issues – Fraudulent document – Effective police protection – EU citizen
LEGISLATION
Migration Act 1958, s 65, s 36(2)(a)–(c), s 5H(1)(a), s 5H(1)(b), s 5J(1), ss.5J(2)-(6), ss 5K-LA, s 499
CASES
MIEA v Guo
(1997) 191 CLR 559

Nagalingam v MILGEA
(1992) 38 FCR 191

Prasad v MIEA
(1985) 6 FCR 155

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan
(1996) 40 ALD 445
SECONDARY MATERIALS
Europa website accessed 8 July 2016: website accessed 8 July 2016: 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] November 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 Ireland, applied for the visa [in] October 2016. The delegate refused to grant the visa on the basis that he was not satisfied there was a real risk or a real chance that the applicant would suffer serious or significant harm if he returned Ireland. In addition he had not taken all possible steps to avail himself of his right to enter and reside in another EU member country.
On 21 November 2016, the applicant lodged an application for review of the Department’s decision with the Tribunal.
The applicant appeared before the Tribunal on 4 January 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Country of reference
On the basis of the Department’s identity check and assessment the Tribunal finds that the applicant is a citizen of Ireland.
The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Ireland, the Tribunal also finds that Ireland is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The Tribunal finds that Ireland is part of the European Union (EU) whose members are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slavonia, Spain, Sweden, and the United Kingdom.[1]
[1] Europa website accessed 8 July 2016: >
European Union citizens have the right to move freely and live in another EU country, subject to any conditions set out in the EU’s treaties. This free movement of people is one of the EU’s fundamental principles.
EU citizens with a valid identity card or passport may:
·Enter another EU country, as may their family members, whether EU citizens or not, without requiring an exit or entry visa.
·Live in another EU country for up to 3 months without any conditions or formalities.
·Live in another EU country for longer than 3 months subject to certain conditions, depending on their status in the host country. Those who are employed or self-employed do not need to meet any other conditions. Students and other people not working for payment, such as those in retirement, must have sufficient resources for themselves and their family, so as not to be a burden on the host country’s social assistance system, and comprehensive sickness insurance cover.
·Have to register with the relevant authorities if living in the country longer than 3 months. Their family members, if not EU nationals, require a residence card valid for 5 years.
·Be entitled to permanent residence if they have lived legally in another EU country for a continuous period of 5 years. This also applies to family members.
·Have the right to be treated on an equal footing with nationals of the host country. However, host authorities are not obliged to grant benefits to EU citizens not working for payment during the first 3 months of their stay.[2]
[2] Europa website accessed 8 July 2016: under a public interest non-disclosure certificate
The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identification of the applicant which is not in dispute and the reason for the determination that he was not eligible for a bridging visa (due to his conviction of serious crime) of which the applicant is aware and told the Tribunal himself.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in [year] in Ireland and is a citizen of Ireland. His mother and one brother reside in Ireland. His father resides in [Country 1]. The applicant is single and has no dependents. He stated that his occupation is [occupation].
[In] February 2009 the applicant was granted a working holiday visa (subclass 417) and he entered Australia [in] March 2009. He was granted a further working holiday visa [in] February 2010. This visa ceased [in] March 2011. He lodged an application for a student visa which was granted [in] May 2011. During the period of his visa he departed Australia twice in September 2011 for four days and in January 2012 for seven days, on both occasions for holidays in [country].
[In] July 2012 the applicant’s student visa was cancelled due to non-compliance. He lodged an application for review of the Department’s decision with the Migration Review Tribunal (MRT) (differently constituted) which affirmed the Department’s decision on 17 July 2013. The applicant’s associated bridging visa ceased [in] August 2013.
[In] October 2012 the applicant was remanded into criminal custody and charged with various offences. [In] November 2014 he was convicted of [certain] offences and sentenced to [term of] imprisonment commencing [in] October 2012 with a non-parole period of [number] years. [In] October 2016 the applicant was released from [a] Correctional Centre and detained under s.189(1) of the Act and subsequently transferred to [an] Immigration Detention centre.
The applicant lodged his application for protection [in] October 2016.
Claims for protection
In his written statement of claims dated [in] October 2016 the applicant stated that he left Ireland because of a threat to his life. He stated that he would be killed if he returned to Ireland as there is a serious threat to his life. He was informed by the police to change his whole life, to never sleep in the same room on more than one occasion, to change where he went on a daily basis, to take different routes every day by bus or car and never walk the same route to wherever he was going. “This all just got (too) much for me. I was chased by many different cars and all through people’s back gardens and going to be killed”. The applicant stated that if he returned to Ireland he would be in danger of serious injury or death and he would also be putting his family in a dangerous position. He feared he would be shot and may even get his family killed particularly if his [brother] is mistaken for him. He had been chased by [number] men and a car around his area and been told by [people] whom he does not know that he is going to be killed. He believed it was impossible for the police to provide help. The police told him they cannot provide help if he stayed where he was. He did not try to move to another part of Ireland because he came straight to Australia. He believes the threat exists in all Ireland because it is so small and the threat is still current.
The applicant was interviewed by a delegate of the Department [in] October 2016. At the interview he stated he cannot return to Ireland because he will be harmed by criminal gangs.
The applicant provided the Department with a Garda (Police) Information Message dated [in] 2008 stating “Information has been received by [the police] (Dublin) that a threat to the life of (the applicant) exists at this time”. The message was faxed [in] January 2008. The handwritten date on the message had been changed from [date]/01/2008 to [date]/11/2008.
The delegate stated in the decision record [in] November 26 that he found the applicant had presented falsified evidence to support his claim that he would face a threat to his life in Ireland as it had been faxed 11 months before the document was allegedly issued. The applicant had never identified the people who allegedly wish to harm him or the reason why they would wish to harm him. The delegate also found that the applicant has not taken all possible steps to avail himself of the right to enter and reside in the EU. He refused to grant the visa [in] November 2016.
Tribunal hearing
The Tribunal discussed the applicant’s background, history since he arrived in Australia and his current claims for protection with the applicant. His evidence is summarised as follows:
The applicant left school at about [age] or [age] years as he had trouble at school due to his [condition]. He worked as a [occupation] in Ireland prior to coming to Australia.
The applicant said that when he first came to Australia on a working holiday visa he worked as a [occupation]. He then applied for a student visa initially to do a [course]. However, he found it too difficult due to his [condition] and transferred to a [different] course. He obtained his [qualification] but then his student visa was cancelled in 2012 for non-attendance. He claimed that he had been attending classes and had not received any notices about his attendance before his visa was cancelled. At that time he was living with his girlfriend in a share house in [suburb]. He was working part-time as a [occupation] to support himself.
Soon after the applicant’s student visa was cancelled he was arrested, charged and sent to jail for [certain] crimes. He said that he had started hanging around with the wrong crowd in Australia and getting into [a behaviour] which had also been his problem in Ireland.
The applicant started a [program] about 6 months before he was released from jail and continued the program in [immigration detention]. He completed the program 4-5 weeks ago and [is] focusing on his [occupation].
The applicant said that he has never read the Department’s decision [and] no-one has read it to him. He did not know the reasons for the Department refusing to grant the visa.
The applicant now has a valid passport and is able to depart Australia.
During the hearing the applicant had some difficulties remembering when specific events occurred and some difficulty explaining the details of events. The Tribunal’s summary of his evidence below is based on the sequence of events after clarification of approximate periods of time in which incidents occurred and repeated clarification of specific events.
Claims
The Tribunal read the applicant’s written statement of claims to him and asked if they were correct. He agreed that what was written is correct.
The applicant said that he had been into [criminal behaviour] in Ireland since he was a kid. He got into [debt]. On several occasions he was threatened and had guns pointed at him when demands were made for money that he owed. However, he was on [a substance] and “did not realise what he was doing”. Things got “too much” for the applicant and he went to [Country 2] for 9-10 months to get away from the [criminals]. According to the applicant’s sequence of events this would have been in about 2007. He had no problems with the [criminals] while he was in [Country 2].
After he returned to Ireland the applicant went to [therapy] for three months. Then he went to a “day [therapy] project” five days a week. He was trying to stay away from everyone but the [criminals] were aware he was back in Ireland and started harassing him for their money again. They started phoning him and chasing him. When he was in [therapy] and getting his life back on track the gangsters came to his house looking for him and burnt out his car which was in front of his house. On one occasion he was chased and was hit on the back of his [body] with [an implement]. The garda issued him an information message stating his life was at risk. He had not reported anything to the police and could not explain why he was issued with the information. Three days later someone tried to drag him into a car and chased him down the road through back gardens and over fences. He decided to come to Australia and hid out for the next three weeks while he waited for his visa to be granted. He thought he had been back from [Country 2] for about 6-7 months when he left for Australia.
The applicant said his mother told him that people came twice to his house in the month after he left Ireland looking for him. Then 9-12 months later (in late 2009 or early 2010) he posted on Facebook that he was returning to Ireland and they came to his house again. They have not come to his house since then. As he still owes money to the [criminals] he thinks he would still be at risk of harm from them.
The applicant said that he wanted to stay in Australia but not if it meant remaining in [immigration detention]. He agreed he could go and live with his father in [Country 1]. He believes he was not given the option to go to [Country 1] at the time he was taken to [immigration detention] and that is why he applied for protection. He thinks he would be sent back to Ireland where he could be seen in the airport in Dublin by someone and threatened. He would be placing his family at risk if he returned, particularly his brother who looks like him and may be mistaken for him. The applicant told the Tribunal that his brother has not been threatened or mistaken for him during his absence over the past 8 years.
The Tribunal asked the applicant why, if he feared that he would be killed when he arrived in Australia in 2009 he did not apply for protection at that time, and did not make an application until he was detained in [immigration detention] in October 2016.
The applicant said that he didn’t think of applying for protection while he had a working holiday or student visa and nor did he think of doing so while he was in jail.
Pursuant to s.424AA the Tribunal put to the applicant that the Garda Information Message he provided to the Department had been falsified, in that the date of the message had been altered to [date] November 2008, yet it had been faxed 10 months earlier [in] January 2008. This would indicate that he received the message over a year before he departed Ireland. The Tribunal showed the applicant the message and where the dates had been changed. The Tribunal informed the applicant of his right to have additional time to comment and/or respond and/or to respond in writing.
The applicant denied changing the date on the Garda information message and stated that is how he received it. His mother still has the original and could send it to the Tribunal. The Tribunal agreed to give the applicant two weeks to provide the original.
On 6 January 2017 the applicant provided another photocopy of the Garda information message which is identical to the one he had provided to the Department. He offered to have his mother take it to the police in Ireland and sign that it was genuine. The Tribunal declined as it accepts that the Garda issued an information message to the applicant stating that information had been received that there was a threat to his life. However, given the date that the fax was sent - [in] January 2008, and the alteration of the date within the message to [date]/11/2008, the Tribunal is satisfied that it was sent to the applicant [in] January 2008.
FINDINGS AND REASONS
Requirement that the decision-maker be ‘satisfied’

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.)
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, s/he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook also states (at paragraph 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
The Tribunal found the applicant’s evidence to frequently be vague, lacking in any specific detail and confused about the sequence of events. However, it was also evident to the Tribunal that the applicant’s poor literacy and lack of education contributes to his inability to clearly articulate his story. The Tribunal finds his evidence to be unreliable and somewhat confused but not significantly embellished. Given the applicant’s own evidence about his [criminal behaviour] in Australia, supported by his convictions here, the Tribunal is satisfied that, on the whole, the applicant did fear harm from [criminals] to whom he owed money in Ireland as discussed below.
Nevertheless, the Tribunal finds that the applicant provided falsified evidence to the Department as the Garda Information Message he provided clearly has had the dates changed from January to November 2008 in order to support the applicant’s story that the most serious events occurred shortly before he departed Ireland when in fact it appears they occurred a year before he departed Ireland.
Claims related to fear of harm from [criminals] or gangsters in Ireland
The Tribunal accepts the applicant’s evidence that he has been involved in [criminal behaviour] in both Ireland and Australia. His evidence is supported by the fact of his convictions for [certain] offences in Australia.
The Tribunal accepts the applicant’s claims that he got into debt with [criminals] in Ireland and that he was threatened by them. The Tribunal accepts that on various occasions in 2007 and 2008 he was chased and threatened with violence.
The Tribunal is satisfied that the police (garda) issued an information message [in] January 2008 to the applicant stating that information had been received that his life was threatened. No other details were provided. The Tribunal is satisfied that the threats were more than likely from [criminals] to whom the applicant owed money.
The Tribunal finds that the applicant remained in Ireland for just over a year after he was issued with the garda message.
Does the applicant have a well-founded fear of being persecuted in Ireland for one or more of the five reasons set out in s.5J(1)?
The Tribunal finds that the harm the applicant fears is serious harm having regard to the instances of serious harm set out in s.5J(5) of the Migration Act (see attachment below)
However, the Tribunal is not satisfied that the applicant fears persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion as set out in s. 5J(1).
Moreover, the refugee criterion is not met if effective protection measures are available to the person in the receiving country (s.5J(2)). The Tribunal is satisfied that the Irish police and Irish authorities would be in a position to provide effective protection measures as defined in s.5LA of the Act. There is no evidence before the Tribunal that Ireland does not have an appropriate criminal law, reasonably effective police force and an impartial judicial system. The Tribunal considers that the applicant would be able to access effective protection from the Irish authorities. The Tribunal acknowledges that effective protection cannot guarantee that citizens will never experience violence, however, the Tribunal is satisfied that the Irish authorities are willing and able to offer effective protection as required by s.5LA of the Act. This is supported by the fact that the Garda issued the applicant with an information message that they believed that a threat against his life existed and that they also provided him with advice about how to keep himself safe.
Based on the above findings, Tribunal finds that the applicant does not meet the refugee criterion as set out in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ireland, there is a real risk that he will suffer significant harm?
The Tribunal finds that the harm the applicant fears is significant harm having regard to the instances of significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
As discussed above, the Tribunal accepts the applicant’s claims that he was threatened with violence by [criminals] to whom he owed money in 2007 and 2008.
Based on the Garda Information Message dated [in] January 2008, the Tribunal finds that the applicant remained in Ireland for over one year after being informed that a threat to his life existed. The Tribunal is not satisfied that during 2008 he suffered any significant or serious harm, despite the threats made to him by [criminals] and the fact that he was chased by them.
The Tribunal accepts the applicant’s evidence that in the month after he left Ireland people called at his home and asked his mother about his whereabouts. The Tribunal also accepts that a year later, in response to the applicant posting his intention to return to Ireland on Facebook his mother reported someone visiting the house again on one occasion. The Tribunal accepts that no-one has called at his house asking for him since the end of 2008 and that his brother has not been mistaken for him or harmed since he departed Ireland.
Based on the above findings both individually and cumulatively, the Tribunal cannot be satisfied that after a period of eight years since he departed Ireland that there are substantial grounds for believing that there is a real risk that he will suffer significant harm if he returns to Ireland now or in the foreseeable future.
Even if the Tribunal accepted that there are substantial grounds for believing that there is a real risk that the applicant faces significant harm in Ireland, given the findings in paragraphs 16 and 17 above, the Tribunal is satisfied that the applicant has a right to enter and reside, temporarily or permanently, in any of the 27 other EU countries. The Tribunal is not satisfied there is any evidence that those other countries would return the applicant to Ireland or anywhere else, therefore ss.36(5) and 36 (5A) do not apply. No evidence has been provided that authorities in Ireland have charged, or are investigating, the applicant in relation to the commission of any offences such that he may be extradited to Ireland.
The applicant told the Tribunal that he could safely reside in [Country 1] where his father lives and that he previously safely resided in [Country 2] for a period of 9 to 10 months. He expressed a preference for returning to [Country 1] rather than Ireland or remaining in [immigration detention].
The Tribunal, therefore, is of the view that the applicant is not owed protection obligations by Australia because s.36(3) applies and none of the qualifications in s.36(4),(5) and(5A) apply.
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.
B. Mericourt
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 19

6 January 2017

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Immigration

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