1620006 (Refugee)

1620006 (Refugee) [2019] AATA 826 (2 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620006
COUNTRY OF REFERENCE:                  India
MEMBER:Shane Lucas
DATE:2 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 02 January 2019 at 4:29pm

CATCHWORDS

REFUGEE – protection visa – India – arrived as dependant of former wife – threat by former wife’s family – political connections – no credible evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J-LA, 36, , 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is an Indian national born on [date]. He applied for the visa on 15 December 2015. The applicant provided a copy of the delegate’s decision to the Tribunal.
The delegate refused to grant the visa on the basis that he was not satisfied that the applicant would face a real chance of persecution now or in the foreseeable future for one or more of the reasons mentioned in s.5J(1)(a) of the Act should he return to his receiving country. Accordingly, the delegate determined that the applicant is not a refugee as defined by section 5H(10) of the Act or a person in respect of whom Australia has protection obligations under sections 36(2)(a) or 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by a registered migration agent. However, the applicant’s representative did not attend the hearing.
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 them self 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; if there is a real chance they would be persecuted for one or more of those reasons; and if 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant has a well-founded fear of being persecuted in India for one or more of the five reasons set out in s.5J; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Indian passport to the Department of Home Affairs, and this document was sighted by the Tribunal. On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, and that he is a national of India, which is also his receiving country.
Claims
In his application for a protection visa on 15 December 2015, the applicant provided the following written statement of his claims:
“I was born and brought up in [City 1] in state Punjab in North India.
I received a number of years of education in India and then I came to Australia on [temporary] Visa.
I came to Australia on [a temporary] Visa.
I belong to a conservative family in Punjab. My family believes in pride and caste system and considers themselves as high caste people of society.
People in India divide themselves into several castes and this medieval system is still prevailing in the society resulting in honour killing and other hate related crimes.
I commenced my early education in local area of [City 1] and I never believed in bad rituals like second marriage and sati. I respect people and had friends from all sections of society.
I requested my parents to send me abroad for higher education but my parents told me to get married with the girl of their choice and then they will send me abroad for further education.
I never abide the orders of my parents and unwillingly married a girl with whom I am divorced.
In passage of time I received lots of pressure from my in-laws to continue my relation.
But the problems were not over, our relatives refused to accept my decision of getting divorced. They tried to threaten me and my family as they have strong political links in India.
From few months I was living a peaceful life but somehow relatives of both sides still try to contact us and insisted not to come back to their home and if I will go there they can harm me and my parents by any means.
It is highly unacceptable in most part of rural society in India to get divorce.
Now it is not possible for me to go back to my home country. My relatives and Ex in-laws may kidnap me or may kill me as they think I am responsible for their daughter’s condition.
My relatives and my in-laws threatened me that I have to face consequences of the mistake I have done as getting divorced from their daughter.
I’m providing you a news clip of one such killing where the boy was beaten by his in-laws after getting divorced. For more information please refer to link: have no faith in police of my country as they are usually corrupt. I have no hope of any kind of justice and security from my country.
I’m afraid that if I go back to India, either I will be targeted or they will harm my family. I love my family a lot and don’t want to put their life in danger as well.
I believe living in Australia is safe for my life. After living a painful and miserable life for years, now I want to give a new start to my life. A better life which is free from any fears and pains.
So I request you to please grant me the protection visa at the earliest.”
The Tribunal engaged with the applicant’s claims at a hearing on 5 December 2018 at which the applicant gave oral evidence, expanding on and clarifying his written claims.
In oral evidence, the applicant confirmed that he first travelled to Australia in February 2009 as a dependent on his former wife’s [temporary] visa. This visa expired on 3 July 2013, at which time the applicant became an unlawful non-citizen. The applicant did not seek to regularise his migration status in Australia until lodging his application for a protection visa on 15 December 2015. The applicant stated that he was distressed at the time he lodged his protection visa application and that he had spoken “too late” to a migration lawyer in his efforts to seek to regularise his migration status. The applicant stated that he was advised that he could not apply for a student visa at that time as he was an unlawful non-citizen. The applicant stated that he did not want to return to India because he was afraid he would be harmed by his former wife’s family. Accordingly, the applicant lodged a protection visa application.
In oral evidence, the applicant clarified that his fear of returning to India is related principally to his concern that members of his former wife’s family wish to harm him on account of the divorce between himself and his former wife. The applicant stated that he does not know where his former wife is now living, though he believes she remains in Australia. The applicant stated that he remarried another woman in Australia in 2018.
The applicant stated that he had always resided in [City 1] prior to traveling to Australia with his former wife and that his mother remains living in the family home. The applicant stated that he remains in regular telephone contact with his mother. The applicant stated that he has two sisters, one living in [Country 1] and the other in [Country 2], and that his father died in [2010.
The applicant stated that his primary reason for coming to Australia was to live in a different country, as the applicant believes Indian society is corrupt and that he had many “hardships” there. The applicant stated that he does not maintain contact with his former wife and that his last contact with her was in early 2018 when he telephoned her and arranged to meet to exchange documentation pertaining to their divorce. The applicant stated that he needed a copy of the divorce certificate in order to marry his current spouse, and that he met his former wife at a [location in a suburb], Victoria to receive the documentation. The applicant stated his former wife behaved “normally” when they met and that she did not ask him why he needed the certificate.
The applicant reiterated his claim that his former wife’s family have threatened to harm him on account of the divorce. The applicant stated that his former wife’s brothers “keep asking about him” and that they have also telephoned him to threaten him with harm should he return to India. The applicant stated that his mother has also told him of these threats, but confirmed that she has not been threatened directly by members of his former wife’s family or by any other persons. The applicant stated that his former wife’s brothers claim he asked his former wife for money. The applicant claims that the most recent instance of threats being made against him was in January or February 2018, at which time the applicant claims members of his former wife’s family came to his home village. The applicant stated that he did not know why these persons came to his home village. In response to questions from the Tribunal, the applicant did not substantiate or detail the nature of the threats made against him in this most recent incident or at any other time, stating that his former wife’s family are angry with him because “divorce is not OK in India”.
The applicant stated that his former wife’s brothers have political connections through their employment [at an organisation]. The applicant stated that neither he nor any members of his family have reported the threats allegedly made against him to police, as they have been told that if they make such a report, his mother will be harmed. The applicant also stated that the police in India are corrupt and would not help him. He also stated that he could not live elsewhere in his country of origin as it would be “quite hard to sell everything and move to another part of India”. The applicant stated that nowhere in India is “100% safe” as his former wife’s family could find out where he was through relatives or friends. In response to questions from the Tribunal, the applicant stated that his former wife’s family might bribe people to get information about his whereabouts. The applicant stated that “anything can happen” if he returned to India and that he might be killed or harmed by his former wife’s family.
Pursuant to s.424AA of the Migration Act 1958, the Tribunal provided the applicant with a copy of a Notification regarding the disclosure of certain information under s438 of the Migration Act 1958 contained on the applicant’s Department of Home Affairs file. The Tribunal advised the applicant that it believed the notification to be invalid as the document did not state a reason as to why the information it covered should not be disclosed to the applicant or the applicant’s representative. Accordingly, the Tribunal determined to disclose the information covered by the notification to the applicant.
The Tribunal explained to the applicant that the notification related to certain information which it considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal advised the applicant that the information had been provided to Home Affairs by an anonymous source [in] June 2016 and that the particulars of the information were as follows:
Source alleges [the applicant] has lodged a fraudulent protection visa application. Source alleges [the applicant] is working illegally without any work rights…
[Identifying information regarding the applicant – e.g. name, alias, date of birth, passport number, street address, mobile telephone number, email address, vehicle registration number and the nature of his employment - was provided to the applicant at the hearing, but has been withheld by the Tribunal in this decision.]
Source stated: [the applicant] was previously residing in Australia unlawfully for three years. [The applicant] was granted a bridging visa which he still currently holds. [The applicant] attempted to enter into a contrived relationship by offering money to girls in exchange for a sponsorship. [The applicant] did not find a sponsor and has now applied for a protection visa. [The applicant] had advised the department he would be leaving the country to return home a week before he applied for a PV. [The applicant] claims he cannot return to India due to issues with his mother and father in law. [The applicant] stated they will kill him if he returns to India as he divorced there [sic] daughter. Source states [the applicant] still has a good relationship with his ex-wife and her parents. [The applicant] has no reason why he cannot return to India, [the applicant] has relatives in India who have visited him in Australia. [The applicant’s] PV application was lodged in December 2015. [The applicant] is [self-employed] [information deleted]. [The applicant] has a business card which he gives to friends and also advertises work [information deleted]. [The applicant’s] alias is [Alias 1] and he uses the mobile number as stated above. Registration number of [vehicle]: [information provided to the applicant at the hearing, but withheld by the Tribunal in this decision].”
The Tribunal informed the applicant that this information may be considered adverse to his application for a protection visa and may form part of the reason for a decision by the Tribunal to refuse his application for review. The Tribunal advised the applicant that the information appeared to indicate that he had sought to enter into a contrived relationship in order to achieve a migration outcome and that when that approach was not successful, the applicant applied for a protection visa as a means to remaining in Australia. The Tribunal also advised the applicant that the information implied that his claims for protection on the basis of his alleged fear of harm perpetrated against him by members of his former wife’s family are without foundation as he maintains a good relationship with his former wife and her family.
The Tribunal advised the applicant that he might comment on the validity of the notification and/or respond to the information at the hearing or that he might request further time to respond after the hearing. The hearing was adjourned for ten minutes while the applicant considered how he wished to proceed.
When the hearing recommenced, the applicant advised the Tribunal that the identifying information regarding the applicant was accurate. The applicant stated that the other information provided by the source regarding his alleged efforts to enter into a contrived relationship in order to achieve a migration outcome was not true. The applicant stated that he did not know and could not speculate as to the identity of the anonymous source. The applicant stated that he had never applied for a Partner visa or any other visa on the basis of a relationship with an Australian permanent resident or citizen. The applicant stated that he does not have a good relationship with his former wife and her family, and that he fears for his safety if he returns to India on account of threats made against him by members of his former wife’s family on account of their divorce.
The Tribunal acknowledged the applicant’s response to the information and provided the applicant with fourteen (14) days in which to provide any further response or comment on the information in writing (i.e. by 19 December 2018). No further correspondence or comment was received from the applicant or his representative by the nominated date.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear; that the fear is “well-founded”; or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-170.)

In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Findings
In considering the claims made by the applicant, the Tribunal finds that the applicant became an unlawful non-citizen in July 2013 and made no efforts to regularise his migration status until lodging an application for a Protection Visa in December 2015; hence the applicant applied for a protection visa only when he believed he had no other options to regularise his migration status in Australia. The Tribunal finds also that the applicant made no claims relating to his claimed fear of persecution in India at any time in over six years subsequent to his arrival in Australia in February 2009. The Tribunal therefore reasons that the applicant’s motivation for lodging an application for a protection visa on 15 December 2015 was to seek a migration outcome that might enable him to remain in the country. The Tribunal reasons also that the applicant’s oral evidence regarding his initial application for a protection visa suggests that he hoped to seek a positive migration outcome in Australia through a [temporary visa application]. In the view of the Tribunal, these factors compound to suggest that the applicant’s motivation has been to achieve a migration outcome in Australia and has not been driven by an intention or requirement to seek protection from persecution in India.
In oral evidence, the applicant refuted the adverse information concerning efforts he made to obtain an Australian sponsor for the purposes of applying for a Partner visa prior to his application for a protection visa. The applicant also refuted the adverse information concerning the veracity of his claims to fear harm perpetrated against him by members of his former wife’s family should he return to India. The applicant did not identify or speculate as to the identity of the anonymous source. The applicant denied the veracity of the adverse information, but did not provide any credible or detailed alternative explanation regarding the adverse information.
In considering the adverse information in the context of the applicant’s response, the Tribunal notes that the identifying information provided to Home Affairs by an anonymous source in June 2016 is highly detailed, and includes the applicant’s name, alias, date of birth, passport number, street address, mobile telephone number, email address, vehicle registration number and the nature of his employment. The Tribunal notes also that the applicant clarified that the identifying information pertaining to him is truthful and accurate, demonstrating that the source has or had a very good knowledge of the applicant and his personal circumstances. It follows that the source was well-placed to make credible and substantive observations regarding the applicant’s efforts to obtain an Australian sponsor for the purposes of applying for a Partner visa at that time, and to make credible and substantive observations regarding the veracity of his claims to fear harm perpetrated against him by his former wife’s family. The Tribunal finds that the applicant’s responses to the adverse information were general and non-specific. The Tribunal notes also that the applicant provided no further written statements or other information supporting his refutation of the adverse information by 19 December 2018. The Tribunal finds the adverse information provided to Home Affairs by an anonymous source to be highly credible. The Tribunal therefore gives the adverse information significant weight in forming a view of the applicant’s credibility and the veracity of his claims to a protection visa.
On the basis of the applicant’s oral evidence, the Tribunal also finds that the applicant was in direct contact with his former wife in early 2018, and that their exchange of documentation relating to their divorce was civil and proceeded without threat or incident. In oral evidence, the applicant could not substantiate or provide any detail concerning the alleged incidents in which he was threatened by members of his former wife’s family occurred or provide a detailed or credible account of any such incidents. While the Tribunal accepts that the applicant’s former wife and/or members of her family may have been unhappy with the applicant at the time of the divorce, the Tribunal finds the applicant’s claims that members of her family have threatened to harm him to not be credible. The Tribunal finds no credible evidence that the applicant’s former wife’s family has made any direct or indirect threats to harm him. On the basis of the evidence before it, the Tribunal therefore gives the applicant’s claims to fear harm from members of his former wife’s family little weight in determining whether he is likely to face harm should he return to India.
On the basis of the applicant’s oral evidence, the Tribunal finds no credible information that the applicant’s former wife’s family has any political connections of substance or have any association with persons that might harm or threaten the applicant. The applicant provided no credible evidence that the employment of members of his former wife’s family by an [organisation] provides these persons with any significant level of political influence or that any such influence has been utilised by them with regard to the applicant. It follows that the claims made by the applicant that his family has not reported the alleged threats made against him to police on account of the alleged political connections of his former wife’s family are not credible. On consideration of the evidence before it, the Tribunal therefore gives the applicant’s former in-laws alleged political connections little weight in determining whether the applicant is likely to face harm should he return to India.
Accordingly, the Tribunal finds that on the evidence before it - including the applicant’s oral evidence – the applicant would not face harm should he return to India. On the basis of the evidence before it, the Tribunal finds no credible evidence indicating any extant or ongoing adverse interest in the applicant demonstrated by members of his former wife’s family or by any other persons.
Does the applicant have a well-founded fear of persecution if he returns to India?
In oral evidence and in his written claims, the applicant stated that members of his former wife’s family have threatened that he will be harmed if he returns to India. On consideration of the evidence however, the Tribunal finds that the applicant has not provided a credible account of these alleged threats, or of his fear of harm and/or persecution, or provided credible evidence that such threats have been made either directly or indirectly by any persons or for any reason.
The Tribunal finds also that the adverse information provided to Home Affairs in June 2016 by an anonymous source is highly detailed and highly credible. The adverse information suggests that the applicant sought to contrive a relationship with an Australian sponsor in order to make a Partner visa application; that the applicant only applied for a protection visa in December 2015 when these efforts were unsuccessful and he had no other options to regularise his migration status in Australia; and that the applicant maintains a civil relationship with his former wife and her family. The Tribunal finds the applicant’s statements refuting the adverse information to be general and non-specific, and that his claim to fear harm perpetrated against him by members of his former wife’s family is not credible.
On the basis of the evidence, the Tribunal therefore finds that there is no real chance that the applicant will be harmed by members of his former wife’s family or by any other persons should he return to India. On consideration of the above findings, the Tribunal finds that there is no real chance that the applicant will suffer serious harm amounting to persecution now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to India. The Tribunal therefore finds that the applicant is not a refugee.
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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to India?
In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. This applies equally to s.5J of the Act.
As detailed above, the Tribunal has engaged with the applicant’s claims and found them to not be credible. The Tribunal has found that there is no real chance that the applicant will be harmed by members of his former wife’s family or by any other persons now or in the reasonably foreseeable future. It follows based on the above reasons and findings that the Tribunal does not accept there is a real risk the applicant will suffer significant harm from any person for any reason or for any other reason evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to India. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
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. Therefore the applicant does not satisfy the criterion for a protection visa set out in s.36(2)(a) or (aa).
There is no suggestion that the applicant satisfies s.36(2)(b) or (c) 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. It follows that the applicant cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shane Lucas
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 826

2 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction