1621990 (Refugee)

1621990 (Refugee) [2020] AATA 818 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621990
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Hugh Sanderson
DATE:6 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 January 2020 at 8:01am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – monarchist – threats and attacks by Maoists – information in last student visa application showed intention to return to home country – application for protection only after student visa application exhausted – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa on 13 May 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of the visa.
Background
The applicant was born in Nepal and is currently [age] years old. He provided to the Department a copy of his Nepalese passport issued [in] 2015 valid until [2025]. He did not provide any details of his family in his application, but stated that he had contact with his father in Nepal by telephone.
The applicant first entered Australia [in] November 2008 holding a Student visa. He was granted a series of Student visas after that date. He applied for a further Student visa on 4 December 2014. That application was refused by the Department on the grounds that the delegate was not satisfied the applicant intended a genuine temporary stay in Australia. The applicant sought a review of that decision before the Tribunal (differently constituted).
In support of that application, the applicant provided a statement where he stated the following:
I came to study abroad so that I can go back to my home country after finishing my studies, so that I can continue my career in my homeland. I was trying to study the course relating to ongoing job market and higher possibilities of bright future in my country…
I am thinking to finish the course which I am starting currently and visit my family as soon as possible. After searching for long time finally I got a course through which I can do better in my life as I came to know that in Nepal it is a shortage of marketing personnel.
The Tribunal hearing the Student visa application was not satisfied the applicant intends genuinely to stay in Australia temporarily and accordingly he did not meet the criteria for the grant of the visa. The Tribunal affirmed the decision to refuse the applicant the Student visa on 7 January 2016. The applicant then applied for Ministerial intervention which was not considered. The applicant applied for the Protection visa on 13 May 2016.
In his application to this Tribunal, the applicant made the following claims:
·The applicant left Nepal because there was a risk to his life as he was threatened by Maoists because he was a strong supporter of the monarchy;
·When he was in Nepal, he was threatened many times and they used to beat him with belts and bamboo sticks;
·To save his life, the applicant had to stay far away from his house and could not contact any of his family members due to the risk of being tracked down by the Maoists;
·He had sought help from friends and relatives but they had refused to help him thinking that they might then get in trouble with the Maoists;
·He fled to Kathmandu, but was regularly followed by Maoists and he had to hide and run to save his life;
·His father had recently advised him that there were Maoists still looking for him;
·The authorities had declined to give him protection by saying they cannot pay sufficient attention to a single person; and
·He could not relocate anywhere within Nepal.
The applicant was invited to attend an interview with the departmental officer, however, he failed to attend that interview. The delegate who considered the application was not satisfied the claims made by the applicant provided a sufficient basis to be satisfied that the applicant is, in fact, a monarchist who fears any harm from Maoists or any other group or person if he returns to Nepal. The delegate was not satisfied the applicant was a refugee as defined in s.5H(1) of the Act and was not satisfied that as a necessary and foreseeable consequence of being removed to Nepal there was a real risk the applicant would suffer significant harm. Accordingly, the application was refused.
Information to the Tribunal
The applicant was invited to attend a hearing before the Tribunal on 13 November 2019. He failed to attend the hearing and the Tribunal dismissed the application. The applicant contacted the Tribunal on 21 November 2019 claiming that he had been sick on the day of the hearing and requested the matter be reinstated. The Tribunal reinstated the application and relisted the matter for hearing.
The applicant appeared before the Tribunal on 10 December 2019 to give evidence and present arguments.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and why it may lead the Tribunal to affirm the decision under review. It would then ask the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.
The applicant said that his parents and [sibling] continue to live in Nepal. His parents are farmers living in Baglung. His [sibling] is married and lives in Kathmandu. He contacts his parents about twice a month. He said that his parents and [sibling] have no problems living in Nepal.
The applicant claimed that he could not return to Nepal because he is a supporter of the monarchy and he would be targeted by Maoists. When asked what the political opinion of the monarch was, the applicant said that he did not know. He said that the monarch is now just an ordinary man. He was not able to provide any information about any movement or party that was supporting a return of the monarchy in Nepal.
The applicant said that as soon as he arrived in Australia in 2008 he believed he could not return to Nepal because he was a supporter of the monarch. He said that all the time that he had been in Australia he was too scared to return to Nepal.
The Tribunal asked the applicant to provide details of what had happened to him in Nepal that would make him fearful of returning there. He said that the Maoists threatened him. He said this happened between 2004 or 2006 or 2007. He said that the Maoists would still be looking for him. When asked why the Maoists would be targeting him the applicant was not able to provide any clear answer. He claimed that he was beaten up one time and taken to hospital. He said that he hurt his back and ribs. He said that there was no evidence to support this claim. He could not recall when he was attacked.
The applicant said that he was just an ordinary member supporting the monarchist. He said that he was not involved in any party or organisation or that he held any position of authority. He said that he had no evidence to support the claim that he had ever supported the monarchy when in Nepal.
The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the statement provided by the applicant in respect of his review application for the refusal of his Student visa referred to above. The Tribunal noted that the applicant in that statement dated 22 December 2015 indicated that he intended to return to Nepal. The statement indicated that he had no concerns about returning to Nepal or fear for his safety if he returned to Nepal. This indicated claims being made by the applicant were not credible and undermined the credibility of the applicant and the claims he was making.
The applicant claimed that when he was a student he thought the situation in Nepal might change which was why he did not indicate that he had any fear for his safety at that time. The applicant acknowledged that at no time after he arrived in Australia in 2008 did he claim that he had any fear of returning to Nepal until he filed his Protection visa application. He said that he was always hoping that the situation in Nepal would change but his father told him that it was dangerous in Nepal. He did not provide reasons why his father thought it would be dangerous for him.
The Tribunal referred to country information (cited below) which indicated that the security situation throughout Nepal had dramatically improved since the end of the conflict there in 2006. The Tribunal referred to information which indicated that political opponents of Maoists, including monarchists, do not face violence, unless they participate in violent political demonstrations, in which case they faced no greater threat of violence than other participants. All this information indicated that the situation in Nepal was such that even if the applicant was a monarchist he would not face any persecution or threat of harm.
The applicant said that he had no comment about this. He said that his family has told him that it is not okay in Nepal. He had no other information to indicate he would face any persecution or threat of harm if he returned to Nepal.
The Tribunal noted that the applicant had claimed he feared returning to Nepal since arriving in Australia in 2008 and had always feared returning to Nepal. As the applicant did not apply for a protection visa until after he had been in Australia for seven years and had exhausted all attempts to remain in Australia, this delay indicated that his claims were not genuine. The applicant said that when he was studying in Australia he did not have to worry about it. He claimed that, as he had applied for review of the refusal to grant him a Student visa, he did not have to make an application for a Protection visa. He acknowledged that at no time did he make a claim that he faced any threat of harm in Nepal.
The Tribunal noted the treaty between Nepal and India which would allow the applicant to live in India if the applicant believed that he faced any persecution or harm in Nepal. The Tribunal asked if there was any reason why he could not live in India if he feared returning to Nepal. The applicant said that he would prefer not to go to India and would instead live in Nepal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of Nepal. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of ‘refugee’ in s.5H of the Act, the Tribunal accepts that Nepal is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Nepal is the receiving country.
The basis of the applicant’s claim is that he supports the monarchy in Nepal. He claims that as a ‘strong supporter of monarchy’ he was threatened by Maoists and if he returned to Nepal he may be killed by Maoists. The Tribunal does not accept that the applicant was a supporter of the monarchy or that he was targeted for any reason by Maoists or any other group in Nepal. The Tribunal does not accept that if the applicant were to return to Nepal he would be targeted or persecuted or face a real risk of serious harm by Maoists or any other individual, group or organisation for any reason.
In his Protection visa application, the applicant provides vague and general details of any claim of any persecution in Nepal. Although claiming to be ‘a strong supporter of the monarchy’, he provided no information as to what activities he has been involved in as a supporter of the monarchy apart from saying that he attended rallies. He did not indicate that he has been associated with any political party or other organisation which would indicate that he would be identified as a supporter of the monarchy. When asked about the current opinion of the monarch in Nepal, the applicant was not able to provide any information. He did not indicate that he was aware of any support or movement for the return of the monarch. He simply indicated that the monarch was now living an ordinary life. The information the applicant gave about the monarchy does not support a finding that the applicant is a supporter of the monarchy or that he is aware of any movement or organisation that would support the monarchy.
When interviewed by the Tribunal, the applicant was again unable to provide any information which would indicate that he has been involved with any political party or organisation which would lead him to be identified as a supporter of the monarchy. When questioned about this, he claimed that he was ‘an ordinary member’. He claimed that he attended rallies to support the monarchy. He did not indicate that he was involved in organising any rallies or coordinating with anyone else in the support of the monarchy or the promotion of the monarchy in any way. He provided no information which would indicate that he actually did attend any rallies to support the monarchy or any details of when or where these purported rallies took place. The Tribunal finds that the applicant does not have a profile by which he would be identified as a supporter of the monarchy or of any other political organisation which would lead him to be targeted or persecuted or face any real risk of serious harm for any reason.
In his application the applicant claimed that he ‘had experienced big harms’ while living in Nepal. He claims he was threatened many times and he was beaten up with belts and bamboo sticks. He provided no details of when these assaults took place or why he would have been targeted in such a way. At the hearing, he again provided no details of the assaults or what happen. He claimed that the assaults happened between 2004 and 2007. He was not able to provide any further details of the nature or extent of the assaults. He claimed that he was hospitalised as result of an attack. He was not able to provide any details of this, simply saying that he hurt his back and ribs.
The Tribunal does not accept that if the applicant had been subject of an assault which led to his hospitalisation that the applicant would not have referred to this when he applied for his Protection visa. That he did not make any claim in his initial application that he had been hospitalised as a result of an assault due to his support of the monarchy undermines the credibility of this claim. The applicant claimed he did not previously mention this as he had no evidence to support it. As there is no evidence to support any of his other claims the Tribunal does not accept that this would be a valid reason for not claiming he had been hospitalised as a result of an assault, if this did happen, when he initially applied for the Protection visa.
The applicant did not provide any information to indicate that he was ever hospitalised at any time as a result of an attack. He claimed that this was not how things happened in Nepal. The Tribunal does not accept that, if the applicant were hospitalised as result of injuries he suffered after an attack, the hospital would not have some record of his hospitalisation. The Tribunal does not accept that, if there were records of that hospitalisation, the applicant would not be able to obtain information from the hospital to confirm the injuries he suffered. As the applicant’s parents remain living in Nepal and appear to have no problems from the authorities or anyone else in Nepal, if the hospital were able to confirm the injuries suffered by the applicant then his parents would be able to obtain this information on the applicant’s behalf. That nothing has been provided indicates that this claim is not genuine.
The Tribunal does not accept that at any time the applicant has been involved in rallies or protests to support the monarchy. Tribunal does not accept that the applicant is a supporter of the monarchy or that he has a profile whereby he would be identified as a supporter of the monarchy. The Tribunal does not accept that the applicant has been involved in any political or other organisation whereby he would be targeted or be persecuted or face a real risk of significant harm by any individual, group or organisation for any reason.

The applicant arrived in Australia in 2008 on a Student visa. The applicant claimed that when he arrived in Australia he left Nepal due to a risk for his life and that throughout the time that he was in Australia he feared returning to Nepal. At no time prior to applying for the Protection visa in 2015 did the applicant claim that he feared returning to Nepal. In contrast to the claims now made that he always feared returning to Nepal, the applicant provided a statement in support of his Student visa application that he planned to return to Nepal and looked forward to a bright future in his country.
The applicant only applied for a Protection visa after he had been refused a Student visa by the Department and that decision had been affirmed by the Tribunal on review. The applicant had applied for Ministerial intervention without success before the current application was made. The application was only made after the applicant had been in Australia for more than seven years and after he had exhausted every other attempt to be able to remain living in Australia.
The Tribunal does not accept that if the applicant had any genuine concern about returning to Nepal that he would not have applied for a Protection visa soon after arriving in Australia. The Tribunal does not accept that simply because the applicant had been granted Student visas that he would not have raised his belief that he faced persecution and harm if he returned to Nepal due to his claimed support of the monarchy. As indicated above, over the period that the applicant did hold his Student visas and when he was applying for a review of the Department’s decision to refuse a Student visa the applicant claimed that he was looking forward to return to Nepal due to the bright future he believed his country had. The fact that the applicant delayed any application for a Protection visa for seven years and it was only upon his exhausting his final attempt to be able to remain in Australia that the application was made does not support the claim that he faces any persecution or risk of significant harm if he returns to Nepal.
The applicant claimed that Maoists would be targeting him due to his claimed support for the monarchy. Country information about Nepal does not support the claim that Maoists would be targeting the applicant for any reason.
The most recent report from the Department of Foreign Affairs and Trade (DFAT) notes that a people’s movement and a joint alliance of Democratic parties and Maoists forced the king to relinquish direct rule in Nepal in April 2006. The monarchy was abolished and Nepal became a republic in 2008. The Maoists have been involved in the government since then, usually in coalition with other parties. There is little information that there is any ground swell of support for a return of the monarchy that has been subject to any restrictions.
The report states that ‘the overall security situation throughout Nepal has dramatically improved since the end of the conflict (in 2006).’[1] In respect of any fear of Maoists, the report states that ‘Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they faced no greater threat of violence than other participants.’[2]
[1] DFAT Country Information Report – Nepal dated 1 March 2019 at 2.41.
[2] DFAT Country Information Report – Nepal dated 1 March 2019 at 2.3.45.
Other independent organisations have also concluded that since the end of the Civil War in 2006 the security situation in Nepal has improved and the Maoists are not a threat to any group. A report from the Immigration and Refugee Board of Canada dated 26 September 2015, citing several sources, reported that ‘Maoist violence targeting individuals or members of other political parties dramatically decreased with the end of the conflict in 2006’. Other sources indicated that organised human rights violations/abuses are not taking place in Nepal due to the Maoist party.[3]
[3] Nepal: Instances of kidnapping and extortion by Maoist groups and affiliated student groups, including targeting of the Nepal Congress party and pro-monarchists – Immigration and Refugee Board of Canada, 26 September 2015, 20190607164252.
When this information was put to the applicant, the applicant said that he had no comment about this but claimed that his family said that it was not okay in Nepal. The applicant has not provided any alternate credible information which would indicate that monarchists or any other political group face any persecution or risk of significant harm from Maoists in Nepal. The applicant provided no information why his parents would have told him that it was not safe in Nepal when he said they had no problems there.
For the above reasons, the Tribunal does not accept that the applicant has ever been a supporter of the monarchy or that he has a profile by which he would be identified as a supporter of the monarchy. The Tribunal does not accept that the applicant has ever suffered any harm or been the subject of any threats from any Maoist group or member or from any other individual, group or organisation in Nepal. The Tribunal finds the current security situation in Nepal is such that, even if the applicant were a supporter of the monarchy, he would not face any persecution or real risk that he would suffer significant harm from any individual, group or organisation in Nepal.
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.
Hugh Sanderson

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

[2020] AATA 818

6 January 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing