1700031 (Refugee)

1700031 (Refugee) [2021] AATA 3468 (7 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700031
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:7 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2021 at 10:57am
CATCHWORDS

REFUGEE – Protection visa – Nepal – estranged from father and brother – fears harm from father – inconsistent evidence –failed to attend hearing – inability to question her about the veracity of claims –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 16 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 3 May 2016. The delegate refused to grant the visa.
The applicant was invited to appear before the Tribunal on 6 July 2021. The applicant’s migration agent advised that the applicant would not be attending the hearing and asked the Tribunal to make a decision on the material before it.
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. The Tribunal has before it the DFAT Country Information Report –Nepal, 1 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant applied for a [student] visa [on] 17 December 2007, which was granted on 1 March 2008. The applicant entered Australia on [date] April 2008. The applicant then departed Australia on [date] June 2010, returning to Australia on [date] August 2010. The applicant was granted a further [student] visa [on] 24 November 2010. The applicant then applied for a [Partner] visa [on] 12 December 2012, which was refused by the Department on 27 June 2014. The applicant then applied for a merits review of that decision, which was refused on 29 July 2015. The applicant then lodged a request for Ministerial intervention on 19 August 2015, which was refused on 29 March 2016. The applicant applied for a protection visa on 3 May 2016. The applicant was refused by the Department on 16 December 2016. The applicant applied for a review of that decision on 2 January 2017.
The following information is apparent from the application for protection forms: The applicant was born on [date], and is of Nepalese ethnicity. The applicant speaks, reads and writes Nepalese and English. The applicant has been in a de facto relationship since [May] 2015. The applicant has a brother, mother and father who all reside in Nepal. In her statutory declaration, the applicant claims to only speak to her mother. The applicant does not list any prior addresses. The applicant studied a [degree] at [a college] from September 2007 until March 2008, then studied [a course] at the [Institute 1] (Sydney) from April 2008 until October 2008, before studying [another course] at the [Institute 1] from April 2008 until October 2008 and [a qualification] at [College 1] (Sydney) from October 2009 until December 2012. The applicant worked at [a workplace] from June 2012 until February 2015 and has worked from February 2015 until current at [a workplace]. The applicant has only ever travelled between Australia and Nepal, visiting Nepal from [January] 2010 until [August] 2010. The applicant has no recorded convictions.
The applicant provided a written statement to the Department dated 18 April 2016 setting out her claims for protection, as follows (not corrected for spelling or grammar):
1.I am citizen of Nepal and I am [age] years old.
2.I first entered Australia on [date] April 2008 holding [a] Student Visa. Apart from one month period from [June] 2010 to [August] 2010, I have resided in Australia since my first arrival.
3.My parents and brother never came to Australia and they continued residing in Nepal.
4.I was granted a further [Student] visa on 4 May 2012 and this visa expired on the 4th of December 2012. Since expiry of this visa I did not hold a substantive visa.
5.My family strongly opposed this relationship as [Mr A] was a Muslim. During conversations with me and [Mr A], although my mother would keep silent, my father and my brother would express their unhappiness about our marriage and would state that it is best for us to separate and go our own ways.
6.On the 12th of December 2012, I made an application for a Partner Visa on the basis of my relationship with [Mr A].
7.My family's negative reaction to my marriage with someone not from our religion was not a surprise to me. When I was in Nepal for the short one month holiday, I was introduced to a Nepalese young man of our religion and my family insisted that I consider him for marriage as he was going to be coming with his family to ask for my hand.
8.My return ticket to Australia was on [date] of August 2010 and it was agreed between the two families that the family of the young man who I was to marry were going to come and ask for my hand on [date] of July 2010.
9.I did not want to marry someone I did not know anything about; someone I had no feelings for. So, I left the house on [date] of July 2010 without telling my parents to stay over at a friend house for the night to avoid being pushed into a marriage I did not want.
10.When the time got closer to our guests' expected arrival, my parents and brother started calling me continuously on my phone. I did not pick up. Next, I started receiving threatening text messages from my brother and father. That's when I decided to switch off my phone.
11.Close to midnight the same day, my father and my brother arrived at my friend's house and found me there. My father started yelling at me and swearing. He said, "You brought shame to the family, you have no respect for us or for yourself. You don't deserve to live because you have no honour." Next, he started hitting me with all his strength. He punched me, kicked me, strangled me and pulled my hair". I was left in a powerless state, lying on the ground. There was no one to help. My brother watched in pride and my friend and her family were helpless as it was a domestic issue.
12.My father and brother left me there, at my friend's house. I stayed the night there and the following night until it was time for me to travel back to Australia.
13.About 6 months after coming back to Australia, things cooled down and I started talking to my family again. But it was not to last long. It all broke apart again when I met [Mr A] and decided to marry him.
14.My family was totally against it. Although my mother refrained from expressing any word of hate towards me, my father and brother were too generous in their hate expressions towards me. They also threatened to kill [Mr A] if he did not separate from me.
15.Eventually, their hatred and threats worked and gave results. [Mr A] and I started experiencing problems in our marriage which later resulted in separation. [Mr A] and I have made a mutual application for divorce and we are currently waiting for it to be finalised.
16.After my separation with [Mr A], I was welcomed again in the family. In my talks with my father he was telling me words of the following nature, "Everybody can make mistakes. You have done too. You have disrespected us; your family. But I have done too. I have said words to hurt you; I have hit you and I have made threats to kill you. Everybody makes mistakes. We are all human. But I forgive you and you must forgive me as what I did was the correct thing under the circumstances to protect you. Now, please come back home and marry a good man of our culture and our religion."
17.I avoided going back to Nepal by telling my family that I had further study to do in Australia. This was not true. I did not want to go back to Nepal because this time I knew my father would not allow me to return to Australia.
18.Sometime later, I met [Mr B]. I am in a de facto relationship with [Mr B] at the moment.
19.Although, I tried to keep [Mr B] a secret from my family, sometime into the relationship, [Mr B] wanted to meet them and he insisted. Next, I introduced my family and [Mr B] to each other over the internet, video talk.
20.My father reacted furiously, my mother started crying and my brother cut our conversation short by turning off the video chat. I remember my brother uttering the words, "You will pay for this!" just before he turned off the chat.
21.Since the happening of this, I have never called to speak to my father or my brother. I only call to speak to my mother secretly who always advises me nicely to separate from [Mr B] and return to Nepal.
22.On one occasion, my mother was caught my father whilst she was speaking to and my father took the phone and swore at me and called me words like, "You are filthy and have no honour, you have no place in our lives or in our home anymore, never call your mother again. If I catch your mother speaking to you again I will hurt her".
23.After the happening of this, I only speak to my mother when she alerts me first that she is available to speak to me. I avoid calling her randomly.
24.I fear that if I was to return to Nepal, my father will hurt me. I am afraid he will kill me in the name of honour or force me to marry someone I don't know and I don't love and live a life of hell.
25.I seek Protection from the Australian Government.
The applicant’s migration agent provided a submission to the Department following the interview. The submission deals with various contradictions and inconsistencies noted by the delegate in the interview. This includes comments by the delegate that a search of the applicant’s [social media] details reveals quite a good relationship between the applicant’s brother and father at the time that the applicant had indicated that they were not in contact.
A response is provided by the applicant indicating that her family is happy to forgive her and will not hurt her on the condition that she separates from her partner [Mr B], but that she is not willing to separate from him. It is submitted that there is a real chance of a threat to the applicant and she has no intention to separate from [Mr B] and is pregnant with [Mr B]’s child.
It is submitted that after the birth of the child, [Mr B] will not be able to return to Nepal with the applicant and that he will not permit his child to leave for Nepal. [Mr B] will use all of his power to keep the applicant in Australia. The Australian Government favours the best interests of the child.
Independent information
The 2019 DFAT report on Nepal provides the following information:
Women
[3.61] The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence.
[3.62] The World Economic Forum’s Global Gender Gap Report 2017, an index that measures gender-based gaps in accessing resources and opportunities ranked Nepal 111 out of 144 countries.
[3.63] The practice of ‘chaupadi’, in which women are expelled from their homes during menstruation and sometimes after childbirth, persists, despite being outlawed in 2005 and prohibited in the 2017 criminal code. The practice sees menstruating women, particularly in rural western parts of the country, affected by ‘untouchability’. These women will live in sheds that are otherwise used by cattle or specially designed for this purpose as ‘menstruation sheds’ where they may be exposed to extreme temperatures and wild animals including venomous snakes. During this time they are not allowed to access green vegetables, fruit, other plants or milk and have limited access to water. Women are expected to engage in outdoor manual labour during this time. These conditions may be life threatening. Chaupadi may be known by different names including chhue, bahirhunu, chaukulla or chaukudi, depending on the district. While mostly associated with rural areas, particularly in the west of the country, taboos about menstruation can be found across the country, including in urban areas and among women who remain displaced by the 2015 earthquake and living in temporary shelters.
[3.64] Nepali women and girls across society, regardless of their economic, caste or ethnic status, are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking. Nepal’s laws contain a narrow definition of rape and have a 180-day limitation period for filing complaints. Penalties for marital rape are low and the crime is rarely reported. The 2017 criminal code set new, higher gaol sentences for rape, however DFAT is not aware of whether this provides an effective deterrent. Police frequently fail to register complaints or investigate and prosecute rape cases, and often divert cases to settlement though informal justice mechanisms, particularly in rural areas.
[3.65] Reports of sexual assault to police are increasing as awareness of the criminal nature of that act and the police response increases. Most rapists are close family members and women from low socio-economic communities are particularly vulnerable.
[3.66] According to the 2018 statistical update to the United Nation’s Development Fund’s Human Development Report, 25 per cent of women have experienced intimate partner violence in Nepal. Domestic violence shelters do exist in small numbers in some districts. They do not provide long-term solutions, often limited to 45 days of residence, and women who temporarily live in shelters are often forced to return back to their violent domestic situation due to a lack of alternative options. Many women lack financial independence and are reluctant to seek help in situations of violence because of the risk to their security and livelihood.
[3.67] The 2009 Domestic Violence Act provides for monetary compensation and psychological treatment for victims, but authorities generally do not prosecute domestic violence cases. The legislation has a reconciliation and mediation approach and compensation must be pursued through the courts.
[3.68] Sexual harassment is a commonly reported problem. The practice is banned, but women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
[3.69] The mistreatment and killing of women for allegedly practising witchcraft is still prevalent in Nepal. Allegations of witchcraft most often relate to the onset of sickness or death amongst people and animals. Diseases spread through epidemics are also believed to be related to black magic. Victims are often beaten and forced to consume human excrement. Victims are usually poorly educated, economically vulnerable, from low-castes with little support around them. Widows are particularly vulnerable. Women do not often report cases because of a fear of being abandoned by their families and ostracised from their communities. The Anti-Witchcraft Act 2015 provides for jail sentences of 5 to 10 years and fines of up to AUD$1,400 for those convicted of maltreatment of anyone on accusations of witchery.
[3.70] Nepali police have set up special women’s cells in police stations that are staffed by female police officers to facilitate the reporting of crime by women in all districts. NGOs report that many of these cells are not fully operational, but that the situation is improving and that the police have continued to resource and improve these services.
[3.71] Nepali women rarely receive the same educational, employment and economic opportunities as men. Girls in particular are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable. While a widowed woman is legally entitled to her late husband’s estate, many widows are unaware of their rights or unable to enforce them due to traditional attitudes and weak legal protections.
[3.72] Part 2 of the 2015 Constitution has introduced positive changes to the citizenship rights of women. Children’s citizenship can now be conferred through a mother or father, whereas in the past citizenship had to be attested to by a husband or father.
[3.73] Current laws allow foreign women married to Nepali men to immediately obtain Nepali citizenship while foreign men married to Nepali women can only become a naturalised Nepali after domiciling permanently in Nepal for fifteen years. These men also face other restrictions including restrictions on employment and restrictions on the length of visas that they are able to obtain. Legislation stemming from the constitutional changes has not been finalised. The United States 2015 Human Rights Report for Nepal noted the ongoing difficulties faced by people whose citizenship was based on naturalization (rather than descent). However, endorsement from a husband is required for citizenship by descent for women, which this has been known to be refused by husbands (or their families, in the case of widowed women), for example in property disputes; a non-citizen cannot own property.
[3.74] Women’s NGOs report that it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims.
[3.75] DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.[1]
[1] DFAT, Country Information Report – Nepal, 1 March 2019, para [3.61]–[3.75].
Hearing, credibility, findings, and assessment

The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly her claims will be assessed against Nepal.
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, 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 or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal hearing is the key part of the process for protection to explore and test the claims made by the applicant. In light of a number of credibility issues for the Tribunal, on the material before it and given an inability to ask the applicant about those issues in a hearing, this creates significant difficulties for the Tribunal in being satisfied as to any of the applicant’s substantive claims.
For example, the Tribunal would have wished to have put to the applicant the following information from her [social media] page on the Departmental file as at 2016:
·[social media] post by the applicant’s brother [Mr C] from 10 May 2016 which tags the applicant.
·[social media] post by the applicant's brother [Mr C] from 25 October 2016 which tags the applicant.
·[social media] post by the applicant’s brother [Mr C] on 10 May 2016 and 5 May 2016 which the applicant has commented on; for example in the post on 10 May 2016 the applicant posts ‘I miss you all’.
·The applicant’s father has two profiles on [social media] and the applicant is friends with both profiles.
·Photo posted by [name deleted], the applicant’s father, on 11 January 2016, 8 August 2016 and 10 September 2015 which the applicant has liked.
Further information that the Tribunal would have put to the applicant was evidence from the interview with the delegate that she accepted a friend request from her father during the period in which she claims to have had no contact with her father and that he had made significant threats to harm her.
All of this information is relevant because it is inconsistent with the applicant’s evidence at the time of the interview with the delegate in November 2016 that she had been estranged from her father and brother from late 2015 and did not have any contact with them.
This information on its face undermines the credibility of the applicant’s claims that her father and brother in Nepal have taken an extreme view to the applicant being in a relationship with a person who they do not approve of and/or the applicant’s failure to have proceeded in an arranged marriage.
Further, the failure by the applicant to attend the hearing does not allow any exploration of the situation for the applicant as it has developed in the more than four years since the delegate’s consideration in 2016, including in terms of the status of the relationship of the applicant with [Mr B], the current attitude of her family in Nepal as to the relationship, or their current attitude regarding the applicant not going through with the arranged marriage.
The Tribunal would also have wished to explore with the applicant her timing of the application for the protection visa only after seeking a merits review and then Ministerial intervention of the refusal of her partner visa. This timing could suggest that the application for the protection visa is a last attempt to seek a means to stay in Australia rather than demonstrating genuine claims for protection.
On the evidence before it, the Tribunal is unable to be satisfied as to key substantive claims by the applicant. The Tribunal is not satisfied that the applicant is or has been in relationships in Australia with an individual or individuals which are currently so adversely disapproved of by the applicant’s father and brother in Nepal, or any other family members or individuals, such that the applicant would face a real chance of serious or significant harm from them as a result of either a current or past relationship. The Tribunal is also not satisfied that there is currently such an adverse reaction by her family due to the applicant not proceeding with an arranged marriage that the applicant would face a real chance of serious or significant harm from her family.
On the Departmental file is a non-disclosure certificate issued pursuant to s.438 of the Act. This relates to [social media] information sourced by the Department relating to the applicant on the basis that it relates to internal deliberations of the Department. The certificate indicates that the key basis on which the non-disclosure certificate has been issued is to not disclose the [social media] profile name used by the Department.
The Tribunal is not satisfied that internal deliberations by the Department constitute a legitimate public interest immunity ground for non-disclosure. Other than to the extent that the non-disclosure certificate prevents disclosure of the profile name used by the Department the Tribunal does not consider that the certificate is valid. Details of the profile name used by the Department to source the [social media] information is not germane to the applicant’s claims or the findings of the Tribunal.
Given the Tribunal’s findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criteria reason in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk of her suffering significant harm.
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.
David McCulloch
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.
…

[2021] AATA 3468

7 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction