1700526 (Refugee)

1700526 (Refugee) [2020] AATA 707 (20 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700526
COUNTRY OF REFERENCE:                   Nepal
MEMBER:David McCulloch
DATE:20 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 January 2020 at 10:56am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – pro-Madhesi – claims previously detained and harmed by authorities – fears harm from former father-in-law who disapproved of marriage – ex-wife’s family members purportedly lodged false claims about applicant – marriage ended – delay in seeking protection – inconsistent evidence – credibility issues –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (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 15 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 23 May 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 15 January 2020. The applicant communicated with the Tribunal in English.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – Nepal, 1 March 2019, a copy of which was provided to the applicant at the hearing.
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.
Background and claims
The applicant was granted a TU-572 student visa offshore on 13 November 2007. The applicant then arrived in Australia [in] November 2007. The applicant was granted a further TU-572 student visa on 29 April 2009. The applicant was granted a TU-572 dependent visa on 21 October 2009. The applicant departed Australia [in] November 2009 and went to Nepal. The applicant returned to Australia [in] January 2010. The applicant was granted TU-573 dependent visas on 12 March 2010 and 27 August 2013. The applicant applied for a TU-573 independent visa on 20 March 2015, which was refused on 20 May 2015. The applicant applied for review of the decision, and the Tribunal affirmed the decision on 21 December 2015. The applicant applied for ministerial intervention, which was refused on 5 May 2016. The applicant applied for the protection visa on 23 May 2016. Prior to coming to Australia, the applicant studied in India from [December] 2004 until [June] 2006.
The following information is apparent from the application for protection forms. The applicant was born on [in] Kathmandu, Nepal. The applicant is a Hindu of Madhesi ethnicity, who speaks, reads, and writes English, Nepali, and Hindi. The applicant began a relationship [in] June 2006, married [in] August 2009, and divorced [in] March 2015 in Sydney. The applicant lists no relatives, but states that he speaks to his parents and siblings in Nepal by phone and Skype. The applicant lived in Kathmandu from birth until December 2004. The applicant lived in Noida, India from December 2004 until June 2006. The applicant returned to Kathmandu from June 2006 until November 2007.
The applicant completed an Advanced Diploma in [Subject 1] at [College 1], Australia from May 2008 until April 2009. The applicant enrolled in a Bachelor of [Subject 2] at [College 2], Australia in May 2015. The applicant worked as a [Occupation 1] and [Occupation 2] for [a number of] different companies in Australia from 2001 until the present.
In the application forms, the applicant claims that he is a member of the Madhesi community in Nepal. The applicant became interested in politics when he was young, and joined the Madhesi Mukti Morcha, and participated in political [activities]. Around 2005, the applicant participated in a political movement against the Nepalese government campaigning for Madhesi rights, and the applicant was arrested during a protest. The police tortured the applicant before letting him go. The applicant also fell in love with an upper caste girl, which was opposed by both of her parents. The applicant’s family wanted to dissuade the applicant from politics and avoid the police, and so forced the applicant to go overseas in 2007.
When the applicant returned to Nepal in December 2009, his father-in-law, a senior police officer, filed false cases against the applicant as he had married the officer’s daughter against his wishes. The applicant and his wife hid in several places and left Nepal in secret in February 2010. Due to family pressure, and fearing for his life, the applicant divorced his wife in 2015.
The applicant fears that he would be tortured and killed by the police or hooligans hired by the government, on the pretext that the applicant is a Madhesi activist. The applicant claims that the police will not protect him as they act according to the governing party’s wishes and because his former father-in-law can manipulate the police against the applicant.
The applicant claims that he cannot relocate in Nepal, as it is the government instigating police to file cases against the Madhesi community, and because his former father-in-law is a senior police officer.
Independent Information
The DFAT Country Information Report – Nepal, 1 March 2019 provides the following information on the Madhesi:
The Madhesi are a group of people of Indian origin that live in the Terai. Many have continuing strong socio-cultural and ethnic links across the border with India. The term ‘Madhesi’ refers specifically to non-tribal, caste Hindus of Indian origin that live in the Terai. Many Madhesis consider those living in the Terai who do not fit this definition (including Muslims, Tharus, Pahadis, and indigenous groups who predated Madhesi immigration) to be ‘foreigners’. Less than 50 per cent of the Terai population are Madhesi, and many people from other parts of Nepal have moved to the region seeking jobs.
Madhesis comprise around 20 per cent of Nepal's population but are underrepresented in politics, public service jobs, and the military. Hindi-speaking Indian Madhesis were historically denied citizenship certificates (and therefore also land and access to government benefits) under the Citizenship Act of 1964 and the 1990 Constitution owing to Nepali language requirements. The citizenship law was amended in 2006 to allow people born in Nepal before 1990 and those residing there permanently to acquire Nepali citizenship, but this law contained a short window period for Madhesis to claim citizenship that closed in November 2008.
Efforts by the government to introduce compulsory Nepali language in the region have been seen by some Madhesis as a further attempt to discriminate against them. Economic and political favouritism (by way of land allocations) towards the upper caste Pahadis (hill-dwelling Hindus) was introduced under the ‘Panchayat’ system (1962 – 1990, see Recent History). This, as well as allegations of economic exploitation of the resource-rich Madhes region, have exacerbated feelings of discrimination by the Madhesis resulting in decades of political activism and tension between Madhesis and members of other ethnic minorities living in the Terai region. The extent to which such sentiments are shared throughout the entire community is unclear.
A pro-Madhes autonomy group (the United Democratic Madhesi Front – UDMF) was formed in 2007. The group has signed two peace agreements with the Nepali government with the principal demand being the ‘liberation’ of the Terai region and the creation of a single autonomous unit called Madhes in a new federal system for Nepal. The group has also demanded greater representation in political, military and economic affairs, often at the exclusion of other ethnic groups such as the Tharu in the western regions of the Terai. Following a period of negotiations, some Madhesi aligned to political parties and participated in the 2017 election. .
DFAT assesses that Madhesis in the Terai experience moderate official discrimination because of on-going difficulties in obtaining citizenship, which impacts on their ability to access government services. The 2015 Constitution was amended in early 2016 partly in response to Madhesi demands around political representation. Violence in the region remains sporadic, as is evidenced by the protests of late 2015 and early 2016, when upwards of 40 people are reported to have been killed.
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.[1]
[1] DFAT, Country Information Report – Nepal, 1 March 2019, p.19 paras [3.38] – [3.45].
Hearing, credibility, findings, and assessment
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.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, the applicant has not been consistent in key claims as to the circumstances at the time the applicant returned to Nepal at the end of 2009.
The applicant indicated in the hearing that his father-in-law did not learn of his 2009 marriage to his daughter until 2012. The applicant also indicated that on his return visit to Nepal he was only in Nepal for one day upon arrival before travelling to India to the wedding of his [sibling]. The applicant indicated that he was in India for the entire period other than travelling briefly back through Nepal to return to Australia. The applicant indicated that his wife, who travelled with him from Australia, stayed in Nepal with her family. The applicant confirmed that her family at that point did not know about the marriage to the applicant. The applicant indicated in the hearing that he suffered no particular difficulties on his return visit to Nepal and then India at the end of 2009.
The Tribunal noted to the applicant that this evidence was significantly divergent with information provided in his written application form for the protection visa. The written claims indicate that at the point that the applicant returned to Nepal in 2009, his father-in-law knew of and had objected to the marriage. As a result, it is indicated the father-in-law had lodged false cases against the applicant.
The Tribunal noted to the applicant that this was inconsistent with evidence in the hearing that the applicant’s wife’s family did not know of the marriage at that point in time and the indication that the applicant suffered no problems on his return visit in 2009. The Tribunal also noted that claims that the applicant spent most of his visit in India, apart from his wife who stayed in Nepal, was inconsistent with written claims that he and his wife were in hiding from his wife’s family.
In response, the applicant indicated that his wife’s family may have known of the marriage in 2009. The applicant indicated that he was not sure. The applicant did not otherwise explain the various inconsistencies.
The Tribunal is not satisfied with the explanation that the applicant was unsure as to the date provided earlier in the hearing that his wife’s family had known of the marriage. The applicant was quite clear towards the beginning of the hearing that his wife’s family did not learn about the marriage until 2012. The applicant had further elaborated that his wife’s family had not learned of the relationship itself until six months before they learned about the marriage in 2012. The applicant confirmed in the hearing that at the point that he had returned to Nepal in 2009, his wife’s family had not known about the marriage.
This evidence initially provided by the applicant in the hearing is clear and does not suggest uncertainty or equivocation on behalf of the applicant. The Tribunal does not consider that the applicant is being truthful in later claiming in the hearing that he was uncertain as to the year his wife’s family learned about the marriage. As indicated, the applicant has not adequately explained the other inconsistencies.
The Tribunal takes these inconsistencies as adverse to the applicant’s credibility as to claims that he faces harm from his father-in-law and that his father in law has lodged false cases against the applicant. The inconsistencies are undermining of the applicant’s credibility generally.
Secondly, it is not plausible that the applicant would face harm from his former father-in-law when the marriage, which the father-in-law is claimed to have significantly objected to, is now at an end. The applicant confirmed in the hearing that he has divorced his former wife. The Tribunal put to the applicant that given that the relationship and marriage is at an end there would no longer be a risk of harm from his former father-in-law as a result of having objected to the relationship.
In response, the applicant maintained that his former father-in-law would still take steps to have him put in jail. The Tribunal does not accept this to be the case. The Tribunal considers that now that the relationship has ended it lacks plausibility that there would be a risk of harm from family members who previously objected to the relationship.

Thirdly, the applicant has not been consistent as to the number of times that he has been detained and harmed by authorities in Nepal. The applicant’s written claims refer to one incident in 2005 in which he was arrested and tortured by authorities when participating in a political protest. In contrast, in the Tribunal hearing the applicant indicated that he was arrested and physically harmed by authorities on two to three occasions. The Tribunal noted to the applicant the inconsistency. In response, the applicant could not explain why his original written claims refer to only one incident of detention and torture, yet in the hearing the applicant referred to arrest and torture on two to three.
Arrest and torture by authorities arising from political activity would be searing and impactful events. The Tribunal does not consider a person would be readily confused or uncertain as to being arrested and tortured on one occasion as opposed to two to three occasions.
The inconsistency on this issue is one factor that the Tribunal considers as adverse to the applicant’s credibility. It is considered cumulatively together with more significant matters.
Fourthly, the delay by the applicant in seeking the protection visa and the timing of the application when considered in the context of other visa applications is undermining of claims that the applicant faces a real chance of serious or significant harm for the reasons claimed.
The applicant indicated in the hearing that he had formed an ongoing fear in Nepal based on his political activities following the two to three occasions in 2005 and 2006 when he had been arrested and beaten in protests. The applicant indicated in the hearing that at the point that his father-in-law had learnt about the marriage in 2012 he became fearful of his situation in Nepal as a result of his father-in-law.
The Tribunal put to the applicant that, in the context of the applicant having been in Australia since November 2007, there was a very significant delay in applying for the protection visa in May 2016.
The Tribunal noted to the applicant in the hearing that his visa history and the timing of the application for the protection visa seemed more consistent with the application being a last attempt to stay in Australia rather than demonstrating genuine claims. This is particularly in the context of the applicant applying for the protection visa after: his application for a 573 student visa was refused on 20 May 2015; his subsequent application for a review to the Tribunal was unsuccessful; and his request for ministerial intervention was refused.
The Tribunal also put to the applicant information pursuant to the procedural requirements of s.424AA of the Act. This was information given to the Tribunal on 18 December 2015 in relation to the review of the refusal by the delegate to grant the applicant a 573 student visa. The Tribunal noted that in the relevant hearing the applicant maintained that he only intended to stay in Australia temporarily and provided no indication that he could not return to Nepal for the reasons now claimed.
In response to these various matters, the applicant indicated that he did not learn of the option of a protection visa until about 2010 and then prioritised his study and associated applications for visas above making an application for a protection visa. The applicant indicated that he would not be entitled to study if he made the application for the protection visa. At the point that the applicant appeared before the Tribunal in relation to the refusal of his student visa, the applicant was not focused on his concerns back in Nepal.
The Tribunal has noted these responses by the applicant. The Tribunal is not satisfied that a person who had a genuine fear of serious or significant harm in their home country would prioritise applications for temporary student visas over a visa which would result in permanent protection from serious or significant harm.
Considering the various responses, the Tribunal does not consider that the very significant delay in making the application for the protection visa in light of the time that the applicant has been in Australia is consistent with the applicant genuinely holding the fears claimed. The Tribunal considers that the timing of the application in the context of pursuing other visa and review options is more consistent with the current application being used to seek to extend residence rights in Australia rather than reflecting genuine claims.
Fifthly, independent information does not support the contention that the applicant would face a real chance of serious or significant harm in Nepal today, particularly in Kathmandu, as a result of participation in a pro-Madhesi political party. Further, the applicant has not seriously maintained that he faces harm in Nepal based on political activity.
The applicant indicated in the hearing that he would wish to continue to be involved in a pro-Madhesi political party on return to Nepal. After some discussion as to where the applicant would be likely to return to in Nepal, the applicant agreed that he would return to Kathmandu.
The Tribunal discussed with the applicant the DFAT information extracted in this decision concerning the overall political situation in Nepal, together with the situation outlined concerning the Madhesi. The Tribunal noted that the DFAT information indicates current relative political stability in Nepal and an ability to be safely involved in opposition politics. The assessed risk to widespread violence is low. The Tribunal noted the DFAT assessment that there can be sporadic violence in relation to Madhesi issues, but this concern is focused in the Terai region and the applicant would return to Kathmandu.
When the Tribunal discussed this independent evidence with the applicant in the hearing, the applicant appeared to agree that the current political and security situation in Nepal was not such that he would face harm based on his political involvement. The Tribunal sought to have the applicant confirm that he was not now claiming that he faces harm as a result of political involvement and the applicant indicated that he ‘guesses’ that he would not face harm.
The Tribunal considers these five credibility issues cumulatively. Considered together, they are significantly undermining of the applicant’s credibility and that he faces a real chance of serious or significant harm for the reasons claimed. The Tribunal is not satisfied that the applicant has been truthful in terms of core components of his claims.
The Tribunal is not satisfied that the applicant was arrested, detained or beaten on any occasion as a result of his activity in political protests or otherwise as a result of political activity for a pro-Madhesi party. The Tribunal is not satisfied that the father of the applicant’s ex-wife or any other members of her family have threatened the applicant with harm or caused false cases to be lodged against the applicant or that they have any ongoing desire to inflict harm on the applicant now that the relationship has ended. The Tribunal is not satisfied that false cases were lodged against the applicant on his return visit to Nepal with his wife in late 2009 or that the applicant and his wife went into hiding as a result of potential harm from his wife’s family.
Whilst the Tribunal is prepared to accept that the applicant was involved in a pro-Madhesi political party, the Tribunal is not satisfied that the applicant has suffered any serious or significant harm as a result of such activity. The Tribunal is prepared to accept that the applicant would wish to continue to be involved in similar political activity on return to Nepal.
In light of these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of having previously been detained and harmed by authorities for political involvement and activities in political protests. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of family members of his ex-wife having lodged false cases against the applicant, threatening the applicant or having any future intent to harm the applicant.
Given the independent information before the Tribunal as to the political situation in Nepal, the Tribunal is not satisfied that the applicant would face a real chance of serious or significant harm on return to Nepal should he, living in Kathmandu, be involved in a pro-Madhesi political party.
The Tribunal is therefore 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 reason set out in s.5J(1) of the Act. 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 him 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 criteria 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.
…

[2020] AATA 707

20 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction