1702619 (Refugee)

1702619 (Refugee) [2020] AATA 5606 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1702619

COUNTRY OF REFERENCE: Nepal
MEMBER:Catherine Carney-Orsborn
DATE:16 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2020 at 10:56am
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – Communist Party member – fear of attacks by Maoists – extortion – attacks by police – kidnapping – return visits to Nepal – relocation to India – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 24 January 2017 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, first arrived in Australia [in] October 2016 as the holder of [a temporary] visa.
The applicant applied to the Department of Home Affairs (the Department) for the visa on 2 November 2016. On 24 January 2017, the delegate refused to grant the visa on the basis that the applicant has effective statutory protection and the right to reside in India, due to the Treaty of Peace and Friendship between India and Nepal. The delegate made no finding as to whether the applicant has a well-founded fear of persecution or is at real risk of suffering significant harm in Nepal. The applicant applied to the Tribunal for review of the decision on 14 February 2017.
The issues that arise on review are whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion.
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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, a copy of the applicant’s passport, and a copy of the delegate’s decision record. The Tribunal file contains the applicant’s school leaving certificate results, a school transfer certificate, a character certificate, various untranslated Nepalese documents, and a copy of the delegate’s decision record.
The applicant claims that he will be persecuted by [Mr A] and his Maoist associates, who have demanded money from the applicant.
The following information is provided by the applicant in his application for protection forms.
The applicant was born on [date] in [his home town in] Nepal. The applicant has a work visa for [Country 1] which was valid until 2018. The applicant is a Hindu of Chetri ethnicity, who speaks, reads, and writes Nepalese and limited English. The applicant married [in] September 2003 in [a named town]. The applicant’s wife and [children] reside in Nepal, and the applicant is in contact with his wife by phone twice a week.
The applicant states that he travelled to and from Nepal and [Country 1], and from [Country 1] to various other countries. The applicant visited [Country 2] [in] May 2016, then [Country 3] on [a day in] May 2016, then [Country 2] [in] June 2016, then went on a business trip to [Country 4] [in] July 2016, then visited [Country 3] from [in] August 2016, then Nepal from [in] 21 September 2016, and then [Country 1] [in] September 2016. The applicant lists no addresses and states that he will provide them later.
The applicant attended primary and secondary school from [year], and graduated from [a named] School, [in a named town], Nepal in [year]. The applicant lists no employment, and states that his occupation is ‘businessman.’
The applicant claims that he experienced physical and mental harm on various occasions, from Maoists and police. The applicant claims that the Maoists and police will kill or physically harm him if he returns to Nepal. The applicant claims that he cannot relocate within Nepal, as Maoists and the police are all over the country.
According to the delegate’s decision record (a copy of which the applicant has provided to the Tribunal), the applicant provided the following claims at the interview held on 23 January 2017. The applicant’s deceased father was a member of the Nepal Communist Party, and the applicant joined the party when he was [age] and is still related to the party. The applicant’s wife is a life member and takes on responsibilities on the applicant’s behalf.
The applicant’s father sold some land in 2001 in order to send the applicant abroad. The buyer paid a deposit of [amount] rupees with the understanding that the balance would be paid later, but the buyer changed his mind. The applicant’s father had already used the money and offered the buyer a piece of remote land as compensation. In 2003, a man called [Mr A], known by Maoists as [Alias A], and other Maoists appeared and threatened the applicant and his father, and the applicant’s father paid them [amount] rupees. The applicant’s father reported the matter to the police, but they said it was a private issue and the parties should negotiate. The applicant’s father died in 2009 or 2010 as a result of the stress.
The applicant returned to Nepal from [Country 1] in 2013 and was kidnapped by [Mr A’s] followers, and taken to a remote location and was asked to pay [amount] rupees. The applicant said he would pay them and agreed to meet four months later. The applicant returned to [Country 1] and did not go to Nepal again until September 2016.
The applicant provided oral evidence to the Tribunal on 8 December 2020. A summary of the evidence is as follows. The applicant had the assistance of a Nepali interpreter.
The Tribunal explained the process of the hearing and that it was the applicant’s opportunity to provide evidence and arguments. The Tribunal explained that the Tribunal was not bound by the decision of the Department and was considering whether he was entitled to a protection visa. The Tribunal went through with the applicant the definition of refugee and complementary protection. The Tribunal explained it was important he was truthful and provided detail of his claims. The applicant indicated he had no difficulty understanding the interpreter.
The applicant provided some background to the Tribunal. He said he had a mother, wife, [and specified family members] in Nepal. He has no relatives in Australia. He is currently working in a [business] in Australia. He has been working there for three years. He regularly speaks to his family. The last time he visited Nepal and his family was in September 2016. He then returned to [Country 1].
He stated that he had an Uncle who used to live in India. He also had a brother who lived there temporarily. His younger brother was now back in Nepal.
The Tribunal asked the applicant to go through why he felt he could not return to Nepal. He stated that before he had given an interview to the Department and he had submitted documents. He said that in that documents there was a land related transaction and that was the issue preventing him from returning to Nepal.
The Tribunal said that he had provided documents to the Tribunal however some were untranslated. He responded with words to the effect that he did not know he had to translate them. The Tribunal pointed out that he had sent an email to the Tribunal stating that he would send translated copies. He never did. He then agreed he did not.
The Tribunal then asked him to explain the relevance of the documents. The Tribunal stated that among the documents were his educational results and school certificates. There were also other documents. He said the documents related to a land transaction.
The Tribunal asked about the land transaction. He said words to the effect that Maoists used the land dispute to abduct his father and get a ransom. The Tribunal asked if he was saying his father was abducted. He responded that there was a land transaction going on and after a dispute the Maoists got involved. He was in [Country 1] and he came back to Nepal. His father informed him of what was going on.
He said the main issue was the quarrel he had with the Maoists, he claims they then kidnapped him for two to three days in Kathmandu and tortured him. A document was prepared, and [amount] lakhs was paid. He claims that after that he left Nepal.
He said he does not want to continue with the quarrel. He does not want the rivalry to continue and he does not want the issue to affect his children. He claims he just wants to end whatever happened to him and his father.
He claims he wants to stay away as he does not want the dispute to go on forever. The Tribunal pointed out it is four years since he was last in Nepal. The Tribunal asked for more detail about who the people are who are seeking to harm him and why they would still be wanting to harm him after such a long time.
The applicant then referred to persons who prepared the land document with his father, he claims they did it in an illegal manner. He claims he went to have a discussion with them, and he asked them why a third party was involved instead of just the buyer and seller. He claims they took his father and prepared a document forcefully.
He continued that a man came to buy the land and his family decided to sell the land however his family were betrayed when the buyer would not proceed. They provided the deposit and told us to pay the amount and do registration. They then said they cannot take the land. He claims that by the time they said they cannot buy the land his father had invested the money and according to Nepali law they had to return the money.
He claims there had been an agreement between the seller and buyer.
He claims his family had allowed them to have access to the land and allowed them to use the land for different purposes. He claims that his family thought everything was sorted out but there was the insurgency in that area created by the Maoists, and they knew the leader in that area who was called [Alias A]. He claims a dispute started and his father was tortured. He claims the family home was threatened and they suffered mental torture. The Tribunal asked when all this happened.
He responded with words to the effect that it happened after he came back from [Country 1]. He stated this happened in 2010 or 2011. He claims that when he decided to spend time in Kathmandu, they tortured him and prepared documents and took him to [Village 1]. He again stated that it was all related to a land issue and he was asked to pay the money back. He claims he was tortured and kidnapped in 2010/2011.
The Tribunal clarified with the applicant that he was saying he was kidnapped, forcefully made to sign a document and pay back [amount] lakhs. He claims this happened in 2011.
The Tribunal again asked for clarification on what the applicant’s fears were. He responded that the main issue was a dispute over the land and illegal activity on the other side. The Tribunal asked how this was related to the definition of the convention it had earlier read out to him. He responded it related to mental torture and abducting a person.
The Tribunal pointed out that he had returned to Nepal in 2016 and nothing had happened to him. The Tribunal said this could indicate he was safe to return. He responded that he was not communicating with anyone and while he was there, he went underground. He did not walk around freely and came in on a direct flight at night.
The Tribunal asked the applicant to explain why his family are not targeted in Nepal. He responded that the main dispute is with him and they will use people to do harm to him. The Tribunal asked if they were so intent on revenge why his family would not be in danger. He again responded that the dispute was with him.
The Tribunal pointed out that there is a discrepancy in his story as, in his written statement he said the kidnapping happened in 2013, but at hearing he just said 2011. He responded that he did not know the exact date and he was just giving a timeline.
The Tribunal asked why he could not reside in India. The Tribunal discussed the peace treaty and the fact his brother lived there for some time. He said he would not be safe in India as the same incident can happen in India and people would be used to harm him.
The Tribunal again said he could relocate as many Nepalis had to Delhi or Mumbai. He responded he would never feel safe.
The Tribunal asked for more details. He responded he did not want his children involved in his father’s dispute. The Tribunal pointed out that earlier he had said they are not targeted or involved.
He responded with words to the effect that he did not want his children to know what happened and he stayed overseas. The Tribunal asked why he could not live in India or [Country 1]. He responded that he will be harmed in India and he resided in [Country 1] for 10-12 years but will not get a new visa extension.
The Tribunal asked for more information on who he was fearful of and he responded the leader of the Maoists. He said this was because he had a dispute with them.
The Tribunal pointed out that in his written statement he claims that his father was a member of the communist party and the Maoists are communist.
He responded there are two sorts of communists, his father was a party member and they are related to the democratic communists, but the Maoists were a terrorist group.
The Tribunal then discussed the country information in relation to Maoists as set out below.
The Tribunal asked if there was anything else the applicant wanted the Tribunal to consider.
The applicant said he wants protection in Australia as the dispute will be passed on to generations and will end unpleasantly.
The Tribunal then asked for some more information about his son. He said his son is at school and lives with his mother. The applicant’s mother lives nearby, and they take care of her. His brother lives near the hometown in the same city and has started a [business].
The Tribunal again queried why, if the dispute was so dangerous and ongoing, his brother was not also targeted. He responded that he was the elder in the family and his brother was small and did not have capacity to get involved in dispute.
COUNTRY INFORMATION
The Department of Foreign Affairs and Trade’s Country Information Report – Nepal, 1 March 2019, provides the following information on Maoists in Nepal:
Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
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 face no greater threat of violence than other participants.[1]
[1] DFAT, Country Information Report – Nepal, 1 March 2019, p. 19, paras [3.42] – [3.45].
The DFAT Report provides the following information on police in Nepal:
Nepal Police are responsible for enforcing law and order across the country. The separate Armed Police Force is responsible for combating terrorism, providing security during riots and public disturbances, assisting in natural disasters, and protecting vital infrastructure, public officials, and borders.
Police effectiveness is limited by a lack of resources, corruption, nepotism and a culture of impunity, particularly among low-level officers. Nepali police agencies are hindered by a lack of adequate transportation, training, and equipment. Many crimes in rural areas occur with inadequate police intervention or follow-up.
Chief District Officers (CDOs) hold wide discretionary powers. CDOs have authority over all government offices in their districts, with the exception of courts and defence-related matters. CDOs supervise and issue orders to the police to maintain law and order and ‘tranquillity’ in districts. As such, they are empowered to prevent and disperse gatherings, and to approve police detention of suspects, without judicial review.
CDOs have a role in preventive detentions where a person is deemed to pose a threat to the sovereignty, integrity, or law and order of the country. The Public Security Act 1989 allows preventive detention of up to 90 days to prevent someone from carrying out a certain act or acts that may affect ‘sovereignty, territorial integrity or public tranquillity (peace) and order’. The period can be extended to up to 90 days on approval by the Home Ministry and by a further 12 months by the Home Ministry upon recommendation of an advisory committee. The Act requires prompt notification to the detainee’s next of kin.
Nepal’s security forces (mainly police) were heavily involved in responding to the Terai protests in late 2017 and police reportedly opened fire on civilians in some instances. At least 45 deaths, both civilians and police, have been reported.[2]
[2] DFAT, Country Information Report – Nepal, 1 March 2019, pp. 29 – 30, paras [5.6] – [5.10].
Nationality

The applicant has provided a passport from Nepal. The Tribunal accepts, on the basis of the passport, and in the absence of any other evidence to the contrary, that the applicant is a citizen of Nepal. The Tribunal also accepts that the applicant is not a citizen of any other country and has assessed his claims against Nepal as his country of nationality.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:
The Tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.[3]
[3] Administrative Appeals Tribunal – Migration and Refugee Division, Guidelines on the Assessment of Credbility, p. 4, para [12], (accessed 14 December 2020)
Ultimately, after considering all the evidence, the Tribunal is not satisfied that key elements of the applicant’s claims are credible. The reasons why the Tribunal has reached this conclusion are set out in detail below.
The applicant’s evidence was disjointed and lacked any convincing or persuasive detail or evidence. The applicant’s claim appears to be that his father was involved in a land transaction in Nepal that was not conducted in a proper manner.
He claims that his father took a deposit for land and when the other party decided they could not proceed; the father was unable to repay the deposit. He claims that the fear arose when the Maoists became involved in the dispute.
The applicant claims that when the Maoist leader was involved his father and then himself were kidnapped and forced to pay an amount.
He claims that this amount was paid.
The Tribunal accepts that there may have been some kind of land transaction that failed and his family paid compensation. The Tribunal does not accept, for the reasons set out below, that the failure of a land transaction alone comes within the criteria for the grant of a protection visa or complementary protection.
The Tribunal does not accept that Maoists became involved and kidnapped and tortured the applicant or his father.
In relation to the kidnapping he could not remember the year when he claimed this terrible event took place. The Tribunal gave the applicant ample opportunity to provide more detail and evidence. He was unable to do so and when queried why he gave different years, he responded that he did not remember. The Tribunal can accept that there may be some flaws in memory after a traumatic event but would expect some detail could be provided and certainly the year.
The Tribunal provided many opportunities for the applicant to expand on his claims but he was unable to do so. He provided scant detail in his application for protection and at hearing appeared unable to respond to simple questions or concerns such as why his brother would be able to live in the same area and not suffer any of the vendetta and revenge he claims he would be subjected, due to their father’s failed land transaction, if he returned to Nepal or re-located to India.
When the Tribunal queried how the applicant was able to return to Nepal in 2016 visit his hometown and family and then return to Australia without incident, he simply responded he did not walk on the street and flew in at night. The Tribunal does not accept this as a convincing explanation of why he was able to return to the area he claims there are bitter enemies waiting to hunt him down and torture him, especially when he claims these enemies are so intent on inflicting severe harm that they would hunt him down in India and employ others to harm him.
In the interview with the delegate as noted in the delegate’s decision record, the applicant claimed he was first threatened in 2003. Information he provided indicates he was able to live in Nepal, marry and continue his business activities as well as travel extensively between Nepal and other countries from that time. In his application for protection he listed extensive travel in 2016 between several countries and Nepal. The Tribunal does not accept that he was in such fear of serious harm as he was able to live and travel between Nepal and other countries freely. The Tribunal does not accept he was at risk of serious harm in Nepal as there would have been ample opportunity to cause serious harm to him while he was in Nepal.
When queried why his family could live in peace, go to school, run a [business] and lead a safe life he responded that he did not want them involved.
The Tribunal does not accept this explanation since if, as he claims, he was dealing with violent terrorists who had no respect for law and stooped to torture and kidnapping, they would not be leaving his younger brother unmolested. When this was put to the applicant, he claimed that his brother was too young to be bothered and he was the elder.
The Tribunal does not accept this as his brother resided in India and is now running a [business] near his hometown. His brother is an adult.
The Tribunal does not accept that if such terrorists were so bent on revenge due to a land transaction his father was involved in, they would leave his family unmolested. They would know he was residing and working overseas and could harass or threaten his family.
His evidence is that his family are safe in Nepal.
The Tribunal is not satisfied the applicant is at risk of serious harm from Maoists or other criminal elements in Nepal.
The applicant in his written claims stated that his family are members of the Communist Party. He claims that his wife is still a life-time member of the communist party and takes on responsibility on behalf of the applicant. The Tribunal gave the applicant an opportunity at the hearing to respond to queries about his family being members of the communist party. He indicated that the communist party is different to the Maoists who are terrorists however he did not indicate that he had any fear due to his, his family or his wife being a life-time member and acting on his behalf. On the evidence before it the Tribunal is not satisfied that the there is a real chance the applicant is at risk of serious harm due to being a member or associated with his family who are members of the Communist Party.
The Tribunal has considered the independent country information set out above and is not satisfied that there is a real chance the applicant is at risk of serious harm due to any failed land transaction or disgruntled parties involved in a land dispute. Accordingly, it is not satisfied the applicant genuinely fears serious harm if he returns to Nepal in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act relating to all areas of Nepal.
Considered overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he goes to Nepal. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes to Nepal. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
The applicant meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to a receiving country; there is a real risk that he will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). Accordingly the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations 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.
Catherine Carney-Orsborn
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 5606

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