1703537 (Refugee)

1703537 (Refugee) [2019] AATA 6339 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703537
COUNTRY OF REFERENCE:                  Netherlands
MEMBER:Nicole Burns
DATE:20 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 August 2019 at 9:54am
CATCHWORDS
REFUGEE – protection visa – Netherlands – race – Arab – particular social group – foreigner – level of discrimination in the past – employment – access to medical service – degree of hardship – length of time away – language difficulties – lack of family support – does not amount to serious harm – unique and exceptional circumstance – serious harm and hardship to an Australian family unit – primary carer for ailing and elderly parents – emotional impact on family members – failure to satisfy PIC 4020 in previous visa application – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are a [age]-year-old woman, her [age]-year-old husband, their two daughters, aged [age] and [age], and their son, aged [age]. They are citizens of the Netherlands who entered Australia [in] July 2009 on Electronic Travel Authority (ETA) visas. They applied for the protection visas on 26 September 2016, after the first named applicant’s application for a [permanent visa] was refused (and affirmed by the Tribunal, differently constituted, [in] September 2015[1]). They seek to invoke Australia's protection obligations so that they do not have to return to the Netherlands, where they claim to fear discrimination and serious harm as ‘foreigners’. On 6 February 2017 the delegate refused to grant the visas on the basis that he was not satisfied they were persons to whom Australia owed protection.
[1] AAT No.[Number]
The issue in this case is whether the applicants meet any of the alternative criteria in s.36(2)(a),(aa), (b) or (c) of the Act, that is whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or as a member of the same family unit of such a person. A summary of the relevant law appears at Attachment A and extracts of the legislation are at Attachment B.
The applicants appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal also heard oral evidence from the first named applicant’s mother, [and siblings]. The Tribunal hearing was assisted with an interpreter in the Arabic and English languages.
The applicants were represented in their review application by their migration agent. She attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The first and second named applicants were born in [Country 1] and subsequently acquired Dutch citizenship. Their children were all born in the Netherlands. The bio data pages of the applicants’ passports from the Netherlands have been provided to the Department. The delegate did not indicate any concerns about the applicants’ claimed nationality (and identity). The Tribunal accepts the applicants are nationals of the Netherlands – their receiving country - and has assessed their protection claims accordingly.
Background, claims and evidence
The first named applicant (hereafter the applicant) claims to be seen as a foreigner and fears discrimination and persecution in the Netherlands as a result. The second, third, fourth and fifth named applicants have relied on the first named applicant’s case, as members of her family unit. However, the Tribunal notes at hearing the second named applicant spoke about his concerns if he has to return to the Netherlands, as well as his experiences as a ‘foreigner’ there in the past (addressed below (elsewhere)).
The applicant set out her claims initially in a statutory declaration dated 27 September 2016 that accompanied her protection visa application. Her main points in that declaration are summarised where relevant, as follows:
·She lived in [Country 1] for the first [number of] years of her life before fleeing, due to the war that commenced in the early 1990s, to the Netherlands.
·She married in the Netherlands and had three children. However, she missed her family, in particular her parents. In 2006 she travelled to [Country 1] – along with her husband and two children – in an attempt to find her family. However, they were unsuccessful.
·In 2009 the applicant was able to locate her family in Australia, via her husband’s church contacts. They moved immediately to Australia (her husband returned to the Netherlands later to finalise matters, such as selling their car).
·She has no family in the Netherlands and felt isolated and depressed there. Due to their restricted immigration practices she was forced to live in a rural area where they were recognised as foreigners and discriminated against. She has not been able to get work and suffered the hatred against immigrants in general. They were not welcomed.
·They are second class citizens in the Netherlands. No doctor would write a referral letter for her daughter ([the fourth-named applicant]) to attend hospital when she was sick; this was only done after about three visits.
On review, the applicant provided to the Tribunal a statutory declaration dated 12 August 2019 in which she sets out her background, family composition and current circumstances. She confirms that although they are citizens of the Netherlands, she and her husband found it extremely difficult to settle there (and integrate) given the culture was so different to their own and they had no family support. She states, among other things, that: they have nothing to return to in the Netherlands; her children have spent their formative years in Australia; they do not speak Dutch; and they would be faced with significant hardship trying to re-establish their lives in the Netherlands.
At the Tribunal hearing the applicant said she was born in [Country 1] but left there around 1993 due to the conflict; she arrived in the Netherlands around 1994 or 1995 and initially stayed for around a year and a half in a refugee camp before being relocated to assigned housing in [City 1], eastern Netherlands. She met her husband in the refugee camp and they married in 1999. She worked for about a month with the government there, but no longer than that, given the poor mental state she was in having fled her country, without her family. Her husband worked in a [factory] but stopped after a year due to his eyes becoming affected by chemicals in the factory. They mainly supported themselves financially through government welfare during their time in the Netherlands. In around [year] they moved with their two daughters to [City 2] – also in eastern Netherlands - where their son was born. The applicant’s daughters attended primary school in the Netherlands, but have since forgotten Dutch, having been in Australia for 10 years. Her son never learnt Dutch as he was [age] when they came to Australia in 2009.
The applicant told the Tribunal that all her family members are in Australia, except for some cousins in the Netherlands, to whom she is not particularly close. When asked what problems she experienced in the Netherlands as a foreigner, or perceived foreigner, the applicant said her main problem was that her family were not there. When asked if she was discriminated against in any way, the applicant said it was through the way the community looked at them and treated them. She gave an example where once her daughter – who was [age] at the time - was very unwell with a high fever and required a referral from the GP to go to hospital, however, initially the GP refused. They had to fight before he agreed and they took her to hospital. When asked why, specifically, the GP refused to issue a referral for her daughter, the applicant said she does not know why and noted it was not easy to get referrals. The Tribunal accepts that in the past a doctor in the Netherlands initially refused to refer the applicant’s daughter (unwell at the time) to hospital, and only did so after her parents insisted. However, it is unclear the reasons why the doctor was initially reluctant to make the referral and the Tribunal does not accept, on the limited evidence before it, that the applicant’s daughter was denied medical treatment because she, or her parents, were perceived to be foreigners.
At hearing the Tribunal asked the applicant what she meant in her statutory declaration provided to the Department that she was forced to live in a rural area in the Netherlands, where they were recognised as foreigners and discriminated against. She clarified that she was referring to when they were moved to assigned (government) housing in [City 1], but confirmed that they were free to live elsewhere in Netherlands.
In his oral evidence to the Tribunal, the second named applicant said he was treated as a foreigner when he worked in the factory in the Netherlands, by his fellow workers and supervisors. For example, if a machine broke, he was made to do work, whilst other workers stood around.
The applicant said, in her view, members of the Dutch community thought they were Arabs and therefore terrorists, assuming straight away that they were trouble makers.
The Tribunal accepts the applicants may have experienced a level of discrimination in the past, perceived as foreigners, in the Netherlands, including in the second named applicant’s case being expected to work more than his Dutch colleagues at times. However, such treatment does not constitute serious harm and the applicants have not indicated that they experienced serious harm or discrimination that amounts to serious harm including being denied employment or access to other services in the Netherlands because they were considered foreigners, Arabs, or for any other reason.
As discussed at hearing, whilst country information[2] indicates that there is racial, national and ethnic discrimination to some extent in the Netherlands, it does not indicate that such discrimination arises to the level of persecution. The latest US Department of State Report on the Human Rights situation in the Netherlands notes that, in the Netherlands, members of the Muslim community have faced frequent physical and verbal attacks[3], but the applicants are not Muslims. There is a possibility the applicants may be considered Muslims, however, taking into account the fact that they never experienced serious harm in the past as perceived foreigners, and the country information, which does not indicate that perceived foreigners are at risk of serious harm in the Netherlands, the Tribunal finds remote the chance that the applicants would face a real chance of serious harm on return to the Netherlands in the foreseeable future on the basis of their perceived ethnicity or nationality.
[2] See, for example, the United States Department of State, Country Reports on Human Rights Practices for 2018 - The Netherlands, March 13, 2019, pp.16 & 17,
[3] Ibid at p.17
The Tribunal has considered the applicant’s claim that they would face significant hardship trying to re-establish their lives in the Netherlands, including due to the length of time away, and loss of their ability to speak Dutch, and in the youngest two children’s cases, the disruption to their schooling, for example.
The Tribunal accepts their return is likely to be difficult, given the length of time away from the country, language difficulties, lack of extended family support there, and the emotional turmoil and potential mental health strains. However as Dutch citizens they would be entitled to the same resources and support as other Dutch citizens, including for welfare, access to schools and other services such as mental health services if needed. In addition, although the applicant and her husband’s work experience in the Netherlands and Australia has been limited (in Australia in large part they claim because of their lack of work rights attached to their visas), they do have some work experience and qualifications. In the applicant’s case, she gave evidence that she has undertaken a Certificate III in child care in Australia and she and her husband established their own child care business from home, which they operated for around a year (in or around 2016), whilst they had work rights. Given these considerations, the Tribunal finds the applicants do not face a well-founded fear of persecution on return to the Netherlands in the form of being unable to subsist (for example). Their fear of persecution for these reasons is not well founded.
For these reasons the Tribunal finds the applicants do not face a well-founded fear of persecution for any reason advanced as per s.5J(1) of the Act, and therefore they are not refugees within the meaning of s.5H(1).
Nor does the Tribunal accept that there are grounds for believing that, as a necessary and foreseeable consequence of being returned to the Netherlands, there is a real risk that the applicants will suffer significant harm from anyone as perceived foreigners, being unable to subsist, or for any other reason. The Tribunal is therefore not satisfied that the applicants meet the alternative provisions in s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
Ministerial intervention
The applicant has requested that the Tribunal refer her case to the Minister under s.417 of the Act, because of compelling and compassionate circumstances, among others. In particular, the fact that her entire immediate family members (and their families) reside in Australia, that is, her parents, and her nine siblings. In addition, the applicant is the primary carer of her parents who are old and have significant health problems and chronic needs, which has been supported by medical evidence provided to the Tribunal.
In a detailed written submission[4] provided to the Tribunal, the representative argues that there are unique and exceptional circumstances which warrant the referral of this case to the Minister for his personal consideration. These include as follows:
·All of the applicant’s (and her husband’s) family reside in Australia: that is her parents, [number of siblings] (one is believed to be deceased), who are all Australian citizens. They would be significantly (and detrimentally) affected if the applicant and her family were to leave Australia in a number of ways, detailed in the written and oral evidence provided by the applicant’s mother and siblings to the Tribunal.
·The applicant provides daily care and support to her elderly Australian citizen parents who require significant support due to their multiple physical and mental health conditions: in particular, her father, who is [age], and in addition to a range of health problems, has recently been discovered to have [Medical Condition 1]. She has provided intensive support to her parents for over four years. As such the applicant’s parents in particular would suffer extreme psychological and emotional anguish and distress if the applicant – their primary carer for a number of years – were to leave.
·The applicant’s siblings resident in Australia do not have the capacity to provide the level of care required to support the applicant’s parents. The reasons for this are detailed in the submission, and include due to their own work and family commitments as well as in some of their cases, their own health issues (for example the applicant’s elder sister [Ms A] was diagnosed with [Medical Condition 2] in 2015 and has undergone intensive [treatment]).
·The applicant’s children have spent their formative years in Australia, identify as Australians, are fluent in English and have never learnt or have forgotten Dutch, and will be at a significant disadvantage due to not being schooled in the Dutch education system and due to their lack of Dutch language skills to obtain gainful employment. They are worried and extremely anxious about how they will cope, how their parents will cope, and about being separated from their extended family members in Australia, to whom they are very close.
·Each family member is experiencing ongoing psychological anguish about their uncertain future, as are their Australian citizen relatives, fearful they may be separated from them. Recently the second named applicant has been diagnosed with ‘secondary mixed anxiety and depressive manifestation to adjustment disorder’ and is receiving psychological care.
[4] Dated 13 August 2019
To support her contentions, the representative has provided medical documents related to the applicant’s parents’ health status and needs and in relation to other family members where relevant, including about their mental health status and treatment. In addition, statutory declarations from the applicant’s mother, [and number of siblings] were provided to the Tribunal, attesting to their desire for their sister (and her family) to remain in Australia for their own sakes (and their children’s sakes) but in particular to continue to care for their parents who have grown dependent on her help. The applicant’s siblings claim they are otherwise busy with work and family responsibilities and in one sister’s case and one brother’s case their own health problems, including a sister with [Medical Condition 2], as mentioned.
A number of letters of support from friends and other community members were also provided to the Tribunal.
In her submission to the Tribunal, the representative acknowledges that the applicant has requested the Minister intervene in her case before, which was unsuccessful. She notes this was due, she understands (given she was not the applicant’s representative at the time) to the applicant’s failure to provide medical, psychological or other expert evidence regarding the impact of the applicant’s departure from Australia on her Australian citizen relatives. Also, the temporary visa option was not considered as there was no evidence that the applicant and her family could progress to a permanent visa on their own merits at the time. In contrast, the representative has now provided to the Tribunal extensive medical evidence pertaining to the applicant’s parents needs as well as evidence from her siblings (in the form of statutory declarations and their oral evidence to the Tribunal) that confirms the applicant’s role as the primary carer of their parents and their inability to provide the same level of care.
In her submission, the representative comprehensively sets out the reasons why the applicant meets the substantive visa requirements to be granted a Carer (Subclass 835) visa. She notes in this regard that a BUPA assessment of the applicant’s father’s impairment and requirement for daily assistance has been sought and that they will provide the assessment certificate to the Tribunal once available. At the Tribunal hearing the representative explained that there are likely to be delays because the applicant’s father was found to have [Medical Condition 1] recently, following his hospitalisation (and related MRI) a few days prior to the hearing due to a fall. The Tribunal indicated that it would not adjourn the review given the likely delays and the fact that the BUPA assessment with respect of the applicant’s father is not relevant to whether or not Australia owes the applicants protection. Nonetheless, the Tribunal indicated that the representative can submit the assessment results directly to the Department as part of the Ministerial intervention request (which she agreed to do).

Having regard to the Minister’s guidelines on ministerial powers[5] as well as the submissions and evidence before it, the Tribunal considers that the circumstances of this case warrant further investigation by the Department, with the view to then (possibly) refer the case to the Minister. The Tribunal considers the issues in this case fall within unique and exceptional circumstances as described in s.4 of the guidelines, in particular:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or permanent resident.
[5] Sections 351, 417 and 501, signed on 11 March 2016
In reaching this conclusion the Tribunal has had regard to the following considerations.
a.    All of the applicant’s family are resident in Australia and are Australian citizens, that is, her parents, [siblings] and numerous nieces and nephews. With the exception of one of the applicant’s brothers, who is estranged from the applicant and the rest of the family, they all appear to be very close, with intertwined, and in some respects co-dependent, lives. In addition to her carer role of her parents, evidence was given from a number of family members attesting to the other ways the applicant supports them, for example, by looking after her siblings (young) children at times. She also provided practical and emotional support to her older sister [Ms A] whilst she was undergoing [treatment]. Having regard to the evidence before it – including the oral evidence of many of her siblings and mother – the Tribunal is of the view (supported by advice from doctors, counsellors and social workers, for example) that the emotional impact on these family members if the applicants leave Australia will be significant and in her parents’ case, detrimental to their psychological and physical health.
b.    The applicant’s family was separated and dispersed suddenly in the nineties due to the conflict in [Country 1]. They originate from [City 3] – to this day a severely conflict affected area – and were persecuted in [Country 1] as Armenian Christians. It became apparent to the Tribunal that they do not want to be separated again, evident in the written and oral testimony of her family members to the Tribunal. The applicant’s youngest sister told the Tribunal that she was only [age] when her sister disappeared and they were reunited as adults and that she does not want to lose her again. The applicant’s family support at the current Tribunal hearing was in noticeable contrast to the time the applicant appeared before the Tribunal in 2015 with respect to the review of a decision to refuse to grant her a [permanent] visa. At the current hearing the applicant (and one of her sisters) explained that was because her lawyer at the time advised that witnesses were not required. The family was also preoccupied with having just found out about [Ms A]’s [diagnosis]. The Tribunal found the applicant (and her family members) credible witnesses at hearing and accepts this explanation as to why they failed to give evidence to the Tribunal in relation to the earlier case, in 2015.
c.    The applicant is the primary carer for her ailing and elderly parents who have complex physical and mental health needs. The medical evidence before the Tribunal indicates that her father is [age] and suffers from hypertension, osteoporosis, hyperuricemia, impaired vison, memory and mental decline and it has recently been discovered that he has [Medical Condition 1]. He has extremely limited mobility and limited cognitive function. The applicant’s mother, who is [age], has diabetes, hypertension, obesity and osteoarthrosis of her lower back and hip, among other problems. Both have mental health problems, including symptoms of post-traumatic stress disorder linked to traumatic events in their past and in some ways worsening as they age. The applicant gave evidence – which was corroborated by the oral and written evidence of her many of her siblings (and mother) - that she cares for her parents full time, helping out not only with the physical requirements such as cooking, cleaning, bathing and ensuring they take their medication (and taking them to medical appointments), but the emotional and psychological aspects through keeping them company and listening to them. Even though the applicant’s parents have many children and grandchildren in Australia, many of whom visit and help support them, the Tribunal accepts the applicant is their primary carer and has cared for them intensively for the past four years.
d.    The family has resided in Australia for 10 years, which is the majority of their children’s lives and a significant part of the applicant parents’ lives. The children have spent their formative years in Australia, and in the Australian education system. The Tribunal accepts the applicant’s family members either no longer speak Dutch, or very little, which whilst not impossible to relearn, would be difficult and place the children at a disadvantage when they re-enter the school system in the Netherlands (and in the eldest child’s case, university). They have no connections to the Netherlands and are very close to their extended family members here. In the children’s case they also have very close friends, some of whom have written to the Tribunal attesting to their ties and concerns at the prospect of them leaving. Other members of the Australian community have also expressed their desire to have the family stay through letters to the Tribunal, including neighbours, the children’s soccer coach, and fellow church members.
e.    Although the Tribunal was not satisfied that the applicants would face persecution (or significant harm) on return to the Netherlands for reasons outlined earlier, it considers their return there would be extremely difficult. The applicant parents would have limited work prospects, they have no extended family support, and they would also struggle, at least initially, with the language. In addition, the Tribunal is of the view that it would be distressing – particularly for the applicant – to be separated from her parents at their age and the rest of her family in Australia, whom she was forcibly separated from for over ten years in the past due to the war in [Country 1]. The Tribunal accepts the applicant’s evidence that in the Netherlands she and her husband barely worked, struggled with the language, were isolated, and experienced mental health issues. It accepts they never felt at home in the Netherlands, attributable in large part because they were away from extended family members.
For these reasons the Tribunal has decided to refer this case to the Minister.
In doing so the Tribunal is mindful that the applicant was found in the past not to have satisfied Public Interest Criteria (PIC) 4020, which is a fraud-related PIC, with respect to her application for a [permanent] visa. In her written submission to the Tribunal the representative notes the applicant’s application for [the permanent] visa was refused on the basis that the death certificate in relation to her sister ([Ms B]), was found not to have been registered in [Country 1] upon the Department seeking verification. According to the representative (and as contained in the applicant’s statutory declaration provided to the Tribunal) the applicant instructs that she and her family made enquiries in [Country 1] through a third party agent to gather information about [Ms B] and produced a death certificate and they relied on that document in good faith that it was genuine. However, it was considered a bogus document and PIC 4020 was enlivened. The Tribunal notes the applicant (and her family members) have consistently claimed that [Ms B] is missing, presumed deceased. At hearing the representative submitted that this would only be an issue if the applicant did not otherwise meet the Ministerial intervention guidelines. As discussed at hearing, this matter is not before the current Tribunal and has been finalised. What weight this concern will be given is ultimately up to the Minister and/or Department.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nicole Burns
Member

ATTACHMENT A - 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6339

20 August 2019

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