1703827 (Refugee)

1703827 (Refugee) [2020] AATA 1438 (9 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703827
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Luke Hardy
DATE:9 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2020 at 12:59pm

CATCHWORDS
REFUGEE – Protection visa – Nepal– loan – fears harm from lender – delay in lodging protection visa application – inconsistent information – returned to Nepal in 2010 – fear of persecution not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 351, 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 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 17 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Ms [A], is a citizen of Nepal. According to the passport she has submitted, se first arrived in Australia [in] November 2008 on a student visa. She departed Australia for Nepal [in] August 2010 and re-entered Australia [in] September 2010. Over the next six years, she evidently applied successfully for further student visas until on 11 September 2013 an application was refused. This refusal was affirmed by the then Migration Review Tribunal (MRT) and Ms [A] sought judicial review of that decision in the Federal Circuit Court, without success. In March 2015, she sought Ministerial intervention on compassionate grounds under s.351 of the Act, also without success.
A year later, on 27 April 2016, Mr [A] lodged a protection visa application. She was interviewed by the Minister’s delegate wo refused to grant the visa on 17 February 2017.
Ms [A] presented oral evidence and arguments to the Tribunal in a telephone hearing of her claims on 8 April 2020.
The Tribunal hearing was facilitated by an interpreter in the Nepali-English medium.
There were some technical issues arising during the hearing that had to be dealt with on the spot, as it were. On a number of occasions I would ask a question of Ms [A] through the interpreter and both his translation of the question and her response, as well as, once or twice, his translation of the answer, became inaudible. The solution in real time was to await the passing of the technical issue, check that everyone was still on the line, repeat the question and note the reply. A number of adjournments and reconnections did not totally eradicate this issue but, having consulted with Ms [A] and her adviser throughout, I am satisfied that she had a genuine opportunity to speak to her claims and that all the facts I endeavoured to gather at the hearing were captured on the electronic record. Ms [A]’s adviser observed that there was some frustration, but said he was satisfied with how I handled the issue. Towards the end of the hearing, I twice asked both Ms [A] and the adviser if there was anything in this matter that they had not had an opportunity to raise and they said there was not.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether Ms [A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
Attached to her protection visa application form, Ms [A] made a short statement to the effect that before she came to Australia she borrowed money at interest from a rich man who she was supposed to repay within a few years of arriving in Australia. She claimed that the lender had been sending threatening messages to her parents saying that if she did not repay her debt with interest then, should she ever return to Nepal, she would be killed. She claimed that the lender has connections with Nepal’s “ruling party” and therefore has the resources to execute his threats. She indicated that people like him also have the power to force women into prostitution. She said the authorities are not resourced to protect her and that there is nowhere she can safely relocate within Nepal.
Mr [A] did not provide many personal details in her original protection visa application. She said she had a mother and a sister living in Nepal and mentioned that her father had died.
Also, as noted above, Ms [A] did indeed return to Nepal for a month in August-September 2010, but claimed no harm having come to her on or after her return.
In a March 2020 statement made through her adviser, Ms [A] said her father committed suicide due to pressure put on him to repay the loan.
At the Tribunal hearing, I asked Ms [A] when she borrowed the money and she said she did so around two months before flying to Australia in November 2008. She said the amount she borrowed was “[amount] lakhs” or [amount] rupees, which exchanges today at around A$[amount]. She said the interest rate on the loan was 25%. I asked her why she agreed to enter into what appeared to be such an onerously usurious loan and she said that she had her student visa but was running late paying her Australian tuition fees and airfare to get here.
I asked Ms [A] if she entered into the loan arrangement herself, as indicated in her original statement to the former Immigration Department, and she said her late father borrowed the money. I put to her that her evidence on this point appeared inconsistent and she said that her father borrowed the money but presented her to the lender as the person who would repay him. Later I asked her if she repaid the money directly to the lender and she said she did not, adding that for as long as she was repaying the debt she sent money to her parents who then paid it to the lender. I put to her that this explanation indicated that her father borrowed the money and that he was the one directly repaying it. In response, she said her family always made it known to the lender that they were receiving money from her to repay the loan.
Ms [A] said she stopped paying monthly instalments on the loan after about six months. She said the threats started around then. I then drew attention to her claim about being afraid to return to Nepal lest the lender kill her as threatened, observing that she did indeed return to Nepal a few months after failing to repay the loan and being threatened with death. I asked her why she spent money on herself to go back to Nepal and come here again instead of continuing to repay the loan and/or staying here for her own safety. In response, she said that the lender had bene putting stress on her parents, causing her to decide to go back to Nepal to see if she could level with him and reassure him that she would repay the loan. She said that she succeeded in mollifying the lender, but she also indicated that the last time she ever repaid the lender was before she went back to Nepal. This means that after pleading on behalf of her parents during her visit to Nepal she came back to Australia and did nothing to keep her word to the lender, thus exposing her family again to the stress she said she went to Nepal to ameliorate.
I put to Ms [A] that an unscrupulous lender might gain more from threatening the wellbeing or lives of the borrower’s close relatives rather than the life of the borrower herself, and yet her lender had evidently not perpetrated serious harm upon her family. In reply, she said the lender gave her family stress. I put to Ms [A] that, if the lender regarded her as the person best placed to return his money to him with interest, it might be pointless to kill her as this would mean that he would never be paid. In response, she said she did not think he necessarily wanted his money back. She also said he might not really want to kill her and might prefer to exploit her.
I asked Ms [A] about her father. She said he committed suicide in 2011. She said that since then the lender had been putting stress on the rest of her family. I asked her what her father’s death certificate reported and she said it stated that her father committed suicide. I put to her that it is unusual for medical certificates to omit physical causes of death. In reply she said her father [killed] himself and that this was what the death certificate said. I asked Ms [A] why she only referred in her original protection visa application to her father having died, rather than having indicated that his death was a relevant fact in this case. In rely she said she had mentioned that he died. This was not a satisfactory response to my question.
Ms [A]’s claim about her father having committed suicide is unsupported and appeared, on the evidence before me, to have been an embellishment.
I asked Ms [A] if there was any documentation or other written material pertaining to the loan and/or the debate over failure to repay it. In reply she said there never was anything written about the loan or the issue of repayments. This claim does not sit with Ms [A]’s claim in her original protection visa application about her the lender having sent messages to her family.
In any event, Ms [A]’s claims about the existence of the loan are unsupported.
I put to Ms [A] that, on the evidence before me, this matter did not appear to be refugee related as it did not appear to involve her “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” In reply, Ms [A] said that the lender has political connections. I put to her that the evidence did not suggest she was facing harm for reasons of her actual or imputed political opinion and she concurred.
I referred Ms [A] to her claim about the lender being a member of the “ruling party” in Nepal. I asked her if she meant the party that was governing Nepal at the time she borrowed the money and she said this was correct. I asked her if the same party was governing Nepal at the time of her original protection visa application, and she said it was. She said that the party to which she was referring was the Nepali Congress Party. I put to her that, according to independent country information, the Nepali Congress Party was not governing Nepal either in 2008 or in 2016[1]. Information she provided describing the lender was thus misleading.
[1]
I asked Ms [A] why she delayed bringing her protection claims to light: there was around a year between her exhausting of avenues to have her student visa refusal overturned and her application for a protection visa. In reply, she said she knew no-one at the time who could help her explore the possibility of seeking protection. I asked her if she had a migration agent helping her with review and appeal applications up to 2015 and she said she did. She then said that she just omitted raising the issue earlier than she did. This did not strike me as a satisfactory explanation for Ms [A]’s delay in lodging the present protection visa application.
Ms [A] told me she has a new passport valid to 2026. I put to her that she is entitled as a Nepalese citizen to enter and reside indefinitely in India[2] if, for any reason she prefers not to return to Nepal, and invited her to comment. In response, Ms [A] acknowledged her right to enter and reside in Nepal but said that if her lender found out she was there he would kill her. As put to me, this claim appeared baldly speculative.
[2] DFAT Country Information Report Nepal (21 April 2016); DFAT Thematic Report Nepal - India-Nepal Treaty of Peace and Friendship - Rights of Nepalis in India (22 December 2016)
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[5] 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.[6]
[5] MIMA v Rajalingam (1999) 93 FCR 220.
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Looking at the evidence in this matter cumulatively, I do not believe that Ms [A]’s claims about the loan and the lender are truthful. Details she has provided about the lending strike me as having been marred by revision. She has given inconsistent information about whether anything has ever been written to anyone about the loan. She mischaracterised the lender as a person belonging to the party in power at the time of the loan and at the time she lodged her protection visa application. She gave inconsistent information as to whether she was the borrower or her father was. She returned to Nepal in 2010 even after being told that, should she do so, she would be killed, and yet no harm came to her, whilst her explanation as to why struck me as being implausible. Claiming to have struck a deal with the lender in 2010 to have him spare her family in exchange for her resuming the loan repayments, she then returned to Australia and behaved as though the debt did not exist. She also omitted from her original application a key claim about harm suffered in this matter, in not mentioning her father having committed suicide. On the evidence before me, I do not accept that Ms [A]’s father’s death was due to suicide. There is also the matter of Ms [A]’s long delay in bringing her protection claims to the attention of Australian authorities, and I give cumulative weight to this. On the evidence before me, I find that Ms [A]’s account of threats from an unscrupulous lender was invented after a long and unsuccessful effort to have her last student visa refusal overturned.
Critically, as far as this s.36(2)(a) assessment is concerned, Ms [A]’s claims have no nexus to the criteria in s.5J(1)(a) of the Act.
Having considered all of the evidence in this matter it its entirety, I am not satisfied that Ms [A] faces a real chance of being persecuted in Nepal fin the reasonably foreseeable future or any of the reasons in s.5J(1)(a) of the Act. Her claimed fear of being persecuted in Nepal is not well founded. She is not a refugee.
For the reasons given above, I am not satisfied that Ms [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act

Having concluded that Ms [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. Cruel or inhuman treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Degrading treatment or punishment does not include an act or omission which is not inconsistent with Article 7 of the ICCPR, nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that Ms [A] is a citizen of Nepal, I find that Nepal is the “receiving country” in this case.
I find that the harm Ms [A] identifies in her claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
Ms [A]’s claims to complementary protection are essentially the same as her refugee status claims. Her claims have failed as refugee status claims due to their failure to meet any of the criteria in s.5J(1)(a). However, I have also found that her refugee claims failed due to lack of credibility. In the circumstances, her claims can no more succeed as complementary protection claims.
Therefore, again having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that Ms [A] will suffer significant harm.
Accordingly, I am not satisfied that Ms [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that Ms [A] 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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy

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 1438

9 April 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies