1703908 (Refugee)

1703908 (Refugee) [2017] AATA 682 (21 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703908
COUNTRY OF REFERENCE:                  Korea, Republic Of
MEMBER:B. Mericourt
DATE:21 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 April 2017 at 2:08pm
CATCHWORDS
Refugee – Protection visa – South Korea – No Convention reason – Victim of money lenders – State protection – Internal relocation – Undeclared criminal record – Delay in protection application

LEGISLATION
Migration Act 1958, ss 5(1), 5H(1), 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 [in] March 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 the Republic of Korea, applied for the visa [in] December 2016. The delegate refused to grant the visa on the basis that he was not satisfied that there was a real chance or real risk that the applicant would suffer serious or significant harm now or in the foreseeable future if he were to return to the Republic of Korea.
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 themself 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.
BACKGROUND
The visa applicant was born in [year] in the Republic of Korea and is a citizen of Republic of Korea. He is single and has no dependents. His [relative] resides in South Korea. He stated that he had been employed as [two occupations] in Busan, South Korea.
[In] March 2016 the applicant was granted [a temporary] [visa] and he entered Australia [in] March 2016. [In] August 2016 he was granted an extension of his [temporary] visa to [a date in] November 2016. After his [temporary] visa ceased the applicant was placed in detention and he lodged an application for protection [in] December 2016. The applicant was not interviewed by delegate of the Department and the decision was made to refuse to grant the visa [in] March 2017.
The applicant provided the Tribunal with a copy of the Department’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his written application for protection the applicant stated he left South Korea because he was harassed by his [Ethnicity 1] boss from whom he had borrowed $[amount]. His boss would come to his house to ask for his money and would hit him in front of the local people. He assaulted him on two occasions and threatened him on hundreds of occasions. The applicant was unable to repay the loan. His boss was connected to some “mafia” in South Korea and threatened him many times. When the applicant attempted to pay him a little by little his boss demanded 10% interest which he could not pay. His boss started to look for him and threatened his life which is why the applicant decided to come to Australia. He believes that if he returns his boss will kill him as his boss is in the [mafia] and has many people who will do anything for money. The police cannot protect him as there is too much bribery in South Korea. He cannot relocate because everyone in the country is corrupt and his [Ethnicity 1] boss is connected to the mafia and has contact with the police by bribing them. His boss’ people were keeping an eye on him every day.
Claims made at the Tribunal hearing
The Tribunal discussed the applicant’s background, circumstances in Australia and his claims for protection which are summarised as follows:
The applicant told the Tribunal that his [specified family members] reside in Korea. He has had no contact with his biological father for over 15 years whom he believes to be living in [Country 1]. He is in contact with his family in Korea via phone and internet. He last spoke to [a relative] 4-5 days before the hearing. Before he came to Australia the applicant lived in Busan City and he was co-managing a [business] with a business partner.
The applicant said that he thought his [temporary] visa ended in February 2017 but it was cancelled in November 2016 when he was found to be working illegally [in] [a location] and he was placed in detention. He thinks someone reported him and others to the Department. He was aware that he was not allowed to work on his [temporary] visa.
The applicant told the Tribunal that when he first came to Australia it was not his intention to stay permanently. Originally he was going to just travel for three months. During this period he thought he would study English and he investigated the possibility of getting a student visa. However, he was swindled by the education agent in Sydney he contacted. This person had been his roommate in Australia. The applicant paid him money for the visa and deposit for accommodation in Sydney but he ran away with all his money. As the applicant only had 15 days left on his [temporary] visa he sought advice from a legal advisor who suggested he return to Korea and apply for a [specific temporary] visa. He arranged for an application for an extension to his [temporary] visa which was granted.
The applicant thought that his second [temporary] visa ceased in December 2016 and he was picked up by Department officers [in] November 2016 and detained and then his [temporary] visa was cancelled. He had already purchased a ticket to South Korea via [Country 2] and offered to show this ticket to his case manager at [the detention centre] to prove that his intention was to leave Australia. However, he said that he did not actually intend to return to South Korea. He thought that he could apply for the [specific temporary] visa from [Country 2] as there is an authorised health centre there for getting the relevant medical checks for [that specific temporary] visa.
The Tribunal asked the applicant why he did not apply for protection earlier given he feared returning to Korea. The applicant said he only discovered he could apply for protection from his colleague in [detention]. He had been afraid to tell any Korean in Australia about what happened to him in South Korea as he was never sure what their connections were. When he sought advice from the lawyer he did not tell him about his circumstances in Korea although he did tell him he did not want to apply for a [specific temporary] visa from South Korea which is how he discovered he might be able to do so from [Country 2].
Claims
The applicant is reasonably sure that the information in his application for protection is correct but the person assisting him did not read back what he had written. This person only spoke a little Korean and the applicant only speaks a little English. The Tribunal therefore places little weight on some of the inconsistencies between the applicant’s written statement and his oral evidence at the hearing.
The applicant said he is frightened to return to South Korea as he has a debt to illegal money lenders in South Korea. His father borrowed money from illegal lenders using the applicant’s family registration documents and using the applicant’s name as guarantor. The applicant only found out about the debt in 2014 although his father had borrowed the money seven years earlier. He had borrowed [amount] Korean won (approximately AU$[amount]) at a variable rate of interest. The initial rate of interest was 5.9% but the interest rate increased if no payments are made. The interest could go as high as 21.9%. His father had been paying only interest between 2007 and 2009 and then he left Korea and the applicant lost touch with him. He thought that he had gone to [Country 1]. He did not know about the debt between 2009 and 2014 because the moneylenders didn’t find him. The applicant did not borrow money himself. When the moneylenders found him they demanded he pay a debt that now totalled [amount] Korean won (approximately AU$[amount]) because no repayments had been made for so long.
The Tribunal asked the applicant how the moneylenders found him after a period of seven years. The applicant found out about the debt in April 2014 when he had to appear in court on a charge related to [a criminal offence]. The illegal lenders who are [of Ethnicity 1] approached him after his court appearance. The applicant does not know how the [Ethnicity 1] money lenders found out about his court case and charges, but thought they found out because they have connections with the police and the courts due to their gaming room activities. His address was on the judgement paper from the court.
The Tribunal asked the applicant about the nature of the court case and charges. He said that he had ordered [items] from [Country 2] [and] he then discovered that the Korean government defined these ‘temporarily’ as [illegal]. He was also found guilty of possessing [another illegal item]. He hired lawyers and was bailed. He was found guilty and sentenced to [number] years suspended jail sentence and probation and [number] hours of [an] education program.
The money lenders waited for the applicant to be released from custody and visited him at his home in about mid-2014 and threatened him. The applicant said he had known nothing about the debt before the money lenders visited him. The Tribunal asked what happened when he told them he didn’t know anything about it. He said they threatened him and as he was legally responsible for the debt he started repaying it by paying 50% of his salary. The Tribunal questioned how he would be legally liable for a debt his father had with illegal money lenders. He said even in the courts he would be responsible for the debt as there was a signed contract which identified him as the guarantor. The debt itself is legal - only the practices of the money lenders are illegal.
Even though the applicant was paying 50% of his salary he was still not paying off the principal of the loan. He was continually harassed and threatened by the money lenders who also assaulted him. He ‘ran away’ to a different region. He was living in [another] City in 2014 and ran away to [several other locations] and finally Busan City. The lenders found him wherever he moved. Sometimes they bashed him up, although never to the extent that he could not work. He was threatened that he would be killed if he did not repay the money. Different people came and threatened him in different places.
The applicant said that he did not seek protection from the authorities. He did seek legal advice several times and they all said there was no hope. The best advice he received was that he should only pay the principal but to fight the case in court would cost him as much as interest, so the best idea would be to have the contract revised so he could repay over a period of 50 years. However, the applicant was fearful of the threats he was receiving and the time it would take him to go to court or seek an alternative arrangement.
The Tribunal asked if he had a copy of the loan contract. The applicant said that he thought could get a copy of the contract from South Korea by calling his friends, although he does not know exactly where it is. The Tribunal put to him that he must have stored his personal belongings somewhere when he left Korea. The applicant said that when he first left Korea he was not intending to leave permanently. He wanted to see what the money lenders would do. If they didn’t come back to the [business] he would have returned to South Korea and tried something else. After he decided to stay in Australia he asked his friends to collect and store his things.
The Tribunal asked what happened after he left Korea. The applicant said that when he first arrived he still had his Korean mobile phone number. He received a text less than one month after he arrived saying when he returns to Korea they will kill him and sell his internal organs. He stopped paying for his Korean connection so the phone was disconnected. He has since changed his mobile phone twice and no longer has a copy of this message.
The applicant has kept in contact with the person with whom he owned the [business]. This person has told him everything is quiet now and he could return to South Korea. People did come to the [business] many times after he left and asked his business partner where the applicant was and for his contact numbers. His partner just told them he didn’t know where he was.
The applicant thought the illegal lenders will know that he has returned because he is still on probation until April 2017. He will have to report his return to the probation authorities in Korea even though his probation period has ended because it is a requirement that he [be assessed] at the end of his probation period.
The Tribunal put to the applicant that on his protection application he had said he was located and working in Busan for four years between 2012 and 2016, not moving around. The applicant said that he only moved to different residences and stayed in employment with the same company which had [different] [locations] in Busan. The areas he had talked about were all part of the greater city of Busan. The Tribunal put to the applicant that the population of Korea was over 50 million and to really avoid the money lenders he could relocate to somewhere such as Seoul which is a long way from Busan and has a population of over 10 million. He said Seoul is only 2-3 hours from Busan by train and they would find him anywhere in Korea.
The Tribunal put to the applicant independent country information provided by the US Department of State in April 2016 about state protection against harm from loan sharks or illegal moneylenders. This information indicates that there are laws and regulations related to unlawful lending practices and the collection and protections for borrowers. Information indicates that the South Korean government has taken measures to protect people against illegal moneylenders, their practices and exorbitant interest rates. The information also indicates that people who have borrowed money from illegal moneylenders and are unable to repay their debts are assisted by the Korean authorities.[1] In addition the Seoul Institute has reported that there is a special law enforcement unit established in Seoul specifically for the purpose of stamping out illegal money lending practices and protecting people from the sort of situation he had described.[2]
[1] US Department of State (USDOS), Republic of Korea - Country Report on Human Rights Practices, 2015, 13 April 2016,OGD95BE926258
[2] Hyungho Youn & Jieyeoun Lee, A Study on Illegal Money and Crackdown, The Seoul Institute, 2 February 2017, Accessed 19 April 2017
The applicant said he did seek advice from “those people” but the situation is different from what is reported on the internet. The Tribunal pointed out that the advice was from USDOS and the Seoul Institute not just social media.
The applicant said that even if he reported his situation to the police he doesn’t feel safe. Australian police are different from those in South Korea. Police will not proactively try to protect you in South Korea.
The Tribunal asked the applicant if he ever declared that he had a criminal record when he applied for his visas. He asked what the Tribunal meant. The Tribunal put to him the question on the application for protection which asked him about whether he had been found guilty of convicted of a crime or any offence in any country to which he had responded no. He said that his case manager completed the form and did not ask him those questions. The Tribunal asked him about his response to a similar question on his [temporary] visa application. He said he would have interpreted any such question as whether he had ever been jailed which he has not, so he would have answered no to the question. He then said his case manager asked him if he had ever been charged with a criminal offence and he told him yes. The Tribunal put to him that if he had replied yes then the person completing the form on his behalf would have ticked yes on the relevant box.
The applicant said he had no other claims for protection. The only reason he feared returning to South Korea was because he feared he would be physically harmed or killed by the moneylenders. He still believes his life is at risk if he returns to South Korea.

The Tribunal expressed its concerns to the applicant that he had not really attempted to relocate as he had remained in Busan and worked at the same company for the entire period. He had also not actively sought protection from the relevant authorities. The applicant insisted the [Ethnicity 1] moneylenders would find him anywhere. He then said that his [contract] with his business partner ends in November 2017 and then he could relocate the business to another city. If he had to return to South Korea he did not want to do so until then.
FINDINGS AND REASONS
Nationality
On the basis of the applicant’s passport provided to the Department, the Tribunal finds that the applicant is a citizen of the Republic of Korea. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than the Republic of Korea. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of the Republic of Korea, the Tribunal also finds that the Republic of Korea is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
As the applicant only had assistance to write his application for protection from a colleague or staff member within [the detention centre] who did not speak very much Korean, the Tribunal places little weight on the differences in the applicant’s evidence between his written statement of [December] 2016 and his evidence to the Tribunal. In his written statement he said that he borrowed $[amount] from his [Ethnicity 1] boss in Korea and was then pursued, threatened and assaulted by people he believed were part of the [“mafia”]. This is different from his evidence to the Tribunal that his father borrowed roughly $[amount] in 2007 using the applicant’s family registration documents to nominate him as guarantor for the loan, and the people from whom he had borrowed the money pursued the applicant only in 2014 after he had appeared in court on charges relating to [a criminal offence].
Whether the applicant had borrowed the money himself or his father borrowed the money, essentially his claim is that he has a significant debt to private or illegal moneylenders who are demanding a usurious rate of interest and who have threatened him with harm and assaulted him. He fears his life is at risk if he returns to South Korea because he believes they will find him anywhere and that he is unable to seek protection.
The Tribunal had regard to the fact that the applicant appears not to have declared that he had a criminal record in Korea in either of his visa applications, and he also knowingly worked unlawfully in Australia during the period of his [temporary] visa. He delayed lodging an application for protection for almost 10 months and did not do so until he had been placed in detention. The Tribunal does not accept that he delayed making an application for protection because he did not want to tell other Koreans about what happened to him and therefore when he sought advice about how to remain in Australia he was only told about the possibility of [specific temporary] visas.
The applicant’s description of the actual incidents of threat or harm he claims to have experienced are vague. He embellished his claim that he had moved to 4 different locations within Korea and only when put to him that he had previously stated he had lived in Busan city from 2012 to 2016 did he indicate that the locations were all part of greater Busan city. Taking into account all these facts cumulatively, the Tribunal concluded that the applicant is not a reliable witness.
Does the applicant meet the refugee criteria?
Although the Tribunal accepts that the harm the applicant fears is serious harm, the Tribunal is not satisfied that the applicant is a refugee as defined by s5H(1) of the Act as he has not claimed that he fears persecution for any of the reasons provided in subsection 5J(1)(a) of the Migration Act, that is, for reasons of his race, nationality, religion, political opinion or membership of a particular social group.
Does the applicant meet the criteria for complementary protection?
The applicant claims that if he were to return to South Korea, illegal money lenders would harm him or kill him as he has been unable to repay a substantial loan taken out by his father in 2007 using his family registration papers to nominate the applicant as guarantor for the loan.
The Tribunal accepts that it is possible the applicant has borrowed money himself or has some kind of debt to moneylenders in South Korea and that these moneylenders charged a high rate of interest and pursued him to repay the debt.
The Tribunal does not accept that the applicant was seriously harmed in Korea. He has not provided any supporting evidence such as medical reports of injury. He told the Tribunal that he was never hurt so seriously that he could not go to work. Nevertheless, he did not report the alleged assaults to the police or attempt to seek protection from the police or local authorities.
The Tribunal had regard to the applicant’s evidence which he repeated on several occasions during the hearing, which was that he initially did not intend to stay in Australia permanently but waited to see what would happen in Korea while he was away before making a decision about when to return. The Tribunal also had regard to the applicant’s request that he not be returned to South Korea until after November 2017 when he would be able to change his [business] registration to a different location, which suggests that he believes he could safely relocate to another city or part of Korea.
As put to the applicant at the hearing, the Tribunal is satisfied that the South Korean government has legislation in place which provides penalties for illegal moneylending and official corruption and the government implements the law effectively.[3] The city of Seoul built a special law‐enforcement department to crackdown efficiently on illegal lending and assists victims of illegal lending.[4]
[3] US Department of State (USDOS), Republic of Korea - Country Report on Human Rights Practices, 2015, 13 April 2016,OGD95BE926258, p.14
[4] Hyungho Youn & Jieyeoun Lee, A Study on Illegal Money and Crackdown, The Seoul Institute, 2 February 2017, Accessed 19 April 2017
Based on the above information, the Tribunal is satisfied that if the applicant genuinely fears serious harm from moneylenders, it is both safe and reasonable for him to relocate to Seoul where he could both avoid the harm he fears and seek protection from the relevant authorities.
Having regard to the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the Republic of Korea, there is a real risk the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
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.
B. Mericourt
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.
…
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.
…

[2017] AATA 682

21 April 2017

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Immigration

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