1704304 (Refugee)

1704304 (Refugee) [2017] AATA 1502 (22 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704304
COUNTRY OF REFERENCE:                  India
MEMBER:Alison Murphy
DATE:22 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2017 at 3:28pm

CATCHWORDS
Refugee – Protection visa – India – Borrowed money to fund studies – Unable to repay – Threats of harm by lenders – Evidence of sufficient funds – Criminal charges – Delay in application – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 is a citizen who first arrived in Australia [in] March 2009. He applied for the visa [in] December 2016. [In] March 2017 a delegate of the Minister refused to grant the visa on the basis that she was not satisfied the applicant was a person to whom Australia owes protection obligations.
The applicant sought a review of the delegate’s decision from this Tribunal [in] March 2017. The applicant attended hearings by video link on 5 and 27 July 2017 to give evidence and present arguments. He was assisted at that hearing by his friend and support person, [Mr A], who made a closing statement to the Tribunal. Both hearings were conducted with the assistance of an interpreter in the Punjabi and English languages.
At hearing the Tribunal discussed with the applicant information contained in the departmental file that appeared to be adverse to his case and the applicant responded to that information. After the hearing the Tribunal wrote to the applicant under the provisions of s.424A, inviting his further response to or comment on that information. The applicant’s written response to the Tribunal’s letter was received on 7 August 2017.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal hearing
The Tribunal hearing took place by video link between the Tribunal’s [city] offices and the [detention centre]. Hearings scheduled by the Tribunal for 4 May 2017 and 18 May 2017 were postponed the applicant’s request. A hearing scheduled for 6 June 2017 could not proceed because of technical difficulties with the video link. The hearing on 5 July 2017 commenced but was unable to be completed due to the poor quality of the video link. The hearing was completed on 27 July 2017.
During the hearing on 27 July 2017 the applicant advised the Tribunal that the picture on the video link at [the detention centre] froze at times, however the audio was not affected. There were no difficulties with the picture or audio at the [city] end of the video link.
At hearing the applicant sought to be represented by his friend and support person, [Mr A], also an inmate at [detention centre]. At the applicant’s request the Tribunal allowed [Mr A] to be present during the hearings and to make a statement at the end of the applicant’s evidence.
The applicant asked the Tribunal to hear of evidence by telephone from his [relative] [Mr B] in [city]. The Tribunal rang the phone number provided on multiple occasions during the hearing but it was not answered. At the conclusion of the hearing the Tribunal adjourned the review application for seven days to allow the applicant time to produce a further statement from his [relative] or any other documents.
On 1 August 2017, the Tribunal wrote to the applicant pursuant to section 424A inviting his comment on information before the Tribunal which it considered adverse to his case.
The applicant responded to the Tribunal’s letter in writing on 7 August 2017, attaching a number of documents including an affidavit of [Mr B] dated [in] August 2017, [health service] records and confirmation of his attendance at various courses offered through [the health service] and a letter from [name] Chambers dated [in] October 2015 regarding his police matters.
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1]. However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[2]. As discussed with the applicant at hearing, the Tribunal has significant concerns about the credibility of his claims for protection that have ultimately caused the Tribunal not to accept aspects of his evidence. The Tribunal’s particular findings are discussed below.
Country of nationality
[2] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The applicant travelled to Australia on an apparently genuine Indian passport, a copy of which is contained on the department file. The applicant has always represented himself to be an Indian citizen in his dealings with the Department of Immigration and Border Protection. The Tribunal finds the applicant is an Indian citizen and has assessed the applicant’s claims against India as his country of nationality.
The applicant’s migration history
The applicant’s migration history is set out in detail in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant. In summary:
·The applicant first arrived in Australia [in] March 2009 as the holder of a [student] visa. He was subsequently granted several further student visas, the last of which was valid until [date] May 2016;
·[In] January 2014 he departed Australia and returned to India, re-entering Australia [in] March 2014. In August 2014, his education provider notified the Department that he did not commence his course and in October 2014 his education provider notified the Department that he had cancelled his enrolment;
·[In] December 2014 the applicant applied for a subclass 820 spouse visa on the basis of his relationship with [name];
·[In] January 2015 he was arrested by [police] and charged with a number of criminal offences, being [offences]. He was convicted by the District Court [in] October 2015 and sentenced to a term of imprisonment of [term], but released immediately on account of time already served;
·[In] March 2016 his [student] visa was cancelled by the department at which point his continued presence in Australia became unlawful. [In] May 2016 he was taken into immigration detention;
·He applied for a bridging visa which was refused [in] June 2016. He sought a review of the decision to refuse him a bridging visa from this Tribunal and on 17 June 2016 this Tribunal affirmed the decision to refuse him a bridging visa;
·He was transferred to [detention centre] [in] June 2016 and then to [an] Immigration Authority [in] November 2016;
·He was scheduled to be removed from Australia [in] December 2016 but [in] December 2016 he lodged an application for a protection visa.
The applicant’s personal background
At hearing the applicant confirmed that he was born and grew up in [a] village in [a certain] District of Punjab. His immediate family consisted of his parents [and siblings]. His mother died in 2007 and his father remarried in 2010. His father remains living in the family home in which the applicant grew up. [One sibling] married in 2010 and lives with [the spouse] in another village 5 to 6 km away from [his village] while his [other sibling] lives in another city around 80 km away.
He gave evidence that he undertook his matriculation at a private school and then completed year [grade] and [grade] at a government school. He undertook a [tertiary course] by correspondence as well is a [different course] from a local institution.
The applicant gave evidence he worked as a [occupation] [in] a neighbouring village and also [worked] in a [workplace]. He also played [sport] and was selected to play for the county. Since his arrival in Australia he has undertaken some studies and also worked at [workplace] and as a [occupation] in [Australia]. He worked as a volunteer for a period at a [workplace] as part of his work experience for his studies.
The Tribunal accepts each of the above matters to be true.
The applicant’s protection claims
The applicant claims in essence to fear harm in India as a result of money he borrowed in order to fund his studies in Australia. In his protection visa application he states he borrowed a big sum of money from people including some of his own relatives, promising to return money once he settled in Australia and got a reputable job. He states his circumstances prevented him from repaying the money so two years ago he visited India in order to sort things out with the people who had lent him money. He claims while in India his father and others threatened him, causing him to go into hiding at his [relative]’s house until he returned to Australia. He states that his family was constantly receiving threats from the lenders, causing his family to disown him and tell him not to come back to India ever again. He claims if he returns to India he will be abducted, tortured, physically harmed or killed by the people from whom he borrowed money. He claims he also fears harm from his father who threatened to shoot him if he returns to India because the lives of his father other family members are at risk from people who lent the applicant money.
In assessing the applicant’s claims the Tribunal has had regard to the documentary evidence he has produced including his various written statements, statutory declarations of his [relative] [Mr B], a photocopy of a classified advertisement in an Indian newspaper indicating that his father has disowned him, statements and affidavits purporting to be made by his [father] (including an affidavit detailing the claimed loans) as well as submissions and news articles about the situation in India.
The Tribunal has also had regard to the [health service] medical report dated [in] May 2017 which indicates that the applicant is receiving medical treatment for [conditions] and other [health service] records indicating that he has undertaken several courses [offered] through [the health service]. The Tribunal has been mindful of these matters when assessing the applicant’s credibility.
However as noted above, the Tribunal has significant concerns about the applicant’s credibility. For the reasons that follow, the Tribunal does not accept the applicant comes from a poor family or that he or his father borrowed money from relatives and others in the village to fund the applicant’s studies in Australia.
Firstly, the applicant has given inconsistent information about his family’s financial background in his various visa applications. In written statements to the Tribunal and the department, the applicant describes his background is one of poor socio-economic circumstances in which his father is a retired [and] drunk who lost his retirement funds to unscrupulous individuals who promised him a working visa to [country] and lives in poverty.
However the applicant paints a completely different picture of his family’s financial circumstances in documents he supplied in support of his student visa application. In a handwritten statement lodged with his application for a student visa [in] July 2012, the applicant states his father is well-established, has a successful business and owns rural as well as urban property. When this was discussed with the applicant at hearing, the applicant stated his student visa application was prepared by his agent and he simply signed the prepared papers. He said he information he provided in his protection visa application was true in that it father got drunk and beat his mother and his children. In response to the Tribunal’s letter under section 424A, the applicant stated that the hand written statement was not actually written by him, rather he was reliant on the advice of his former agent in India, [Mr C] and [Mr C]’s colleagues. He states these people and his father colluded with his agent in Australia [to] gather all necessary information and prepare the student visa application on his behalf.
The Tribunal does not accept this explanation as credible. In particular the Tribunal does not accept that the applicant’s agent in Australia in 2012 colluded with his former agent in India from several years earlier to create a false personal statement for his student visa application. The Tribunal notes the handwritten statement is written in the first person and purports to be the statement of the applicant. In light of the Tribunal’s significant concerns about the applicant’s credibility, it does not accept that statement was prepared by any person without the applicant’s knowledge. Rather it considers that statement was made by the applicant personally and he has been untruthful in his evidence during these proceedings and that reflects poorly on his credibility.
Secondly, the applicant’s evidence about borrowing money to fund his studies in Australia is entirely inconsistent with the documentary evidence produced in support of his student visa applications lodged in 2008 and 2011. As discussed with the applicant at hearing, financial documents submitted in support of his first student visa application indicate that the applicant demonstrated his financial capacity by providing details of funds held on deposit by his father [in] [a] Bank. The documents record the term deposit for [amount] Indian rupees was opened [in] June 2006 at an interest rate of 8.5% and a confirmation of deposit of [amount] Indian rupees was issued [in] September 2007. The delegate states in the decision record that these funds were sufficient to meet the financial capacity requirements of the applicant’s student visa. In a later student visa application lodged [in] June 2011, the applicant provided evidence of a term deposit held by [another bank] of Rs.[amount] at an interest rate of 9.25% and that a further amount of Rs [amount] was available as an overdraft loan to [his father]. A translated copy of an agreement for sale was also provided indicating that [his father] sold a plot of land for Rs [amount] [in] July 2011.
At hearing the applicant stated that he had no idea his father owned land or held these bank deposits because his father kept this secret from him. He said his father had always told him that they would have to borrow money to fund his studies in Australia. He said he became suspicious that his father held assets that he didn’t disclose when his father remarried and paid for his sister’s wedding, but that Indian culture meant that he could not question his father about these matters. In response to the Tribunal’s letter under section 424A, the applicant again states he was not aware his father’s held monetary and real estate assets at the time and this was not disclosed to him by his father or his agent [Mr C]. Rather he states he was simply advised by his father that they would finance his studies in Australia by seeking a personal loan. He states when the time came to renew his student visa application in 2011, his former agent [Mr C] advised him to deal with [an agent in Australia], who liaised with the applicant’s father and [Mr C] and his colleagues to arrange the visa renewal documentation. He claims that at no time was he aware of his father’s asset backing or wealth and he believes in any case that the assets may have belonged to his father’s new wife, whom he married in 2010.

The Tribunal does not accept that explanation. The Tribunal considers it implausible that his father would withhold from the applicant information about the family’s financial position and require him to go through the process of borrowing money to fund his studies, but then provide the applicant’s agent with documents showing he in fact had capacity to fund those studies. The Tribunal considers the financial documents provided in support of the applicant’s student visa application show that the applicant’s father held sufficient assets to fund his Australian studies without borrowing money from others and these funds were held for at least two years prior to the applicant’s first student visa application being lodged in 2008. It is clear that these assets could not have belonged to his father’s second wife, given they didn’t marry until 2010. The Tribunal does not accept the applicant’s father would have provided those financial documents in support of the applicant’s student visa application if his financial position was secret from the applicant as claimed. Rather the Tribunal considers the applicant has been untruthful in his evidence during these proceedings about his family’s financial position.
Thirdly, the applicant first arrived in Australia [in] March 2009 but did not make claims for protection until [date] December 2016, one day before he was due to be deported from Australia. At hearing the applicant told the Tribunal he did not make his claims earlier because he was studying and expecting to be sponsored for a permanent visa to Australia. In response to the Tribunal’s letter under section 424A, the applicant stated he did not apply earlier because he did not know a protection visa existed and this is consistent with his cultural background, given India is a country where little protection is provided by the authorities. The Tribunal has considered the applicant’s explanation but the delay in claiming protection, taken together with the other concerns the Tribunal holds about the applicant’s credibility, causes the Tribunal not to accept he has a subjective fear of returning to India.
Fourthly, the material before the Tribunal indicates that [in] October 2015 the applicant was convicted by the District Court of [State] and sentenced to a term of imprisonment of [term]. for [offences]. At hearing the applicant told the Tribunal there were mitigating circumstances in his case. In response to the Tribunal’s letter under section 424A, the applicant stated [certain] charges were withdrawn, the breach of the [certain order] and breach of [certain] conditions relating to a stupid mistake rather than a malicious one, and although he was convicted of [crime] no penalty was imposed. [Details of criminal offence deleted]. He states he has had no prior convictions in India or Australia and has led a substantially law abiding life and has undertaken voluntary personal and character development programs while in detention.The Tribunal has considered the applicant’s response. However taken together with the Tribunal’s other credibility concerns, the Tribunal considers these matters indicate he has little respect for Australian laws and this reflects poorly on his credibility.
In view of the Tribunal’s very serious concerns about the credibility of the applicant’s claims, the Tribunal gives little weight to various written statements of the applicant, his [relative] [Mr B] and his [father]. While the Tribunal accepts that a classified advertisement was placed in an Indian newspaper indicating that the applicant’s father has disowned him, it considers this was done for the purpose of embellishing the applicant’s claims and does not reflect the true state of their relationship. The Tribunal has noted the news articles and reports produced by the applicant, but does not accept them to be relevant to the applicant’s personal circumstances.
For all of these reasons the Tribunal does not accept the applicant to be a credible witness. It does not accept he or his father borrowed money from people in his village or family members to fund the applicant’s Australian studies. It does not accept any of those people threatened the applicant, his father or any other member of the family when those monies were not repaid. The Tribunal does not accept the purpose of the applicant’s return to India in 2014 was to try and negotiate with the lenders, nor does it accept that he was threatened with harm by his father, the lenders or any other person as a result of money borrowed. It does not accept that the applicant went into hiding while in India, nor that he returned to Australia in fear of his life.
It follows the Tribunal does not accept the applicant’s father or any other person would seek to harm the applicant because of money borrowed for his Australian studies if he returns to India. For these reasons the Tribunal does not accept there to be a real chance that the applicant would suffer serious harm for any reason relating to borrowed money if he returns to India, now or in the reasonably foreseeable future.
Jehovah’s Witness claims
At hearing the applicant told the Tribunal that he also feared returning to India because of his past activities with the Jehovah’s Witness church in Australia. He stated he started attending the church in 2009 and was baptised into that faith in 2012. When asked if he was still a Jehovah’s Witness, the applicant stated he wasn’t. He said when he told his father his father argued with him and threatened him and so he told the Jehovah’s Witnesses that he had to concentrate on his studies. He said he had not attended a Jehovah’s Witness church since 2012.
When asked how he would now describe his religious beliefs, the applicant said that as a Sikh he believed in one God. He said he attends church in detention as he has no access to a Sikh temple and at that church many people share their different beliefs. When asked if he followed the Sikh religion now, the applicant stated it was not really a religion but a way of life and that he still followed his Sikh religion and had all his holy books. He said if he returned to India he would pray in his own way. When asked if he would go to Sikh temple or a Jehovah’s Witness church he said he would like to both but that he had never heard of a Jehovah’s Witness church in his area.
The Tribunal notes the applicant last attended a Jehovah’s Witness church in 2012 and his evidence at hearing indicates he is now a practising Sikh. In his protection visa application lodged [in] December 2016 he states his religion is Sikh. At hearing he told the Tribunal he still followed his Sikh religion and had all his holy books. The Tribunal finds the applicant is of Sikh religion and he will seek to practice that religion if returned to India. While the Tribunal accepts the applicant had some involvement with the Jehovah’s Witness church in the years between his arrival in 2012, it finds he is no longer an adherent of that faith and would not seek to practice that faith if he returned to India now or in the reasonably foreseeable future. The Tribunal does not accept there to be a real chance the applicant would be harmed by his father or any other person for reason of his past involvement with the Jehovah’s Witness church if he returns to India, now or in the reasonably foreseeable future.
It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for reasons relating to the Jehovah’s Witness faith if he returns to India, now or in the reasonably foreseeable future.
For these reasons the Tribunal does not accept there to be a real risk that the applicant would face serious harm if returned to India for any reason.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has 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 will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of India and the Tribunal therefore finds that India is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicant’s father or any other person would seek to harm the applicant because of money borrowed for his Australian studies or because of his past involvement in the Jehovah’s Witness church if he returns to India now or in the foreseeable future. In MIAC v SZQRB, the Full Federal Court held that 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.[3] For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on these bases.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to India.
CONCLUSIONS
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.
Alison Murphy
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 1502

22 August 2017

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