1709883 (Refugee)

1709883 (Refugee) [2020] AATA 5364 (29 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709883
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:David McCulloch
DATE:29 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 29 October 2020 at 10:12am
CATCHWORDS
REFUGEE – protection visa – Lebanon – political opinion – active supporter of Rafiq Hariri – fear of harm from Maronite Christians and Shia Muslims – credibility concerns in relation to political claims – particular social group – LGBTI individuals in Lebanon – new claim not raised earlier – convincing and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 12 April 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 Lebanon, applied for the visa on 2 February 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 21 October 2020 at 9.30am. The hearing was originally scheduled to be held in person. The day before the scheduled hearing, the representative contacted the Tribunal to indicate that the applicant had been in a COVID-19 ‘hot spot’ and on that basis had a test for the virus, and wanted to inform the Tribunal of this. The Tribunal determined that the hearing should occur by telephone the following day which it did. Both the applicant and the migration agent appeared by telephone. The applicant communicated in English.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act, 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-5LA of the Act, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Lebanon, 19 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant arrived in Australia [in] September 2012 as the holder of a [student] visa. The applicant applied for a [further student] visa on 13 March 2014, and the applicant was refused on 9 May 2014. The applicant applied to the Tribunal for review of the refusal on 28 May 2014, and the Tribunal affirmed the decision on 12 October 2014. The applicant applied for ministerial intervention on 7 November 2014, and this was refused on 1 December 2015. The applicant initially applied for protection on 18 December 2015, and this was ruled invalid on 21 January 2016. The applicant re-applied on 2 February 2016. The Department file contains the original application forms and the second application forms. The applicant states that he was refused an Australian visa as he did not sit for the IELTS test, as he was told that he did not have to. Prior to coming to Australia, the applicant states that he travelled to multiple [countries] from January 2009 to January 2010 due to his work as [an Occupation 1].
The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Mount Lebanon, Lebanon. The applicant is a Sunni Muslim of Arabic ethnicity, who speaks, reads, and writes Arabic, English, and French. The applicant has never been married nor in a de facto relationship. The applicant’s [family] reside in Lebanon, and the applicant speaks to them weekly via [social media]. The applicant lived at one address at [City 1], Mount Lebanon from birth until September 2012.
The applicant attended primary and secondary school from [year], graduating from [a named] High School, [City 1] in [year]. The applicant studied a [degree] at [a named] University, [in] Beirut from [year] before graduating in [year]. The applicant studied a [degree] at [a named college], Sydney from March 2013 before withdrawing in August 2013. The applicant worked as a [Occupation 2] at [Workplace 1], [City 1] from January 2003 until January 2009. The applicant worked as [an Occupation 1] [from] January 2009 until January 2010. The applicant then worked as an [Occupation 3] at [Workplace 2], [City 1] from January 2010 until September 2012. The applicant was unemployed from September 2012 until February 2014, when he began working as an [Occupation 3] for [Workplace 3], Sydney.
In the application forms, the applicant claims that he left Lebanon in order to continue his studies in Australia and find a better and safer life. The applicant claims that, if he returned to Lebanon, he would be subjected to significant and ongoing harm from Maronite Christians and Shia Muslims in his community. The applicant claims that these two religious groups constitute the majority of his city’s population and are linked by their political allegiance to their political parties, Hezbollah and the Free Patriotic Movement. The applicant claims that he is a Sunni Muslim and was a youth political activist for the Sunni leader, Rafiq Hariri. The applicant claims that he was perceived to be a supporter of Hariri’s regime due to being a Sunni, and that the applicant is a vulnerable target to opposing political activists and believes he may be harassed, kidnapped, tortured, or killed due to his religion and former political views.
The applicant claims that he experienced threats, intimidation, and harassment while he was in Lebanon. The applicant claims that, while he was a youth supporter studying at university, he received letters and phone calls telling him that ‘they’ know him and know that he is a Sunni and active supporter of Hariri. The applicant claims that the people identified themselves as supporters of the opposition. The applicant stopped participating in activities demonstrating his support for Hariri due to fear for his life. The applicant claims to fear that, if he goes back to Lebanon with its current political situation, that his past will cost him his life.
The applicant states that he did not seek help from the authorities as the Lebanese government is openly corrupt, and all the government organisations and employees are corrupt and do not act in the people’s best interests. The applicant claims that most people are afraid of speaking out as the police and government agents are motivated by bribes and political allegiance, and tend to exert tyrannical power and control over people who threaten the reputation of the authorities’ leaders.
The applicant claims that he cannot relocate as the political parties are prevalent across Lebanon, and they will find him if he tried to relocate. The applicant states that he decided to travel outside the country to guarantee his safety. The applicant also fears that his return to Lebanon and relocation would put his family in danger.
The applicant claims that, if he returns, his religion and previous advocacy will make him a target. The applicant claims that his being away from Lebanon will raise further suspicions about his involvement. The applicant claims that it is not safe to return in the turbulent political environment, and that his brothers overseas have warned him about returning. The applicant claims that he could not seek the protection of the authorities as they are corrupt and cause more harm. The applicant claims that the authorities are controlled and motivated by the political parties, and the applicant would not know whom to trust, as he may seek help from the authorities and they would turn out to be allies of Hezbollah or the Free Patriotic Movement and the applicant will be killed.
The application forms from the previous invalid application are included on the Department file. The application forms contain largely the same information and provide the same claims.
The day before the Tribunal hearing, the applicant’s migration agent indicated the applicant was wishing to make a new claim. Further documentary evidence was provided.
It is clear from this evidence that the applicant is making a claim based on being homosexual. A supporting letter is provided from a male individual, an Australian citizen, who indicates that he met the applicant in around February 2012 on a dating site. It is indicated that for the last nine years they have shared time together. This individual states that he cares for the applicant. Extensive text messages are provided between the applicant and this person making clear that they have been in a sexual relationship. Also provided are extensive text messages between the applicant and another male individual which also makes clear that they have been in a sexual relationship.
Independent information
The DFAT Country Information Report – Lebanon, 19 March 2019, provides the following information regarding the political situation in Lebanon (underlining added):
LGBTI (Lesbian, gay, bisexual, transgender, intersex)
Article 534 of the Criminal Code states that ‘Any sexual intercourse contrary to the order of nature is punishable by up to one year in prison’. In July 2018, however, the Court of Criminal Appeal in Mount Lebanon issued a ruling that consensual sex between people of the same sex is not unlawful, provided it does not violate morality and ethics (i.e. being performed in a public place). The court’s ruling upheld an earlier criminal court’s decision in 2017 to acquit nine people arrested by police in Beirut on suspicion of being gay and/or transgender. The ruling also follows four similar judgements from lower courts between 2007 and 2017 that declined to convict LGBTI individuals under Article 534. While other judges are not legally bound by the Mount Lebanon court’s precedent, and may still impose convictions under Article 534, legal experts believe they are likely to give serious consideration to the ruling in subsequent cases. Several prominent candidates publicly advocated the repeal of Article 534 during the May 2018 elections. No progress on repealing the article had been made in parliament by the beginning of 2019.
While enforcement of Article 534 has varied throughout the country, human rights observers report that authorities have at times used it as a means to crack down on visible and vulnerable groups, particularly transgender women and Syrian refugees. These crackdowns have generally occurred after religious groups have pressured police into taking action. Targeting has generally involved arbitrary arrest: DFAT understands that actual prosecutions under Article 534 are not particularly common. Human rights observers have reported cases of detained LGBTI individuals being subjected to physical abuse in some police stations, including being raped in some instances. Victims of such abuse are generally reluctant to make a formal complaint due to a fear of additional stigmatisation. While the practice of using invasive medical tests to ‘prove’ that a homosexual act had taken place no longer occurs, some police still reportedly threaten to subject LGBTI detainees to it. LGBTI advocates also report cases in which police have ordered LGBTI individuals to open their mobiles and have then summoned their contacts for questioning, most likely as a means of blackmail.
Authorities have occasionally prevented LGBTI organisations from conducting public events:
·in September 2018, security authorities attempted to close down a pan-Arab conference on LGBTI rights that had run annually in Beirut since 2013. After the conference director refused to cancel the conference, security officials ordered the venue hosting the event to shut it down. Organisers subsequently moved the remainder of the conference to a different venue. Security officials also took details of all conference participants from the hotel registry, including those from regional countries particularly hostile to LGBTI rights and individuals. The security authorities’ actions followed public statements from a conservative religious group that accused the organisers of promoting homosexuality and drug abuse, and called for the conference to be closed down on the grounds of ‘incitement of immorality’.
·in May 2018, police detained the organiser of Beirut Pride overnight and pressured him to shut down Pride Week events that included a poetry reading, a karaoke night, a discussion of sexual health and HIV, and a legal literacy workshop.
·In 2017, police ordered Beirut’s Crowne Plaza hotel to cancel a workshop hosted by a human rights organisation that advocates on behalf of LGBTI individuals.
By national and particularly regional standards, Beirut is a relatively open environment for LGBTI individuals who are able to maintain a degree of anonymity impossible in more conservative parts of Lebanon. Gay bars exist, along with specific support groups for LGBTI individuals, although these generally keep a low-profile in an effort to avoid negative attention (see also Civil Society Activists). Opposition to LGBTI issues and individuals, however, remains prevalent across Lebanese society, particularly amongst men. The December 2013 UN Women survey on Gender Equality found that only 27 per cent of men (compared with 55 per cent of women) believed that homosexuals should be treated as a normal part of society: the majority of men believed that homosexuality was immoral and that it endangered the institution of the family. Discussions with in-country sources has confirmed that these societal attitudes remain prevalent, particularly in rural and more conservative areas, and that societal and familial ostracism is common. Some LGBTI individuals report being unable to access medical care as some doctors will refuse to see patients they believe to be LGBTI based on their appearance.
Local sources suggest that many LGBTI individuals either do not identify or keep a low profile in order to avoid societal and official discrimination and, potentially, violence. While local sources noted that individuals can move to other areas – particularly to Beirut – in order to seek safety, it was largely dependent on the individual’s financial ability to move from one area to another; and on the willingness of the receiving areas to accept them.
DFAT assesses that LGBTI individuals face a moderate risk of societal and official discrimination and violence. This risk is likely higher if the individual is visibly identifiable as LGBTI, particularly in the case of transgender women, or if they have other vulnerabilities (such as being poor, or female, or a refugee, or living in a socially conservative area). While an LGBTI individual may be able to lead a relatively open life in Beirut, they would still need to keep a low profile and would remain at risk of societal and familial ostracism.[1]
[1] DFAT Country Information Report – Lebanon, 19 March 2019, para 3.60-3.65
Following the hearing the applicant’s migration agent made a submission referring to additional independent evidence as to the treatment of LGBTI persons in Lebanon. The evidence is consistent with the assessment by DFAT. It makes reference to social stigma based on being LGLTI and repression, including by government authorities.
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the 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 make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Lebanon and accordingly his claims will be assessed against Lebanon.
The Tribunal explored with the applicant in the hearing his sexuality, including him growing up gay in Lebanon. The applicant indicated that he began to explore his sexuality with men while at university, including forming a connection with a man who was a neighbour. The applicant referred to other sexual connections with men in Lebanon. The applicant referred to his connections with men during his period employed as a [Occupation 1], including in other places in the world and relationships with [customers]. The applicant indicated that given the negative attitude towards homosexuality in Lebanon he had to keep his sexuality and activities very discreet. The applicant did not reveal his sexuality to his family and has also not done so from Australia.
Section 423A of the Act provides that if a new claim for protection that was not raised in the application before the primary decision is made, then the Tribunal is to draw an inference unfavourable to the credibility of the claim if the Tribunal is not satisfied that there is a reasonable explanation as to why the claim was not made before the primary decision was made.
The Tribunal therefore explored with the applicant in the hearing the late provision of this claim the day before the Tribunal hearing. In response, the applicant referred to wanting to be discreet and private in relation to his sexuality. The Tribunal noted to the applicant that it might have thought the applicant would have overcome his reluctance to reveal his sexuality given its potential importance in providing a successful ground for a protection visa, and to be able to reside safely in Australia.
The applicant maintained his significant reluctance to reveal this information. The Tribunal questioned the applicant as to what therefore had prompted him to change his mind and to reveal this information. In response, the applicant indicated that it was suggested to him by the person who had written the support letter on behalf of the applicant in relation to them having had a relationship since 2012. The applicant indicated that this person was also discreet in terms of his sexuality, but he had persuaded the applicant that it could well be a ground on which protection would be owed.
On the evidence, including convincing and credible evidence provided in the hearing, and documentary evidence of communications the applicant has had over time with men he has been in a relationship with in Australia, which clearly indicate that they have been in a sexual relationship, the Tribunal is satisfied that the applicant is homosexual, and has been so since his youth.
Whilst it is of surprise to the Tribunal that the applicant would not have overcome his reluctance to reveal this information because of it quite potentially successfully founding a claim for protection, the Tribunal does accept that the failure to make such a claim was based on a deep reluctance on the part of the applicant to disclose his sexuality. This reluctance is not inconsistent with the cultural approbation towards homosexuality in Lebanon. Considering all of the evidence and the applicant’s explanations, the Tribunal is satisfied that the applicant has a reasonable explanation for not previously raising this claim.
The DFAT assessment extracted in this decision indicates that there is a moderate risk in Lebanon of societal and official discrimination and violence towards LGBTI individuals. Whilst the situation in Beirut is better in terms of the prospect of leading a relatively open life, it is still indicated that a low profile would need to be maintained in Beirut with a remaining risk of societal and familial ostracism.
This is all consistent with evidence provided by the applicant as to the need to be discreet in relation to his sexuality, and having to continue to do so with the risk of what he might otherwise face, if he was not discreet.
Based on the independent information, including the DFAT assessment, the Tribunal is satisfied that the applicant faces a real chance of serious harm in the whole of Lebanon based on being a member of a particular social group, namely gay men. The risk applies, in the Tribunal’s view, to the applicant’s home area as well all parts of Lebanon, including Beirut, even though there is a little more tolerance in Beirut, based on the DFAT assessment and other independent evidence provided.
The Tribunal considers that the serious harm that the applicant has a real chance of facing includes significant physical harassment and/or significant physical ill-treatment. The Tribunal considers that the reason for the harm, namely the applicant’s sexuality, would be the essential and significant reason for the harm. The Tribunal considers that the persecution would be systematic and discriminatory.
The Tribunal has considered if effective protection measures are available to the applicant in Lebanon as required by s.5LA. Given the harm that the applicant fears as a gay or bisexual man is from the state (among others) and the country information set out above indicates that sometimes state apparatus are the perpetrators of harm against LGBTI individuals in Lebanon, the Tribunal is not satisfied that the state, party or organisation is willing and able to offer protection. The Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant by the state, party or organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Lebanon for the purposes of s.5LA(2).
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
For these reasons, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) and that the real chance of persecution relates to all areas of Lebanon. The applicant therefore meets the refugee criterion.
On this basis, it is not necessary for the Tribunal to determine claims made based on the applicant’s political activity and harm claimed to have been suffered on this basis. However, the Tribunal does note credibility concerns in relation to this evidence. This includes on the basis that the applicant’s initial written claims only include difficulties during his time at university, which is inconsistent with evidence in the interview that the first instance of harm suffered as a result of his political views occurred in November 2010, after he left university. Further, the written claims make no mention of this instance or, as articulated in the interview with the delegate, and in the hearing of an incident in 2011 when the applicant’s friend was hit on the head in an altercation, including involving the applicant, in which police were called. Neither do the written claims make reference to events provided by the applicant in the interview with the delegate of two occasions in 2012 when threatening individuals on the applicant’s street were behaving in a manner that caused the applicant to call the police on both occasions.
Further, the applicant’s evidence of police being called is not consistent with the written claims that he did not seek help from authorities as the Lebanese government is openly corrupt and do not act in the people’s best interests. In the Tribunal hearing, the applicant sought to explain this by indicating that police do not help when the victim calls the police, but only do so if non-involved witness makes the report. This is not consistent with the applicant’s evidence that he himself called the police when he felt threatened on two occasions.
Further credibility concerns in relation to political claims are as a product of the very significant delay from arrival in Australia in September 2012 until 2 February 2016 in making the application for protection. This application was only made after the applicant had exhausted all options in relation to the refusal of a student visa. In response, the applicant indicated that he only, at this later point, decided to seek protection based on what had happened to him previously as a result of his political involvement. The Tribunal maintains concerns about the applicant’s credibility as a result of the significant delay in seeking protection.
The cumulative impact of all of these credibility concerns have made the Tribunal sceptical and probing in terms of the applicant’s last-minute claim to, in fact, need protection, based on being homosexual. However, for the reasons indicated, the Tribunal is satisfied that the applicant is gay, which is supported by convincing and probative evidence, and does accept the applicant’s explanation for not previously making these claims.
For the reasons given above, the Tribunal is 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David McCulloch
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 5364

29 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice