1711023 (Refugee)

1711023 (Refugee) [2018] AATA 2457 (12 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711023
COUNTRY OF REFERENCE:                  Iran
MEMBER:Michael Hawkins
DATE:12 June 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2018 at 9:03am

CATCHWORDS
Refugee – Protection visa – Iran – Temporary protection visa – Provided false information – Claimed to be a Stateless Faili Kurd – Christian convert – Religious calling to ‘tell the truth’ – Disposed of identity documents – Grant of visa prevented by s 91WA – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA , 36, 46A, 65, 91WA, 197AB, 189, 438, 499
Migration Amendment (Protection and Other Measures) Act 2015, s 2
Migration Regulations 1994, Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
MIAC v MZYYL [2012] FCAFC 147
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 May 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 Iran, applied for the visa on 9 July 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Relocation
Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
State protection
Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
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 the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.
Background (as claimed in Protection Visa Application Form:
The applicant is a [age] year old man from the city of Baghdad, province of Baghdad, Iraq.
The applicant is married and has two children.
The applicant is of the Muslim faith, is of Kurdish ethnicity and speaks Farsi, Kurdish and English.
The applicant states his father is deceased, and his mother [and siblings] live in Iran.
The applicant claims he is Stateless.
The applicant attended and completed Primary, Secondary and High School in Iran, from [date] to [date] inclusive.
The applicant attended a Technical and Vocational School from [date] to [date].
Since completing school he has worked as an [occupation].
Background (Immigration)
On 8 February 2011, the applicant arrived in Australia on [Vessel code name deleted]. He was accompanied by his spouse ([Boat Id deleted]) and children ([Boat Id deleted] and [Boat Id deleted]). The applicant and his family members were detained under s 189 of the Act.
On 10 February 2011, the applicant took part in an Entry Interview.
On 10 May 2011, the applicant submitted a claim for Protection Obligation Evaluation (POE) outlining his circumstances in Iran.
On 15 May 2011, the applicant was interviewed in relation to his protection claims.
On 9 June 2011, the applicant (and his family members) was found to be a refugee and owed protection in Australia.
On 24 June 2011, the applicant and his spouse were both cleared through a security checking process.
On 1 September 2011, a new security check was initiated after adverse information was received in respect of the applicant.
On 8 September 2011, the Minister intervened under s197AB of the Act to place the applicant and his family members into community detention.
On 22 February 2012, the applicant's spouse and children were granted permanent protection visas.
On [date] May 2013, the applicant was convicted in [Australian city 1] Magistrates Court of failing to give way at an intersection and driving without a license. He was fined $350 and placed on a six month good behavior bond.
On 31 January 2014, the applicant was in community detention and his personal details contained on data was subject to a privacy breach through the department's website in February 2014.
On 04 June 2015, the Minister decided to remove the bar at s46A preventing the applicant from lodging a further application.
On 09 July 2015, the applicant lodged a valid application for a Temporary Protection (XD 785) visa.
On 8 November 2016, an Identity Assessment Report concluded that the applicant's claimed Identity as a stateless Faili Kurd was not supported. The report noted various inconsistencies in family composition, language ability, educational attainment and mode of departure which casts doubts on the applicant's claims.
On 23 March 2017, the applicant was interviewed by the delegate in relation to his claims for protection.
Background (as discussed with Delegate)
Extracted from decision of delegate dated 9 May 2017. The decision was included by applicant with his review application form.
The applicant in his various PV interviews has claimed that he was a Stateless Faili Kurd from Iran. I referred the applicant that on 8/11/2016 an Identity Assessment Report concluded that his claimed identity as a stateless Faili Kurd was not supported. I put to him that the report notes various inconsistencies in family composition, language ability, educational attainment and mode of departure which casts doubts on his claims. The applicant asked for a 'natural justice' break to discuss this matter with his migration agent. After the 'natural justice' break the applicant's representative stated that the applicant preferred to postpone the interview until the evidence has been checked by his migration agent and he could respond to the adverse information. I informed the applicant that I was unable to postpone the interview but would provide sufficient time to his representative to provide a written submission in regards to the adverse information put to him. The applicant and his representative agreed to continue with the interview. The applicant insisted that he was a 'Stateless Faili Kurd' from Iran.
The applicant was referred to his Entry Interview on 11/2/2011 and his claim about number of his siblings. He stated he has [several siblings]. He was asked how many of his siblings were in Australia. He stated two of his brothers reside in Australia and their names were [Mr A] and [Mr B]. He stated [Mr B] lives in [a particular city in Australia] and [Mr A] lives in [Australian city 1]. I put to the applicant that it was the first time he has declared that he has two brothers in Australia. The applicant stated because he was afraid that if he declared his brothers were in Australia, it would negatively impact his visa application.
The applicant was asked about his highest levels of education in Iran. The applicant stated he had up to high school education. He stated he did not finish high school and attended only up to [a certain grade]. He was asked the reason that during the Entry Interview he declared he did not have any education. The applicant stated he did not recall if he made such statement and it was a mistake. He was asked what identity documents he was issued in Iran. The applicant stated he believed he was given 'Birth Certificate' and later on was issued 'National ID Card'. I asked the applicant why he as a Stateless person was issued documents that were issued only to the Iranian citizens. The applicant stated he has provided false information about his identity and he was in fact an 'Iranian citizen'. He stated he is a Faili Kurd but an Iranian citizen and his previous claim that he was a 'stateless' was false.
I asked the applicant to reconfirm his statement that he was not a 'Stateless' but an 'Iranian citizen'. The applicant stated that he was an Iranian citizen and his claim of being stateless was false. The applicant was asked how he obtained Iranian citizenship. The applicant stated that he was born in Iran but parents were from Iraq and after few years his parents were granted Iranian citizenship. The applicant undertook to provide copy of his Birth Certificate, National Identity Card and Driving Licence. On 5/04/2017 the applicant through his representative provided a copy of his Iranian Birth Certificate. I note that according to his Birth Certificate" his full name is '[applicant name]', his date of birth is [date of birth]and he is born in [in a village] in 'llam' province, Iran.
I accept that the applicant is also known by the nick name [Alias 1] and [Alias 2], although they are not his actual names. I consider that the applicant has tried to deceive the department as to his actual name.
I however accept that he has been forthright about his real identity during the interview and supported this claim by providing his Iranian Birth Certificate. I consider the name [Alias 3] and [Alias 2] as his alias.
Claims:
Claims mentioned at Arrival Entry Interview
The applicant stated that his family were expelled from Iraq when he was a small child, and that he has lived in Tehran as a stateless person ever since.
He stated he experienced numerous problems: limited access to employment, housing, education, inability to obtain a drivers licence, travel document, or to open a business. Additionally he fears harm from the Basij who have stopped him for identity checks.
He stated that he and his family members obtained a false Iranian passport through a smuggler which they used to leave Iran in October 2010 and travel to [Country 1].
They remained in [Country 1] for around three months before boarding a boat to travel to Australia.
Claims raised in Protection Visa Application
The applicant and his spouse believe they would not be afforded due recognition by State
authorities in Iran in administrative and legal matters, nor receive any protection by law enforcement agencies and other institutions of the Iranian Government, owing to their ethnicity as Kurdish Faili and their statelessness.
Both applicant and his spouse had no access to state education and were schooled privately, and not afforded any documentation to verify completion of their studies. Their children are schooled at a cost greater than the cost for Iranian citizens and their children will not be afforded the right to attend university as they will not be able to obtain the requisite entry documentation.
Both applicant and his spouse have no entitlement to lawful employment in Iran, nor the right to_. own land or operate a business of any kind in their own right; they are consequently unable to earn a livelihood by any legal means, leaving them vulnerable to exploitation by employers or in a situation where they cannot be employed sufficiently to sustain themselves.
The applicant has been forced to work illegally owing to statelessness and ethnicity and has been exploited by his employer. His wife has been employed casually and illegally as a [occupation], often having to pretend to be a customer to avoid the scrutiny of Iranian government authorities during spot checks.
The applicant's wife is unlikely to be able to continue this facade without facing harm from the authorities and her only alternative is to cease working so as to avoid attracting the attention of state actors who seek to harm her, such as the Basij. They are not eligible for social security, nor any other form of income or financial support such as cash allowances being issued by the Iranian Government to citizens of Iran to compensate the population for the removal of subsidies on basic goods; consequently, they would have no lawful capacity to subsist, nor should they be expected to tolerate the deprivation of civil rights as outlined above.
The applicant's wife has a [medical] condition and each treatment costs her one month's salary every two or three months. They are not eligible for the public health insurance scheme in Iran and are be unable to earn a sufficient income to afford necessary private medical treatment, therefore cannot subsist in Iran.
Their marriage is not recognised under Iranian law and neither are their children by virtue of their birth to stateless parents. They have attempted to obtain documentation for their children from the authorities many times, but were refused owing to their statelessness.
In Iran, the applicant and his spouse could face harassment, extortion, intimidation and abuse by members of the Basij (a voluntary paramilitary body sanctioned by the Iranian Government, responsible for the enforcement of domestic security, public morality and the maintenance of order) and the Ettela'at (Intelligence agencies), and could potentially be subjected to arbitrary arrest, detention and serious mistreatment.
As a member of an ethnic minority in Iran, their ability to exercise social and cultural rights — including participation in traditional Kurdish festivities, and the use and preservation of the Kurdish language — are restricted by the Iranian Government.
The applicant and his spouse had a green card and then a white card, which they instructed was worthless and did not afford them or their children any of the rights available to Iranian citizens. They stated that having a green or white card had caused problems for them, when they were stopped by the Basij and humiliated owing to their ethnicity and statelessness. They could not complain to any authorities.
Claims raised at interview with delegate:
The applicant claimed he was never tortured or persecuted by the Iranian government but was always discriminated and harassed because of his Faili Kurdish background.
The applicant claimed that many times at work he was labelled as spy by co-workers who were members of the Basij.
The applicant stated that to avoid being mistreated as Muslims in Australia, he and his family decided to change their religion. He claims they have converted to Christianity.

The applicant claims he will be persecuted as a non-practicing Muslim in Iran.
The applicant claims he will be persecuted as a failed asylum seeker.
The applicant claims he will be persecuted as being imputed as a spy because of his residence in a western country.
Claims raised in Representative’s Submission:
The applicant claims he will be persecuted as an Iranian Kurd.
The applicant claims he will be persecuted as a Christian.
The applicant claims he will be regarded as a failed asylum seeker and will be imputed as being a spy.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
§The applicant’s protection visa application form completed and signed on 16 June 2015, lodged on 9 July 2015 (“visa application”);
§Submission from the applicant dated 19 March 2018;
§Letter of support from church leaders 21 March 2018;
§Submission by representative dated 21 March 2017 (sic);
§The applicant’s identity documents being certified copy of a birth certificate;
§The protection visa decision record (‘delegate’s decision record’) of 9 May 2017;
§The review application form which included a copy of the delegate’s decision record;
§Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Iran, published on 21 April 2016.
Country of reference / receiving country
The applicant now claims to be an Iranian national. Based on the copy of his identity documents provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Iran is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 9 April 2018. He was represented. The hearing was assisted by an interpreter in the Farsi and English languages.
The applicant had provided supporting documentation to the Tribunal on 29 March 2018, which included a Statement from the applicant; copy of a letter from his current Pastor of [a] Church, dated [March] 2018, and a detailed submission from his representative.
The Tribunal discussed the documentation submitted at the hearing, which included baptism certificates of his son and wife and some social media exchanges that were not translated.
The Tribunal confirmed with the applicant that the protection visa application form was completed by the applicant himself, was in his own handwriting, and was signed by him. The applicant confirmed that it was.
The Tribunal read to the applicant his claims as set out in his visa application form and as summarised in paragraphs 52 - 60. He confirmed that the claims were accurate.
The Tribunal asked the representative if he felt the claims were accurately summarised as stated. The representative took issue with the claim summarised in Paragraph 54. He submitted that the claim should reads that the applicant became a Christian due to his genuine belief in Christianity. The Tribunal noted the amended claim.
The Tribunal asked the representative whether he had a claim to make in relation to the 31 January 2014 data breach, as it had noted that it had not been referred to again. The representative confirmed that it was a claim, that there was a danger to the applicant in returning to Iran given that the Iranian government may have accessed the website at the time, and that the Iranian Government is not likely to confirm whether it had or hadn’t.
The Tribunal explained to the applicant that it wanted to confirm a couple of matters raised by him in his statement submitted last week.
The Tribunal read to the applicant from his 19 March 2018 statement (page 1) the following: “Therefore, I decided to go and declare my true identity to the Department of Immigration and Border Security. I wanted to tell the Department the truth because I was very unhappy about the lie that I had told. …… I volunteered the true information and provided my Iranian documents.” The Tribunal asked the applicant if this was accurate and truthful. The applicant confirmed it was, and went further to say that it was a consequence of him finding Christianity that he wanted to tell the truth.
The Tribunal read to the applicant the following extract of the delegate’s decision:
“I referred the applicant that on 8/11/2016 an Identity Assessment Report concluded that his claimed identity as a stateless Faili Kurd was not supported. I put to him that the report notes various inconsistencies in family composition, language ability, educational attainment and mode of departure which casts doubts on his claims. The applicant asked for a 'natural justice' break to discuss this matter with his migration agent. After the 'natural justice' break the applicant's representative stated that the applicant preferred to postpone the interview until the evidence has been checked by his migration agent and he could respond to the adverse information. I informed the applicant that I was unable to postpone the interview but would provide sufficient time to his representative to provide a written submission in regards to the adverse information put to him, The applicant and his representative agreed to continue with the interview. The applicant insisted that he was a 'Stateless Faili Kurd' from Iran.”
The Tribunal noted that the next paragraph of the decision referred to the applicant’s misstatement of how many brothers he had and that the following paragraph dealt with the misstatement of his education qualifications.
Then the decision went on….. “The applicant stated that he had provided false information about his identity and he was in fact an ‘Iranian citizen’. He stated he is a Faili Kurd but an Iranian citizen and his previous clam that he was ‘stateless’ was false.
The Tribunal queried the applicant as to how he could now state that he had volunteered the truth about his nationality. It appeared that he had had the truth extracted from him by virtue of the delegate putting to him many forms of adverse information.
The representative intervened and suggested that the question be framed as “when did the applicant disclose the truth of his nationality to the department”.
The Tribunal suggested that it was pretty clear from the record of the delegate that it was ultimately disclosed during the interview with the delegate, but it obliged and reframed the question for the applicant. The applicant said he disclosed it to IMMI and that he had decided to tell the truth before the interview. He said the truth came out in questions, not in the form of documents. He said he wanted to provide the documents and did not want the uncertainty to continue. The representative had a discussion with the applicant in Farsi. The representative was then satisfied that the interview with the delegate and the applicant’s attendance on IMMI was the same day.
The Tribunal asked the applicant again to explain his statement. He replied that he believed the delegate had said to him that as he had been truthful and had provided his documents, he would be regarded as having volunteered. The Tribunal suggested that what the delegate meant was as he provided in his decision, that “….. I consider that the applicant has tried to deceive the department as to his actual name. I however accept that he has been forthright about his real identity during the interview and supported this claim by providing his Iranian Birth Certificate. I consider the name [Alias 3] and [Alias 2] as his alias.”
The Tribunal then referenced another section of his statement provided shortly before the hearing. In it, the applicant stated that he met [Pastor C] as a result of a car accident. He then stated “Through this, we became closer friends and then I asked for a Bible which he gave me. I started going to his church irregularly…. I started bible classes about a month ago.” The Tribunal asked the applicant whether this was accurate. The applicant said it was.
The Tribunal then referred to the letter the applicant had submitted from [Pastor C]. In the letter, the Pastor stated “I realised he (applicant) is from Iran too so I gave him my Farsi bible. I don’t normally part away from my boible but this time I had a conviction from the Holy Spirit to give my Bible away. He told me, my wife and I were actually looking for a Farsi bible and now you are offering me your Farsi bible!”
The Tribunal asked the applicant which was the accurate account. Did the applicant ask for the bible or did the pastor offer it first. The applicant replied replied that he asked for it and the Pastor gave it to him. The Tribunal asked the applicant was the Pastor’s recollection inaccurate. The applicant then said that he and the Pastor spoke about Christianity and the Pastor gave it to him. The Tribunal pointed out the inconsistency. The applicant then said that he told the Pastor that he was looking for a Farsi bible, and the Pastor gave it to him.
The representative expressed his concerns about the Pastor’s statement – it being a recollection of an event some three years earlier and the fact that the letter did not give a full account of the discussion. The Tribunal stated that is accepted the point, but noted the emphasis the Pastor had used, as if he had recalled the coincidence. But in any event, the Tribunal was more interested in the fact that the applicant had given it three different responses to the same answer.
The Tribunal noted that the applicant’s departmental file included a certificate and notification regarding the disclosure of certain information under s. 438 of the Act. The reason given for why disclosure of the information subject to the certificate would be contrary to the public interest is that the folio contains information relating to ‘an internal working document and business affairs’. The Tribunal had allowed the representative to view the certificate and discussed the contents of the certificate with the representative.
The Tribunal gave consideration to the validity of the certificate and on the basis that a public interest reason has not been identified for the relevant folios, finds the certificate invalid. The folios the subject of the invalid certificate had been considered and discussed at length with the applicant by the delegate, so the Tribunal is satisfied that the applicant is well aware of the contents of the folios the subject of the certificate.
The Tribunal clarified with the applicant some of his background information and recounted the information contained in paragraphs 22 – 36 above.
The Tribunal explained that it would like to discuss the circumstances of the applicant’s departure from Iran and arrival in Australia.
The applicant stated that he flew from Iran to [Country 1]. The Tribunal confirmed that he had a valid passport to depart Iran. He said he did. The Tribunal asked did he have a valid visa to enter [Country 1]. He said that he got a visa when he arrived in [Country 1] - a tourist visa.
The applicant explained that his trip to [Country 1] was pre-arranged. He explained that one of his brothers worked in [Country 1] assisting a people smuggler. His job was to collect people at the airport and deliver them to the smugglers and do shopping and things like that. He stressed that his brother was not an organiser. He said his brother introduced him to the smuggling operation. He said he was told to act as a tourist until they were told they were leaving.
The applicant said that they had a three to four hour car trip across [Country 1] to meet the boat. They left in the middle of the night.
The Tribunal recalled that the applicant had subsequently provided his birth certificate and Identification documents to the department. The Tribunal asked whether he was carrying them with him. He said he was not – he had them sent from Iran when he was required to provide them.
The Tribunal asked the applicant about his passport and where it was. He said the passports of everyone on the boat were collected by one of the smugglers on the boat and they were torn up and thrown overboard.
The Tribunal confirmed with the representative that it understood this evidence as the applicant having disposed of, or having caused the disposal of, his passport and that the passport was destroyed. The Tribunal advised the applicant and the representative that it would now need to consider the possible application of s.91WA of the Act.
CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA
The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of or destroyed an identity document.
Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added). Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant: first, has a reasonable explanation for the provision, destruction or disposal; and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act. Section 91WA is extracted in the attachment to this decision.
The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[1] including this application.
Did the applicant dispose of or destroy documentary evidence of his identity?
[1] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015
The applicant gave evidence that he handed over passport to one of the smugglers on the boat when the smuggler asked for it.
The applicant stated that he saw the smuggler tear up his passport and throw it overboard.
Having considered all of the evidence the Tribunal finds that the applicant caused the disposal of his passport being documentary evidence of his identity, nationality or citizenship.
Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?
The Tribunal asked the applicant whether he had an explanation for disposing or causing the disposal of his passport.
The applicant replied that he was mostly scared as he had been told that the smuggler could not get them there if they didn’t turn over their passports. The Tribunal asked the applicant what it was that he was mostly scared of. He said he was scared of the smuggler as he had to listen to him and that there were no police on board to help them. He said the smuggler took all of their [Country 1] currency from them telling they would not be able to use it in Australia.
The Tribunal asked the applicant whether he had explored legal options of coming to Australia. Did he inquire about visas to Australia? He said he had not.
The Tribunal suggested to the applicant that he knew what he was doing in coming to Australia in this way. That it was not legal. He agreed.
The Tribunal suggested that he knew he was taking a great risk in travelling to Australia in this way. He agreed.
The applicant had stated in his statement that all of those on board had discussed how they would claim they were stateless. The Tribunal discussed this with the applicant. The Tribunal again suggested that he knew what he was doing was not legal. He agreed.
The Tribunal discussed with the applicant that he knew he was disposing of his passport to hide his true identity. The applicant said his name would identify him as Kurdish. The Tribunal noted this and replied that this was the reason he disposed of his passport – to hide his identity in order to claim that he was stateless, a claim he maintained right through the process until he reluctantly admitted the truth to the delegate in the interview in March 2017.
The representative responded that the applicant was under duress at the time of handing over his passport. The people on the boat were authority figures and he had no option.
The Tribunal advised the applicant and the representative that on the evidence presented it was not persuaded as to the reasonableness of the explanation for disposing of the passport. It advised that the outcome of the hearing was somewhat dependant on the Tribunal’s finding on this aspect. It invited the representative to make a submission on this issue. It suggested that it would not consider further the claims of the applicant until the receipt of, and the Tribunal’s consideration of, that submission. If the Tribunal was satisfied as to the explanation, it would invite the applicant to a further hearing during which the applicant’s claims would be further considered. But if it was not satisfied with the reasonableness of the explanation, it would make a decision accordingly.
On 11 April 2018, the representative emailed a submission to the Tribunal. The Tribunal has extracted the relevant sections below:
Confiscation of Travel Document
The Member raised the concern that the applicant may have purposefully destroyed or discarded his travel document because he knew it would be beneficial to his claims for asylum to be undocumented.
The applicant claims that he was forced to give his passport to one of the men on the boat (the applicant does not know whether this man was a people smuggler, a crew member or the captain of the boat). This man demanded that all asylum seekers on the boat hand over their identity documents and the applicant states that everyone did so. He also followed the instructions and gave his document away not knowing for what purpose he had to surrender his passport. He personally did not see what happened to the documents, although he was told that they were destroyed.
We submit that it is unreasonable to think that the applicant Intentionally handed his passport to the smugglers to be destroyed so that his Iranian citizenship would remain hidden. The removal of the passport by the smuggler happened to everyone on board, and at the same time.
As per the AAT's Guidelines on the Assessment of Credibility, the Tribunal "does not have to refuse the visa if it is satisfied that the applicant has a reasonable explanation for providing the bogus document or destroying the documentary evidence" [emphasis added][2].We submit that the applicant has provided a reasonable explanation for the destruction/loss of his passport as detailed below.
[2] Administrative Appeals Tribunal, Guidelines on the Assessment of Credibility (July 2015) page 9 < are a number of reasons discussed below under the relevant headings which support the applicant's contention that he did not purposefully discard his passport for the sake of improving his claims for asylum but rather out of fear for his and his family's safety on board that vessel. The applicant claims that he was fearful of causing any trouble (for instance, by not obeying the order to hand over his passport) in case he and his family were harmed during the voyage or sent back to [Country 1]. The passports were confiscated from the asylum seekers on the boat during the first day of the journey.
Timing
We submit that the applicant could have destroyed or discarded the passport at any time after landing in [Country 1] prior to handing it over on the boat.
The fact that he did not destroy it or discard it earlier shows that he did not intend to destroy the passport for the purpose of bolstering his protection claims. The applicant had the passport in his possession until the document was confiscated. If the applicant had the intent to destroy the document so he could claim to be stateless, we submit that he would have done so earlier and had the opportunity to do so on multiple occasions during the time prior to boarding the boat
At this point, he felt he had no choice but to give his document to the man demanding it as he was fearful for the safety of himself and his wife and two children.
Fearful for his and his family's safety
We submit that, as previously stated, the applicant was fearful for his safety and the safety of his family. Considering that the men running the boat were the only authority in those circumstances, the applicant felt he had no other option but to obey their direction and hand over his passport.
The applicant feared that he would place himself and his family in danger if he refused to give his passport away. He feared that he and his family might face harm at the hands of the people smugglers or that they may be placed in a smaller boat and returned to [Country 1].
Considering the journey that the applicant and his family had already endured to get to that point, the applicant felt he could not jeopardise their boat journey by not handing over his passport. He gave the man his passport as he felt it was his only choice.
Destroying asylum seeker's documents is commonplace
We submit that this is not an isolated event that happened only to the applicant. In fact, we submit that the destruction and confiscation of asylum seekers' travel and Identity documents by people smugglers is a common occurrence.
According to a number of articles, it is "well known that agents or 'people smugglers' who arrange unauthorised passage for refugee will confiscate or order identity papers destroyed".[3] This could be for a number of reasons but likely because the people smugglers "who want to ensure there is no paper trail that might lead authorities to their eventual arrest"?
[3] Jay Fletcher, "Busting three asylum seeker myths", Greenieft Weekly (online) 11 July 2013 < Refugee Action Coalition, Why Do Asylum Seekers Destroy Their Passports? (.d.) < is also stated by the Refugee Advice & Casework Service ("RACS") that:
People smugglers may confiscate documents or require people to destroy their documents In order to protect smuggling networks. In circumstances in which documents are retained by smugglers, the asylum seeker may be Instructed by the people smuggler to tell Australian officials that the asylum seeker discarded the document.[4]
Furthermore, the applicant states that everyone on the boat gave up their documents when asked. There were approximately 50 asylum seekers on the boat. It was not only him whose passport was confiscated by the people smugglers. We submit that it is not unusual for an asylum seeker to lose their identity documents, particularly in cases such as this when the people smugglers confiscate those documents from all asylum seekers on board.
Obeying instructions
By giving his passport to the man who demanded it, the applicant was only obeying the instructions of the authority on the boat. Considering that the applicant was fearful for the safety of himself and his family and that all the other asylum seekers were also giving their documents up, it Is not unreasonable to see that the applicant was doing what he believed would ensure the safety of his family on board.
As stated previously, he could have done so at any other moment prior to having it confiscated. This demonstrates that his actions were the direct result of the orders of the man on the boat. Taking into account the circumstances at the time, it is not unreasonable to submit that the applicant was under duress as he believed his only option was to obey the instructions of the man.
Lack of knowledge in regard to documented or undocumented claims
Finally, we submit that the applicant was under the belief that his claims for protection were based on being a Faili Kurd; he did not, at that time, have any knowledge about the difference between undocumented and documented Faili Kurd claims. He was unaware of the impact that having (or not having) identity documents could have on his protection claims and he only learnt that it was potentially more beneficial to his claims to not have documents once he was in detention. It was here that he learnt claiming to be stateless and undocumented may provide a better chance of resulting in the grant of a protection visa.
We reiterate the fact that the applicant could have destroyed or discarded his passport at any point prior to having it confiscated by the people smugglers on the boat. The fact that he did not do so shows that he did not intend to destroy or discard it for the purposes of improving his chances at gaining asylum In Australia on the basis of being a stateless Kurd.
The applicant never received advice from a lawyer about his immigration case and, therefore, never received proper advice in regard to how to complete the application form and how to apply for a refugee visa based on the real circumstances. In his case, if they had designated his wife as the main applicant, his visa opportunity as a dependent member of the family would greatly improve.
[4] Refugee Advice & casework Service, Migration Amendment (Protection and Other Measures) Bill 2014 Submission by the Refugee Advice & Casework Service (Aust) Inc. (4 August 2014) page 10 < type="1">
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.
Throughout the hearing, the Tribunal emphasised to the applicant that given the history of his claims, the fact that he had recanted his original claims and then made a new set of claims, his credibility would be a serious consideration in the success or otherwise of his visa application.
The Tribunal considered the applicant’s reply that he never received advice from a lawyer about his immigration case, and therefore never received proper advice in regard to how to complete the application form and how to apply for a refugee visa based on real circumstances. The Tribunal is of the view that whether he had received advice or not, does not detract from the requirement, clearly stated on the application form, that he sign the form having stated the truth. The applicant has admitted that he has previously lied, and lied about his claims.
To that end, the Tribunal took the applicant to task over his assertion in his most recent statement (19 March 2018) that he had voluntarily come forward to admit to the “lie” in his claims as previously stated to the department. The applicant even told the Tribunal that he wanted to fix the lies he had told as it was a consequence of him finding Christianity that he wanted to tell the truth. The Tribunal asked the applicant whether this was the truth. The applicant assured the Tribunal it was. The Tribunal then took the applicant through the decision of the delegate, highlighting that the applicant had been anything but a volunteer, that the “truth” had been extracted from him by the delegate putting a series of forms of adverse information to him. It was only then, that he came clean and told the truth, at which time the delegate gave the applicant time to amend his claims.
The Tribunal also queried the applicant over a lesser matter about his meeting and acquiring a bible from his pastor. The Tribunal asked the applicant three times how he had come to have the pastor’s bible, and each time received a different explanation as to how he acquired it.
The Tribunal accepts the representative’s submission that perhaps the pastor’s recollection of the event was not accurate, and that the pastor’s letter may not be a complete account of the conversation, but as the Tribunal pointed out to the representative, that notwithstanding that, the applicant had still proceeded to give the Tribunal three different versions of an explanation in circumstances that, the Tribunal would note, were hardly a forensic examination.
The Tribunal had raised its concerns with the applicant about his credibility. The representative suggested that it was “the Iranian way”. Notwithstanding that, and the Tribunal took that remark in the spirit in which it was intended, the Tribunal had formed the view that the applicant had serious credibility concerns, and was one to embellish the truth and be selective with the truth.
This leads to the Tribunal’s assessment of the reasonableness of the applicant’s explanation for disposing of his passport. The Tribunal has considered the representative’s submission carefully. The applicant gave his passport to someone on the boat, whom he can’t remember, but the Tribunal accepts it was someone connected with the people smuggler. He disposed, or caused the disposal, of the passport.
The applicant did not attempt to travel to Australia legally. He did not make inquiry about obtaining legal visas. He knew that coming to Australia in the way that he did was illegal. The path through [Country 1] was intentional as was his intention to engage with a people smuggling operation. His brother was involved directly in such a business. He knowingly participated in the charade of acting as a tourist until they were called up to travel to Australia.
He embarked upon the journey by boat with people smugglers with his wife and children knowing the risks involved and willingly undertook them. He knew he was involved in a scam and that deception of the authorities would be involved by virtue of the fact that the whole operation was covert.
The Tribunal is satisfied that when the applicant was asked to hand over his passport, he did so willingly, knowing it was just another step in the pathway to getting to Australia illegally.
Notwithstanding that the representative has submitted that the applicant claims that once he was on the boat, he was subjected to duress, was afraid for his own and his family’s safety, was afraid of harm and felt he had no choice but to hand his passport over, the Tribunal does not accept that the applicant was at all fearful for his life or the safety of him or his family in obeying the instruction to hand over his passport. The applicant had stated in his written statement that everyone on board the boat had discussed how they would claim they were stateless. They did this before they had legal advice in Australia. The Tribunal confirmed specifically with the applicant that he knew that what he was doing was wrong, and that his entry would not be legal. The Tribunal discussed with the applicant that he knew he was disposing of his passport to hide his true identity. The applicant said his name would identify him as Kurdish. The Tribunal noted this and replied that this was the reason he disposed of his passport – to hide his identity in order to claim that he was stateless. The applicant did not have the opportunity to respond to the Tribunal’s concern, as the representative jumped in to answer on his behalf. But the applicant had already said that his name gave away the fact that he was Kurdish, and he had already admitted that he needed to hide the fact that he was Kurdish in order to maintain his story that he was stateless. And that was the priority of the applicant. The Tribunal is satisfied that the applicant was absolutely prepared to do what was required to protect his “non-identity” as a Kurd. Overlaid with this is the matter of the credibility of the applicant – an applicant who has admitted to lying in his first set of written claims, and then into his interview with the delegate, only coming clean with the truth when faced with incontrovertible adverse information as to his actual identity, and which into this hearing, he maintained he had then retracted voluntarily. The Tribunal finds that the applicant disposed of, or caused to be disposed of his passport as just another step in his illegal journey to Australia.
The Tribunal accepts that destroying asylum seeker documentation is common place, and that was the mischief that s.91WA was attempting to remedy in its enactment. It is the applicant’s contentions that this is due to the fact that people smuggler’s often confiscate and destroy documentation. The Tribunal acknowledges the articles referred to in the representative’s submission that this may be done, among other reasons, to protect the people smugglers. But as already found by the Tribunal, the applicant willingly handed over his passport to the smugglers, as it was just one other thing he had to do to get to Australia, on a journey that he knew was unlawful, to make claims about his identity that he knew to be false, and a position he was to maintain through interviews, application processes and even before the Department’s delegate.
The Tribunal is not persuaded by the argument that the fact that the applicant could have disposed of his passport at any time is somehow evidence that his disposing of the passport when he actually did was reasonable. The representative made an interesting submission that as he could have disposed of his passport earlier, but did not, is indicative that he did not willingly dispose of his passport, and he did not dispose of his passport for the purposes of strengthening his claims to be stateless or improving his chances of gaining asylum. The Tribunal accepts that the applicant may have had opportunity to dispose of his passport earlier. The fact that he didn’t, does not mean that he did not willingly hand it over later. The representative’s submission is an assumption. The applicant may have equally felt that he required the passport to prove his identity to the smugglers to gain access to the boat. Perhaps he didn’t want to leave evidence of his having been in [Country 1].
The Tribunal does not accept as significant the claim that the applicant had any knowledge about the difference of being a documented or undocumented Faili Kurd. The applicant knew he was involved in an illegal enterprise and was prepared to do what was required to achieve this end. The applicant had stated in his statement that all of those on board had discussed how they would claim they were stateless. The Tribunal confirmed with the applicant that he knew that what he was doing was not legal. The Tribunal discussed with the applicant that he knew he was disposing of his passport to hide his true identity. The applicant said his name would identify him as Kurdish. The Tribunal has discussed this and found that this was the reason he disposed of his passport – to hide his identity in order to claim that he was stateless, a claim he maintained right through the process until he reluctantly admitted the truth to the delegate in the interview in March 2017. Hiding his identity was his primary objective, and disposing of his passport was a step in evidencing his claims.
Accordingly, the Tribunal finds that the applicant does not have a reasonable explanation for disposing of documentary evidence of his identity, nationality or citizenship.
For the reasons given above, s.91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s.91WA.
The representative also made the following claim in submissions:
Claim as a Family Unit
The applicant and his family came to Australia as one unit with the wife and son as the main applicants, having had legitimate claims. They were recognised as refugees and granted permanent protection visas.
The applicant became the subject of a lengthy security check which resulted in the lapse of time during which time there was a change of law from permanent protection to the TPV programme. Not only was there a change in protection visa programmes, but the security check process became much more far-reaching.
The applicant was not granted a TPV because when he entered Australia he had not provided the correct information about his nationality as well as his brothers. He was later refused the visa.
We submit that splitting the applicant from his family would be acting in contravention of the Refugee Convention 1951, to which Australia is a party. Such an action would effectively constitute a breach of international law.
We further submit that the applicant's wife and children are suffering on a daily basis due to the current situation. It is inconceivable to permanently split the family apart by refusing the applicant a visa and deporting him while his family remains here in Australia under the protection of the Australian government.
Finally, considering that the applicant's wife had to be assessed as the main applicant, the applicant should have been granted a visa as a secondary applicant to his wife's application. We respectfully note that this can be corrected by the Tribunal.
The Tribunal notes the submission of the representative, but is of the view that it is unable to consider the application of the wife or any claim relating to a family unit, as the matter before it relates only to the application for review made by the applicant of his protection visa application. The Tribunal sympathises with the applicant in relation to the position of his family, but it has no jurisdiction to intervene in the matter of his wife’s separate application.
Overall conclusion:
For the reasons given above, s.91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s.91WA.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
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.
…

[2018] AATA 2457

12 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing