1711245 (Refugee)

1711245 (Refugee) [2021] AATA 636 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711245
COUNTRY OF REFERENCE:                   Morocco
MEMBER:Lilly Mojsin
DATE:10 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2021 at 5:00pm
CATCHWORDS
REFUGEE – protection visa – Morocco – business dispute with wholesaler – perceived as being involved in fraud – unable to repay the money owed – particular social group – victims of dishonest partners – victims of fraud – complementary protection criterion – state protection – criminal law and legal system – corruption and bribery – verbal threats from non-state actors – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 18 May 2017 to refuse to grant the applicant a protection visa [PV] under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Morocco, applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to Morocco.
The applicant appealed that decision, attaching a copy of the Department decision to his application for review.
The applicant attended a Tribunal hearing on 8 October 2020. The applicant was assisted by an Arabic interpreter.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PV application the applicant claims that in March 2012 he started working with a trader in Casablanca named [Mr A], and they later became partners in a business selling [specified goods], with [Ms B], a Chinese woman who lived in Morocco. He claims that they would get goods from wholesalers without paying, and after selling the goods they would pay the wholesalers back. His share in the trade reached about $120 000.
The applicant claims that in January 2015 [Mr A] and [Ms B] went to China to get merchandise to sell in Morocco. The wholesalers were owed about $1,158,319. [Mr A] and [Ms B] did not return when expected, they stayed in China for 2 months. [Ms B] escaped from China to Morocco and kept all the money for herself. [Mr A] returned to Morocco, located [Ms B] in Morocco, capturing and torturing her, and [Mr A] was apprehended by the police and imprisoned. This incident was published in the newspapers in Morocco.
[Mr A] confessed that he took the money from the wholesalers and he did not mention the applicant, so no criminal action was taken against him. The applicant lost the money he had invested in the company, his reputation and the trust of the wholesalers. He heard rumours that he was involved in the fraud, and he noticed people following him, and one of the wholesalers [Mr C] who was owed money, sent people to see if the applicant had the money which [Mr A] had cheated him out of. He claims that he felt unsafe and scared, and left Casablanca, where he was born and raised, and stayed with his brother in El Rabat for three months. He claims that he was depressed and lost, and his sister in Australia suggested that he return to Casablanca, sending him money to establish a new business.
He claims that he returned to Casablanca and opened a new business, thinking that everything had returned to normal and [Mr C] had forgotten him, however [Mr C] and other traders knew about his new business and thought he was using the money which his former partner, [Mr A], had cheated them out of. He claims that they started sending people to 'shadow' him, they began threatening him to return the money otherwise he would be killed. He received many threatening phone calls to return the money. He claims that he felt unsafe and feared for his well-being and went to hide at his brother's house in El Raba. He came to Australia in April 2016.
The applicant claims that people know he is in Australia and are convinced that he was involved in the fraud by [Mr A], and he has a strong fear for his safety and well-being in Morocco, because the wholesalers will follow him everywhere. He claims that he will particularly face persecution from [Mr C], who is strong and well-off and has connections with the police, he could easily bribe the government and cover-up criminal action taken. He claims he has heard of another person in Casablanca who went to jail after cheating wholesalers and was stabbed by the mafia in prison after refusing to return the money.
The applicant claims that his former business partners have cheated money from wholesalers, and people are convinced that he was involved in his former partner's fraud. He claims to fear for his safety and well-being in Morocco, because the wholesalers will follow him everywhere, and he claims to particularly fear [Mr C], a strong and well-off person who has connections with the police and could easily bribe the government and cover criminal action he takes against him.
Submitted to the Department was a translation of a 2015 newspaper report stating that [a named organisation] arrested a suspect, [Alias] and a Chinese man, for kidnapping and attempting to murder a Chinese woman because of a dispute over money regarding mediation in a commercial deal.
At the Tribunal hearing the applicant said that his family continues to live in Casablanca. He has a brother in Rabat and sister in Casablanca. He married in Australia, but he divorced his wife. He has a child in Australia. His sister lives in Australia.
Asked why he came to Australia, he said that difficult circumstances brought him to Australia. He said that he had a business and was a partner with another guy, this guy took his money as capital and went to China and never came back so that the applicant had a big problem. His partner was supposed to go to China for one month and he never returned, and all the people came to him. Those business people started claiming their money from him and they started to accuse him that he was their partner in stealing the money so he had to close the shop and had to live in Rabat. They continued to threaten him as an accomplice. There was one big business person, [Mr C], and he had a group of people, they were his gang. He was a wholesaler and people took from him all they needed. He started claiming he wanted his money back so he sent people and they stalked him and threatened him. He closed the shop and went to Rabat and they continued to threaten him.
The applicant then fled to his brother for 3 months. He stayed in Casablanca for 1 month and then went to his brother for 3 months. He thought there were no more problems, so he returned. It was a confirmation for other people that he was the one who stole the money. Those people were very strong, and the main reason was they pushed him to go to Rabat. He heard from his friends that they were after him and were stalking him and threatening him. This gang had sent other people to prison and they had connections.
Put that he was never physically harmed in Morocco and he agreed. But he was on the brink of being physically harmed because he was rejecting threats continuously and they sent a group of people to threaten him. This could be the last day of his life.
Asked if he reported to police, he said he did not because he did not think that things had reached that point. He was very scared, so he flew to his brother. Asked why he came to Australia as nothing happened to him, he responded that after staying with his brother he thought he had better move on. He returned to Casablanca, he started a new business.
They gave him an ultimatum for the money to be given back, it was around $1.5m. As he would never get that money, he closed the business and returned to Rabat where he stayed for 7 months. He was locked in the house and he never moved around. As many believed he had stolen in the other business, no one wanted to buy from him and he was not able to sell. He spoke to his sister in Australia and she suggested if he comes to Australia on a visitor visa and if granted to him, he could get a protection visa. Holding a Moroccan passport, he does not have access to many countries and he does not have anyone in Europe.
The threats commenced at end January February 2015. He moved to Rabat in February for 2 months. He went to Casablanca in May 2015. He returned to Rabat and never returned to Casablanca again. He started a new business at beginning of March 2015, it was called [Business 1], it was selling on line. He sold wholesale [goods] business. The [products] were obtained online and sold online. He was not able to purchase and not able to sell because the big wholesalers knew about his story.
Asked what he feared about returning to Morocco, he said the main reason was that he will never be able to return the money to these people. He left Morocco to visit his sister and that was some kind of confirmation that he had stolen the money.
Asked why he was not sued in the court for the money, he said that they did not sue as most of their trades are unlawful and they do not pay tax or duties and that is the reason they did not sue him.
He agreed that he was issued a passport [in] 2014, without a problem, and he was able to depart Morocco without any problems. He said that he is able to return to Morocco without any problems from the government. When put that he is able to report any problems to Moroccan police, he said they have strong connections with the police. He can never report them to the police. Police will not protect him. Put he never sought that protection, he said he did not.
Put Morocco has functioning police force and judicial system, he agreed. He said it is very corrupt. I discussed with the applicant Moroccan police, the Institution of the Mediator (national ombudsman) that helps to resolve civil matters. He said there is a law it is never enforced and never applied.
The applicant stated that the most important thing is his son and he does not think he can go away from Australia. He cannot return to Morocco as he does not have the amount of money that is being sought.
REASONS AND FINDINGS
On the basis of his Moroccan passport, I accept that the applicant is a national of Morocco and not national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Morocco. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Morocco is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
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. Similarly, the applicant’s claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The applicant is an ethnic Moroccan. He claims he was a victim of a fraud but he is perceived as being involved in that fraud and the persons who were defrauded, wholesalers and [Mr C], seek the money stolen, about $1 400 000. He is unable to repay that money to the wholesalers from whom he and his partners, [Mr A] and [Ms B] purchased goods. One of the wholesalers, [Mr C], has connections with the police.
A newspaper article provided by the applicant stated that [Alias] and a Chinese man had been arrested for the kidnap and torture of an unnamed Chinese woman in regard to a dispute over money in a commercial deal. I note the person arrested by the police is named [Alias], but as the applicant is not named in the article and as neither the Chinese woman is identified as [Ms B] nor is [Mr A] identified, I place no weight on this article as any evidence of the applicant’s claims.
I accept that the applicant claims to fear harm from wholesalers and [Mr C], who are owed money by the partnership of [Ms B], [Mr A] and the applicant. I accept the applicant has suffered financially. I accept that he has suffered a loss of reputation because suppliers and buyers, after the fraud became known, refused to deal with him. I accept that he is being pursued for the money defrauded by his former partners [Ms B] and [Mr A] and that he has been followed and threatened when he resided in Morocco. The applicant did not report the threats to the police.
The applicant does not claim that the harm feared is for reasons of his race, religion, nationality, or political opinion. I find that the essential and significant reason for the harm feared by the applicant is not for his race, religion, nationality, or political opinion.
When considering whether the essential and significant reason for the harm feared by the applicant is for his membership of a particular social group, I have considered whether the applicant belongs to a ‘particular social group’ as defined in s.5L of the Act. Accepting that ‘victims of dishonest partners’ and ‘victims of fraud’ are a particular social group, as defined by s.5L of the Act, I am not satisfied that the applicant’s fear of harm is for his membership of these particular social groups. The applicant was threatened and harmed by wholesalers and [Mr C] because he was perceived as being involved in the fraud and because he has been unable to repay the money owed. Therefore, he was threatened with harm for what he had done. I find that the essential and significant reason for the harm feared by the applicant is not for his membership of a particular social group.
Therefore, I am satisfied that the applicant did not suffer serious harm for reasons of his race, religion, nationality, membership of particular social group or political opinion in Morocco.
I am required to consider if the applicant, an ethnic Moroccan, who owes a debt in Morocco to wholesalers and a [Mr C], would suffer serious or significant harm in the future if he were to return to Morocco. The applicant does not suggest that he would re-open his business.
As the applicant did not suffer harm in Morocco for a refugee reason mentioned in s.5J(1)(a), I find that the applicant does not have a real chance that, if returned to Morocco, he would suffer persecution for one or more of the reasons mentioned in s. 5J(1)(a).
I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The applicant fears harm for a debt and a perception he was involved in a fraud. The applicant was verbally threatened with harm, he was not physically harmed in Morocco.
According to US State Department Report Human Rights 2019 Morocco is a constitutional monarchy with a parliamentary national legislative system under which ultimate authority rests with King Mohammed VI, who presides over the Council of Ministers. The king shares executive authority with Head of Government (prime minister) Saadeddine El Othmani. According to the constitution, the king appoints the head of government from the political party with the most seats in parliament and approves members of the government nominated by the head of government. International and domestic observers judged the 2016 parliamentary elections credible and relatively free from irregularities.
The National Police Force manages internal law enforcement in cities and reports to the Ministry of Interior. The Auxiliary Forces also report to the Ministry of Interior and support gendarmes and police. The Royal Gendarmerie, which reports to the Administration of National Defense, is responsible for law enforcement in rural regions and on national highways. The judicial police (investigative) branches of both the Royal Gendarmerie and the National Police report to the royal prosecutor and have the power to arrest individuals. Civilian authorities maintained effective control over security forces.
The law prohibits arbitrary arrest and detention and provides for the right of any person to challenge in court the lawfulness of his or her arrest or detention. Observers indicated that police did not always respect these provisions or consistently observe due process, particularly during or in the wake of protests. According to local NGOs and associations, police sometimes arrested persons without warrants or while wearing civilian clothing. Individuals have the right to challenge the legal basis or arbitrary nature of their detention and request compensation by submitting a complaint to the court.
The constitution provides for an independent judiciary, and, as in previous years, NGOs asserted that corruption and extrajudicial influence weakened judicial independence. The Supreme Judicial Council, mandated by the 2011 constitution, manages the courts and day-to-day judicial affairs in place of the Ministry of Justice. The president of the Court of Cassation (the highest court of appeals) chairs the 20-member body. Additional members include the president of the First Chamber of the Court of Cassation; the prosecutor general (equivalent of the attorney general); the mediator (national ombudsman); the president of the CNDH [National Human Rights Council]; 10 members elected by the country’s judges; and five members appointed by the king. While the government’s stated aim in creating the council was to improve judicial independence, its effect on judicial independence was not clear since its inception as an independent entity in late 2017. According to media reports and human rights activists, outcomes of trials in which the government had a strong interest, such as those touching on Islam as it related to political life and national security, the legitimacy of the monarchy, and Western Sahara, sometimes appeared predetermined.
There are administrative as well as judicial remedies for alleged wrongs. Authorities sometimes failed to respect court orders in a timely manner.
The Institution of the Mediator (national ombudsman) helped to resolve civil matters that did not clear the threshold to merit involvement of the judiciary, including cases involving civil society registration issues. Although it faced backlogs, it gradually expanded the scope of its activities and subjected complaints to in-depth investigation. The mediator retransmitted to the CNDH for resolution cases specifically related to allegations of human rights abuses by authorities. The CNDH continued to be a conduit through which citizens expressed complaints regarding human rights abuses and violations.
The Moroccan National Police (Sûreté nationale Al-'Amn al-Waṭaniy) under the Ministry of Interior and the Gendarmerie Nationale under the Ministry of Defence are the main law enforcement agencies in Morocco.
The judicial branch[1] is the only branch of Government that is not subject to the King’s direct supervision, and the Constitution further proclaims its independence from the legislative and executive authority. The King is the guarantor of this independence. The judiciary is divided into three types of courts: general jurisdiction courts, specialised courts, and special courts. The Municipal and District Courts were established in 1974 to settle minor criminal offences. These courts are empowered to impose monetary penalties only and may not imprison offenders. There is no appeal from these courts. General jurisdiction courts can hear any matter, besides those designated to special courts. There are 837 Municipal and District Courts headed by a single judge; who is generally an elected official not a career judge. The courts deal with more minor infractions; hearing only minor criminal offences or civil matters where less than 110 United States Dollars (USD) is in dispute. They are not permitted to hear cases regarding personal status or real property. Within the purview of general jurisdiction courts, there are 71 first instance courts that, unlike the Municipal and District Courts, can hear cases on civil, social, commercial, real property, and personal status claims, and criminal cases involving petty offences and misdemeanours. Panels of three judges sit on first instance courts. The final category of general jurisdiction courts are appeals courts. In addition to hearing appeals from the lower courts, they may hear more serious criminal claims. Specialised jurisdiction courts have been established, largely through legislative amendments, to deal with audits, commercial claims, and administrative law respectively. The existing specialised jurisdiction courts are widely respected; however, the political tide has turned away from establishing more specialised courts; to push for subdivisions within the general jurisdiction courts. The Ministry of Justice and Liberties believes this will offer both the necessary specialisation for certain types of cases, including family law, while allowing for flexibility in courts. Special courts primarily deal with government matters that would be unwise to deal with in general courts due to potentially sensitive issues. Both the High Court and the Special Court of Justice primarily deal with cases of corruption involving judges, prosecutors, and civil servants. The Supreme Court is the highest appellate court in Morocco that addresses only issues of law, not fact. It can acquire jurisdiction in general matters in which the parties have pursued all lower levels of appeal. The Supreme Court also has jurisdiction where the claim concerns bias or the partiality of judges, magistrates, and courts, or regarding a decision by the Prime Minister.
[1] type="1">
The applicant claims that the police are corrupt. I accept that corruption and bribery exist in the police force. In relation to the overall effectiveness of authorities in Morocco, measures have been put in place to address corruption. The United States Department of State Country Reports on Human Rights Practices for Morocco 2019 indicates that Morocco has a working criminal law and legal system and the provision of a reasonably effective and impartial police and justice system. English common law is the basis for the secular legal system.
Morocco[2] has continued to demonstrate commitment to a gradual but steady path of democratic reform since the adoption of a new constitution in 2011. As a result of the new Constitution, the Moroccan Government approved a comprehensive Judicial Reform Charter in 2013, which calls for the creation of a judiciary independent of the Ministry of Justice. Those reforms are currently being enacted. The government continues to exhibit the will to institute improvements to its corrections, law enforcement, and judicial system. Morocco has also been working to professionalize and modernize both their national police and penitentiary administration with the full support of King Mohammed VI. The constitution states that all persons are equal before the law and entitled to equal protection of the law.
[2] >
According to the US State Department Report Human Rights Practices Morocco 2019, the constitution and the law prohibit torture, cruel inhuman or degrading treatment or punishment, and the government denied it authorizes the use of torture. On June 10, Minister of State for Human Rights and Relations with Parliament Mustafa Ramid said that systematic torture no longer exists in the country and that reported cases of torture were isolated. There were allegations of torture by some members of the security forces, although the government condemned the practice and made efforts to investigate and address any reports. In September 21, the National Preventative Mechanism (NPM) authorized by parliament in 2018 was established to comply with the Optional Protocol to the UN Convention against Torture, with the objective of examining the treatment of persons deprived of their liberty, with a view to strengthening their protection against torture and other cruel, inhuman, or degrading treatment or punishment. Further, the government continues to exhibit the will to institute improvements to its corrections, law enforcement, and judicial system.
In assessing whether there is a real risk that the applicant would suffer significant harm on his return to Morocco, there is no evidence before me that the applicant has committed any criminal offences which might result in the death penalty being imposed.
The Department's Complementary Protection Guidelines, that are a guide only, provide examples:
‘there must be a real and personal risk to the individual. Where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life’.
There is no evidence that there are widespread conditions of violence in Morocco. The applicant claims that non-state actors who verbally threatened him are aware he is in Australia, but the applicant does not claim to have received any threats whilst in Australia. The applicant left Morocco in April 2016 after living in Rabat for 7 months where he was not followed, physically or verbally threatened. He has been living in Australia for more than 4 years and there is no evidence before me that the verbal threats continued since about October 2015. I am not satisfied there is a real risk of the applicant being arbitrarily deprived of his life by non-state actors.
Furthermore, the independent information cited above indicates that the government of Morocco is strengthening it justice institutions and citizen rights and improving access to justice through effective and accountable justice service delivery. I am not satisfied that the applicant could not obtain, from the government of Morocco, protection such that there would be a real risk that the applicant will suffer significant harm from non-state actors.
Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Morocco, there is a real risk that the applicant will suffer significant harm i.e. that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

Conclusion

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member
ANNEXURE A
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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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, and 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.
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.
…

[2021] AATA 636

10 February 2021

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Immigration

Statutory Interpretation

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Procedural Fairness

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