1711412 (Refugee)

1711412 (Refugee) [2022] AATA 3566 (21 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711412
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Luke Hardy
DATE:21 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 July 2022 at 2:26pm
CATCHWORDS
REFUGEE – Protection visa – Colombia – alleged criminal activity threatened against applicants for refusing to comply with a criminal demand –Tribunal is not satisfied that the applicant is at risk of serious harm –delay in lodging the visa application – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, [Mr A] and [Ms B], who are married, are citizens of Colombia.
The applicants arrived in Australia on [Ms B]’s student visa, with [Mr A] her dependant, on [date] May 2008. The student and ancillary visas were renewed six time over the next four years. The applicants then applied for and obtained temporary working visas in 2012. Those visas were due to expire on 19 November 2016. The applicants lodged a protection visa application on 19 October 2016, eight years after arriving in Australia and shortly before their temporary working visas were due to expire.
The delegate interviewed [Mr A]. She refused to grant the visas on 5 May 2017. The applicants then sought merits review and the matter was constituted to me. I find that the review application is valid.
The applicants appeared before the Tribunal on 20 July 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish-English medium.
[Mr A] submitted medical evidence of an apparently mild stroke sustained in early June 2022. He indicated that the passing of time and the stroke have both affected his memory to some extent. I have duly taken this evidence into consideration. Having considered all of the material before me, I am satisfied that [Mr A] was not prevented from giving cogent evidence by circumstances beyond his control.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, the applicants are entitled to Australia’s protection as refugees or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In his primary application to the Department, [Mr A] claimed to have worked from 1974 to 1981 as a process worker in a [factory] in Palmira, Colombia. He claimed that from 1981 to 1987 he worked with an unregistered [company] in Cali, Colombia. He claimed he worked from 1987 to 1995 as a [occupation], also in Cali. He claimed to have then worked from 1995 to 2001 in Cali as a self-employed [occupation]. He claimed that from 2001 to 2007 he was then employed in Cali by [Company 1], a registered [company] in [Cali]. He claimed that from May 2007 until May 2008, when he came to Australia, he worked as [various roles] in Cali.
In his statement of substantive claims in this matter, [Mr A] claimed that he was self-employed not just from 1995 to 2001, but from 1981 to 2001. He claimed in his statement that he then became an employee of [Company 1] from 2001 to 2007.
[Mr A] claimed in his statement to the Department that he was contacted by telephone by three different anonymous persons in April 2007, which would have been one month before he quit [Company 1] in Cali and became a casual worker/driver in the same city. He claimed the anonymous callers declared themselves to be cadres of the Revolutionary Armed Forces of Colombia (FARC). He said they requested (by telephone) that he collaborate with them to secrete “some [named] products” in [product] manufactured by his employers, [Company 1], in Cali, whereupon he discontinued working for [Company 1], and even stopped privately delivering [goods] during his period of casual and self-employment from May 2007 to May 2008, when, as noted he flew to Australia.
[Mr A] indicated a number of times in his statement to the Department that he was one of those people in Colombia who refused to comply with FARC. He claimed he could not seek protection from state authorities as they take a long time to respond and are also corrupt. He claimed that FARC would use a comprehensive network to locate him wherever he might try to settle or hide in Colombia and take revenge on him for having refused to collaborate with them. He said this would more likely happen as a result of a plebiscite “rejecting” FARC, which I presume to have been the referendum in which the Colombian people voted narrowly against a peace agreement with FARC in 2016.
[Mr A] emphasised in his 2016 PV application that the “failure” of the referendum was a key factor in FARC likely pursuing him over his refusal to collaborate.
However, the US Department of State (2021)[1] advises that the Colombian government and FARC indeed reached a Peace Agreement in 2016:
The government and the FARC, formerly the country’s largest guerrilla insurgency group, continued to implement the 2016 peace accord. In 2017 the FARC completed its disarmament, and as of July nearly 13,000 former members were engaged in reincorporation activities, including the formation of a political party. An estimated 800 to 1,500 FARC dissident members did not participate in the peace process from the outset. As of October, NGOs estimated FARC dissident numbers had grown to approximately 5,200 due to new recruitment and some former combatants who returned to arms. A significant percentage of FARC dissidents were unarmed members of support networks that facilitated illicit economies. Some members of the FARC who participated in the peace process alleged the government had not fully complied with its commitments, including ensuring the security of demobilized former combatants or facilitating their reintegration, while the government alleged the FARC had not met its full commitments to cooperate on counter[-]narcotics efforts and other peace accord commitments. Following the signing of the 2016 peace accord, three transitional justice mechanisms were established and were operational throughout the year: the Commission for the Clarification of Truth, Coexistence, and Nonrepetition; the Special Unit for the Search for Disappeared Persons; and the JEP.
[1]
The same source indicates that government forces are still confronting splinter groups including FARC members who rejected the 2016 Peace Accord. It describes those groups as having located themselves in remote areas outside of effective government control, operating illicit activities including drug smuggling:
The military was accused of some killings, some of which military officials stated were “military mistakes” … In other cases military officials stated they believed an individual was fighting on behalf of an armed group, while community members stated the victim was not a combatant. On March 2, the army bombed a FARC dissident site in Guaviare and reported killing 13 FARC dissidents. According to press reports, some of those killed may have been children. Officials acknowledged minors were present at the site, describing them as young combatants recruited by the FARC dissident group, and claimed the attack on the site fell within the bounds of international law.
Armed groups, notably the ELN, FARC dissidents, and the Gulf Clan, committed unlawful killings, primarily in areas with illicit economic activities and without a strong government presence. The government reported that between January and July 28, there were 109 killings of state security force members, including 53 police officers, allegedly committed by armed groups. Government officials assessed that most of the violence was related to narcotics trafficking enterprises.
Independent observers raised concerns that inadequate security guarantees facilitated the killing of former FARC militants. According to the UN Verification Mission, as of September 24, a total of 291 FARC former combatants had been killed since the signing of the 2016 peace accord. The Attorney General’s Office reported 34 homicide cases with convictions, 37 in the trial stage, 17 under investigation, and 42 with pending arrest warrants. The United Nations also reported the government began to implement additional steps to strengthen security guarantees for former FARC combatants, including deploying additional judicial police officers and attorneys to prioritized departments, promoting initiatives for prevention of stigmatization against former combatants, and establishing a roadmap for the protection of political candidates, including the FARC political party.
Evidence given to the delegate at interview
For the purposes of this review, the applicants submitted a copy of the delegate’s decision record which contains a summary of [Mr A]’s original claims and his oral evidence given at the PV interview in 2016. Several of the claims made to the delegate appear discrepant from previous written claims.
For example, [Mr A] claimed to the delegate that he was first contacted by FARC in person. He also said he was working independently as a [delivery] driver between March and May 2007 when FARC contacted him, thus making a clear distinction with his earlier claim about having been delivering at that time for [Company 1] in Cali until May 2007 and then becoming a casual [delivery] driver after that.
[Mr A] claimed that his first contact with FARC was when he was making deliveries between Cali and Popayan, when three or four FARC members flagged him down on a freeway around 3:00 pm and spoke to him, demanding that he transport “goods such as boxes of [named] supplies” for them. He told the delegate that he did not know beyond that information what he was being pressed to transport.
[Mr A] indicated to the delegate that he complied with FARC, which is different from his evidence in his original statement. He claimed that he hid the boxes “between the [items]”. Meanwhile, he later claimed to me that he and FARC hid the boxes inside individual items of [goods] he was transporting, rather than in between separate items.
[Mr A] told the delegate he transported goods for FARC on three or four separate occasions, always unpaid and under duress.
[Mr A] said he was intercepted on these three or four occasions “on the freeway,” usually near a “public pick up and drop off point or rest area where other people were often loading trucks and vehicles.”
[Mr A] now said that he stopped being a casual driver in May 2007 and started working with “another employee” in May 2007.
In what appeared to be a new claim, [Mr A] told the delegate that towards the end of 2007 he began to receive threatening telephone calls from people he believed to be FARC cadres. He told the delegate he received approximately fifteen calls over a three- to four-month period.
Evidence given at the Tribunal hearing
[Mr A]’s evidence changed again in a number of ways. Some of his claims seemed more vague, perhaps as a consequence of time and the vagaries of memory recently affected by the stroke. For example, he told me that his first encounter with FARC was when he was flagged down by three cadres some time between 2005 and 2007; this claim is not mutually exclusive with what he told the delegate, but does seem a whole lot more vague.
However, at the hearing, [Mr A] spoke confidently about specific facts that were flatly inconsistent with earlier evidence. For example, he told me he was never told what the FARC boxes contained and never found out, only guessing later that they might have contained drugs. When I put to him that he had previously told the delegate he knew at least that the boxes contained [supplies], he said he did not remember.
[Mr A] told me he was based in Palmira at the time and not in Cali, as previously claimed. He said he was flagged down whilst driving between Palmira and Calca, rather than between Cali and Popayan. Furthermore, he said he was working for himself in Palmira during the period he complied with FARC, rather than for [Company 1] in Cali.
[Mr A] told me that the time of day when he was first flagged down by the FARC cadres was between 10:00 am and noon, which is not consistent with 3:00 pm as previously claimed. I asked him if he was certain of that and he said he was. I then put to him that he had claimed to the delegate that his first encounter with FARC took place on the freeway at 3:00 pm, and he said that he was stopped many times and that one of those times might have been at or around 3:00 pm, whereas the first flag-down happened between 10:00 am and noon.
[Mr A] told me he was forced to make between eight and ten deliveries for FARC. When I put to him he had previously claimed he’d only delivered for FARC three or four times, he said he was not sure now. I recall, meanwhile, that before the delegate’s interview and long before the stroke, [Mr A] had indicated in his original PV application that he had not complied with FARC and, rather than doing so, had quit working for [Company 1].
[Mr A] told me he did not remember how many times FARC telephoned him after he stopped working as a delivery driver. I put to him that he had previously claimed having received around fifteen threatening telephone calls over a three to four month period. He then said this was correct. He said he received all of these calls on his mobile telephone notwithstanding that he changed his number three or four times. His wife, [Ms B] said that she herself received two to three threatening telephone calls on the home landline over a period of around three months. These calls to [Ms B] would have totalled between 24 and 36 over that period. All the calls contained threats to kill [Mr A] for ceasing to comply with FARC’s transport demands. According to the applicants, the threats never changed and there were no known attempts to carry them out. It struck me as odd that FARC did not escalate their aggression but rather repeated the same threats until they might have seemed to appear empty. To be blunt, there seemed to be an air of unreality in the evidence about the telephone threats. [Mr A] said that FARC perhaps wanted just to torture him mentally rather than kill him immediately.
[Mr A] said he also received threatening letters from FARC at his home. Asked if he could present any of these in evidence he said he could not because they had all been torn up. I asked him to tell be, if he could, by whom the letters had been destroyed and he said, “We did.” The claim about threatening letters was also a new claim, not previously made.
[Mr A] said that the three (or, as previously claimed, three or four) FARC cadres on the road had all been more or less his age. He is not [age]. I asked him if some or all of these people might have already died and he said he knew they had not. This struck me as implausible given he told the delegate and me that he never knew the identities of any of these persons. I also essentially put to [Mr A] that, even if alive, these three persons might have joined the peace process in 2016, but he said he was sure they had not based on how they had behaved toward him between 2005 and 2007.
I should note here that whereas [Mr A] told the delegate that he made his three or four deliveries for FARC over a three-month period, he told me that his eight or ten deliveries stretched across the period from 2005 to 2007. This is another discrepancy.
[Mr A] and [Ms B] submitted several recent news articles describing clashes between Colombian authorities and former FARC, and other armed groups, in various parts of the country, mostly in the hinterland on the border with Venezuela. [Mr A] agreed that these groups are smaller than FARC used to be. He also acknowledged that they are often at war with each other, competing for a bigger slice of the region’s drug trade. He said they would all, however, have his file. When I asked how separate and sometimes opposing groups would all have a file on him, ready to re-activate on his return to Colombia, [Mr A] said that the guerrillas and the government forces all have his file.

I drew to the applicants’ attention the period of a year or so, or at least of several months, during which they resided in Cali before coming to Australia and did not attempt to escape to any other neighbouring country and were still unharmed. [Mr A] said that he and [Ms B] could not escape to neighbouring countries because all roads out of Colombia were monitored at the time by armed groups. I asked them why they could not have flown to a neighbouring country, and the response was a seemingly novel and completely unsupported claim about FARC having at the time infiltrated immigration posts in the airports of all countries neighbouring Colombia. [Mr A] also said that FARC may have infiltrated Colombia’s own airport authorities at that time. I asked him to tell me how, if that were so, he and [Ms B] had been able to depart Colombia legally in May 2008 and he said that that the officials at the airport would have seen that they had the paperwork allowing them to travel to Australia. I presume he meant that they would have seen [Mr A]’s and [Ms B]’s visas, but I cannot see how that would have stopped anyone, either in or usurping an official capacity, from preventing their travel if having an intention to do so. I asked myself if this seemingly implausible evidence might be affected by [Mr A]’s stroke, but a vague or imperfect memory did not appear to be at work here. Rather, I came to the considered view that [Mr A] was improvising. He and [Ms B] did not, either of them, offer a cogent explanation for having been able to live unharmed in Cali for so long after FARC first threatened to kill him.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
I am not satisfied that any of the five factors detailed in s.5J(1)(a) of the Act is an essential and significant factor for the harm the applicants claim to fear. The applicants’ claims are, rather, about alleged criminal activity threatened against them for refusing to comply with a criminal demand.
In any event, I do not believe that [Mr A]’s claims are truthful. That is to say that I do not accept that he was ever identified, contacted, coerced or threatened by FARC at any time either by telephone, or letter, or in person. Before arriving at this conclusion, I have carefully examined whether the many deficiencies in [Mr A]’s evidence could be attributed to his recent stroke or other circumstances beyond his control. However, the problems in his evidence are not merely about difficulty remembering details. There has been a pattern of embellishment and improvisation in [Mr A]’s evidence from the beginning, such as when he changed his claim from one about refusing to comply with people he apparently only encountered over the telephone to one about ceasing to comply with persons he originally met in person on the road. Overall, I find that the bulk of inconsistencies in this case arise from [Mr A] not being truthful. I find that his evidence is so unreliable that I give no weight in this matter to the seemingly corroborative evidence of [Ms B].
Whereas the applicants have provided evidence of some faltering in the Colombian government’s Peace Accord with FARC and of recent conflicts between state authorities and armed groups, I am not satisfied that this is indicative of a real chance of the applicants being persecuted for any reason in Colombia in the reasonably foreseeable future.
Overall, I am not satisfied that the applicants face a real chance of being persecuted, either separately or cumulatively, in Colombia in the real future for any reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
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.
Accepting that the applicants are nationals of Colombia, I find that Colombia is the receiving country in this matter.
The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have essentially failed due to lack of credibility as well as being unable to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.
Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Colombia, there is a real risk that the applicants will suffer significant harm.
Accordingly, I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that either 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, neither satisfies the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3566

21 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Standing