1711696 (Refugee)

1711696 (Refugee) [2020] AATA 4985 (15 September 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711696
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Rodger Shanahan
DATE OF DECISION:  15 September 2020
DATE CORRIGENDUM
SIGNED:7 December 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
In Para 31. Instead of China it should read Egypt.

Rodger Shanahan
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1711696

COUNTRY OF REFERENCE: Egypt
MEMBER:Rodger Shanahan
DATE:15 September 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 September 2020 at 9:34am
CATCHWORDS
REFUGEE – protection visa – Egypt – religion – unorthodox Muslim beliefs – disbelieving the Hadith and Sunnah – prayers at the mosque – imputed to be an apostate – fear of killing – threats of divorce – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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 11 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 Egypt, applied for the visa on 22 February 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). 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.
CLAIMS AND EVIDENCE
Protection Visa Application
As part of the applicant’s protection visa application, he submitted the following written evidence:
My religious beliefs have changed significantly. I do not believe in or practice Sunni Islam. I am Muslim and I only follow the Quran. During each return visit to Egypt, I notice that my religious beliefs were becoming different to the beliefs of most people in Egypt. This was very noticeable during my last visit, particularly when Morsi was in power. I got into many arguments with
friends, neighbours and family about The Morshid, The Caliphate and the position of non Muslims in Islam. My family insisted that I sit with a Sheik so that he can sort out my thinking. A number of friends stopped talking to me and others threatened to kill me because I was a kafir.
During the last 12 months I started to think about my religion and spent more time trying to understand it. I wanted to know why my thoughts were different to how I had been raised. I would discuss religion with my wife and get a very negative response from her when I logically questioned any aspect of the faith. After much reading and speaking to an elder at a mosque, I began to doubt the Hadith and Sunnah. I showed the elder a few verses from the Quran that supported my doubts about the Sunnah and Hadith but he responded very angrily. My wife was initially very distressed with my thinking and after some time she told her family and my family about my beliefs.
My father disowned me and my wifes family started to ask for divorce. To stop the divorce I had to pretend to the family that I had changed and returned to beliefs of Sunni Islam. I have not been to a Mosque for almost 6 months and I now only follow the Quran. I have been talking to who ever will listen to me because The Quran asks us to spread the word.
He further stated that if he were to return to Egypt, that ’I will not be able to practice my religion. I will be forced to practice Sunni Islam. My wife will divorce me or be forced to divorce. I will lose custody of my daughter. I could be killed.’
AAT Hearing
The applicant was asked if he knew everything in his protection visa and he knew it to be true and correct. Asked if he turned up to his DIBP interview, he said that he didn’t because they gave him seven days to prepare for the interview and he was outside Sydney and sick. He was asked if he tried to have the hearing postponed and he said he didn’t. Asked why he didn’t he claimed they said they would contact him.
He was asked why he didn’t reply to the hearing invitation for the current hearing, he claimed the agent contacted him and told him about the hearing. Asked what visa he was on between arriving in Australia and applying for a protection visa, he said he was on a student visa. He studied [Subject 1] but didn’t finish then studied [Subject 2] and then [Subject 3] but he didn’t take a certificate. Asked if he completed any course, he said he finished [Subject 2] in 2010.
Between 2010 and 2012 he studies [Subject 3] but didn’t finish. From 2012 to 2014 he was in Egypt. From 2014 until he applied for protection in 2016 he was in Australia on a student visa. He did not study after 2014. Asked how he was here for two years without studying anything, he claimed that he told the government he was going to study [Subject 2] but didn’t. He claimed that he didn’t have the money to pay for the study.
It was put to him that he would have had to tell the government that he did have the funds else he wouldn’t have been given the visa. He said this was the case but he couldn’t get the funds. The original visa he had was from 2012. Asked if he told the education institute or the government that he didn’t have the funds to pay, he said he didn’t. Asked if he worked while in Australia on a student visa, he claimed that he did.
Asked if he was currently employed, he claimed that he wasn’t. He stopped working for three months (he had been working casually for someone in [an occupation]). He was currently married since 2012 in Egypt. His wife was currently in Egypt, and he hadn’t been back to Egypt since 2014. He had one daughter.
He claimed that if he were to return to Egypt he would be killed or imprisoned by family members and friends and the country he was going to because he had different religious thoughts from the society he would be returning to. He believed in the Qur‘an only and didn’t believe in the Sunnah and was considered an unbeliever and was blaspheming Islam as a result. He confirmed that this was his only reason to claim protection. Asked when he first had this fear due to his religious belief, he claimed that it was about 2012.
He will be harmed because his beliefs are different to everyone else’s. The whole society are Sunnis and he doesn’t believe in the Sunnah, only in the Qur’an which was revealed by God to the Prophet. He is considered a disbeliever. He believes the Sunnah was created by people 300 years after death of the Prophet and he has lots of differences with the Sunnah. There are lots of traditions that are not correct – things (false things) have been added to it.
Society forced him to accept it and follow it. Asked what this meant practically in terms of what he did and didn’t do compared to what a normal Muslim would. It was put to him that member had a PhD in Arab and Islamic Studies so was familiar with the Qur’an and the Sunnah and was interested in how he followed a non-Sunnah form of Islam and what he did and didn’t do in his day-to-day life as a Muslim. He said he believed all that was in the Qur’an and then recited the ‘Five Pillars of Islam’ as part of his beliefs.
He said he didn’t go to the mosque to hear the khatib give a sermon about what God said. He was asked why this was a problem given lots of Egyptians didn’t go to mosque on Fridays[1] and as long as he observed the Five Pillars then he was Muslim. He agreed lots of people didn’t pray on Fridays or at all but his community wouldn’t accept this – he meant that the place where he lived and his family members (a small village in northern Egypt). Asked why he didn’t move to a big city like Alexandria or Cairo where no one would care, he said he would still express his opinions and the people around wouldn’t accept these views. He was asked why people in Cairo would care about these opinions.
[1] According to the Pew Research Centre’s 2012 study, only 61% of Egyptian Muslims attend mosque at least once a week. accessed 14 September 2020
He said he couldn’t keep this inside and would need to express his views. Asked what he had done in Australia regarding the expression of his views in the community in which he lived, he claimed that he did. No one accepted it. Asked if anyone had done anything about it or they just didn’t like his opinion, he claimed that it was the same as in Egypt – they believed he was an apostate and unbeliever.
It was put to him that there were five schools of Islamic law and there was lots of disagreement about the Sunnah. Indeed, disagreement was part of the development of Islamic law. It was an interpretive religion, and as long as one followed the Five Pillars then they were considered Muslim. Outside of that there was lots of disagreement. God was the only judge and the applicant followed His word (the Qur’an) so he was asked why there was a problem.
It was put to him that perhaps he just had a different view of Sunnah. He claimed he didn’t believe in the Sunnah at all as it created problems in the eastern societies. Asked if he ever expressed these views on social media, he claimed that he didn’t want to be a famous person so he didn’t put his opinions on social media. It was put to him that the Tribunal had been told by him that he held these views so fervently and passionately and yet he had never expressed them in the public domain then it may be questionable as to whether he truly held these beliefs.
He claimed that he expressed his opinion in Egypt in 2014 and he was opposed and was in danger. This occurred in 2013 during the Muslim Brotherhood (MB) rule. Asked if he had these fears when he left Egypt he claimed he did. Asked if he applied for protection when he arrived in May 2014, he claimed that he didn’t. It was put to him that he claimed he was fearful because he had expressed these views yet he never applied for protection in Australia.
He claimed he had a visa at this time so could live in Australia. It was put to him that he was here on a student visa and was working and not studying. This profile and inability to claim protection on arrival may indicate that he was here for economic purposes only. He claimed that he was working and got married in Egypt in 2013/14 and was thinking he wouldn’t come back to Australia but did so because of the fear he had after expressing his opinion.
When he returned in 2014 he had a valid visa so he didn’t think of a protection visa – he only did so after he knew they wouldn’t renew his visa. Asked if they wouldn’t renew his visa because he hadn’t been studying, he agreed. It was pointed out that the timing of his claim appeared to be the result of his student visa running out and this may raise questions about his motivation for applying for protection.
He claimed it was the opposite. He had a visa and was comfortable staying until that ran out. It was put to him that he feared being divorced or a divorce forced upon him and that he would lose custody of his daughter. It had been four and a half years and he was asked if he was divorced or lost custody of his child. He claimed that there was a problem currently as her father and she had spoken to him and the father was making those threats. It was put to him he claimed that this would happen four and a half years ago but nothing had. He claimed he had tried to convince them he was a Sunni Muslim but he hadn’t changed his mind.
It was put to him that he had claimed he couldn’t keep his true religious feelings hidden yet he was also claiming that he could keep them hidden if required. He claimed that he lied to the family and friends because he was worried about his wife and daughter. It was put to him that the Tribunal could not find any country information that a belief in the Qur’an but not the Sunnah led to any persecutory behaviour in Egypt and he was asked if he had any.
He claimed that al-Azhar law said that any person not believing in the Sunnah was an unbeliever and the government should not protect them. This was especially in the emergency law. He was asked to provide this information and asked to send some information about anyone jailed or killed by relatives for having the type of background he claimed to have.
He claimed a Shi’a sheikh was killed a few years back; there was also a famous sheikh on TV and radio who was prisoned because he was against books of Sunnah. He was again asked to provide relevant country information and was asked if he understood. He claimed that there were four persons in 2015 because they only believed in the Qur’an. He was asked to provide country information that would support this claim.
It was put to him that there were serious issues regarding his claim. He had no profile, made no effort to move to a big city, nothing had happened to his wife and he didn’t apply for protection for a year and a half after arriving back in Australia after claiming that his life was in danger.
In concluding, the applicant stated that because some people had a problem with him and called him an apostate this caused issues for him. Some people had contacted his wife and said they would kill her daughter because he was an apostate. He had raised the issue previously that he was afraid for the safety of his daughter in Egypt because of the threats however the member had told him that the hearing was about whether protection was owed to him, not his family members in Egypt. He stated that because the member had told him this he hadn’t mentioned the threats against his daughter earlier at hearing. The member said he would take this into account. One person rang his wife from a private number phone and threatened to kidnap and kill their daughter because they should not have an apostate father. He had not reported this to the police – he had no evidence to support this other than his oral claim. It occurred in 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa [in] July 2017, and applied for protection on 3 August 2017. I have sighted a copy of his passport and accept that China is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is [an age] year-old, married male. He claimed that he feared being killed or imprisoned in Egypt because he had a different religious ideology to others, in that he believed in the Qur‘an but didn’t agree with the Sunnah.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. His migration history and delay in applying for protection are also indicative of someone seeking a favourable migration outcome for economic reasons rather than someone fearing serious harm. He has been in Australia since 2004 (living in Egypt between 2012-14) on a student visa with little to show for it, but a lengthy work history in Australia. By his own admission he had started courses in [Subject 1] and [Subject 3] but failed to complete them, although he did finish a [Subject 2] course.
From the time he re-entered Australia on his student visa in 2014 until he applied for protection in 2016 he undertook no courses of study. I don’t accept that he never had the funds to pay for the course, given he never approached the government or the service provider to tell them he was unable to raise the funds.
For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Issues Concerning the Qur‘an and Sunnah
I do not accept that the applicant accepts the Qur‘an (literally the word of God) but does not accept any part of the Sunnah or ahadith because he believes that they are incorrect traditions created by people 300 years after the prophet’s death, and that this would see him imprisoned by the authorities or killed by relatives or friends.

To begin with, Islam is itself and interpretive religion given the nature of the sources of Islamic law; the Qur’an (the word of God revealed to Muhammad) and the Sunnah[2] (collections of the sayings and actions of Muhammad). The Sunnah is based on collections that contain accounts of varying degrees of authenticity and are contained in several collated works that may differ between themselves. The fact that there are five ‘schools’ of Islamic law (four Sunni, one Shi’a) reflects the diversity of opinion with respect to the Sunnah.
[2] accessed 1 September 2020
One’s stance with respect to the Sunnah is not therefore what defines a person as a Muslim. It is their adherence to the so-called Five Pillars (the shahada or affirmation of faith, alms, prayer, undertaking the hajj and fasting during Ramadan) that makes one a Muslim. The applicant states that he adheres to the Five Pillars.
That having been said, there is a deal of evidence that those who believe only in the Qur’an (known as the Qu’raniyyun) are considered apostates within conservative Salafist circles.[3] Regardless, despite his claims to be one of the Qu’raniyyun I do not accept this to be the case.
[3] accessed 1 September 2020
The applicant’s claim in this regard relied solely on his oral evidence, yet his actions (or lack thereof) do not indicate someone with an ideological commitment to the rejection of the Sunnah, let alone a desire to express his views on the issue as he wasn’t able to keep it inside himself. There is a Facebook site dedicated to the Qur’aniyyun movement[4] and from the available literature there is no indication that its adherents do not speak publicly about it.[5]
[4] accessed 15 September 2020
[5] accessed 15 September 2020
The applicant was unable to provide any evidence that he has enunciated, let alone discussed or debated this alleged ideological standpoint in any public forum such as social media. I do not accept that this was because he didn’t want to become a famous person. Simply putting such views on social media would not have guaranteed him any notoriety, but rather would have been consistent with his claim that he couldn’t keep such views inside himself and would need to express them when he was in Egypt. Given he was completely free to express such views in Australia, the fact that there is no evidence he has done so is further indication that he has not taken any steps to express or propagate not indicative of his need to express such views.
Because I do not accept that the applicant is a supporter or member of the Qur’aniyyun, it follows that he never got into arguments with friends or family regarding related ideological issues in Egypt, that he was made to sit with a sheikh to discuss it, discussed it with a mosque elder, that friends threatened to kill him because of his belief in it, that he has expressed his views regarding it in the Australian community and been considered an apostate for doing so, or that he expressed it in Egypt in 2014 and was in danger because of it.
The timing of his protection visa application is also not indicative of someone fearing serious harm. He claimed that he expressed his religious opinion in Egypt while he was there in 2014 and was opposed (by people) and had a fear of harm when he returned to Australia. Yet he did not apply for protection for another 18 months, and only when his student visa was going to be cancelled because he had not been studying for nearly two years. I do not accept that he did not apply earlier because he had a valid visa. The reality was that he was on a student visa but not studying and he could have applied for protection as soon as he arrived back in Australia if he did have a fear of serious harm.
Other Issues
Because I do not accept that the applicant that the applicant rejects the Sunnah and is in danger because of it, it follows that he never pretended to follow the Sunnah in Egypt, that he would not be perceived to be an apostate, that his father disowned him, his wife’s family started asking for a divorce, he would lose custody of his daughter or be killed. I also do not accept that anyone from a private number has called his wife and threatened to kidnap their child. This all relies on his oral testimony which I have found to lack credibility.
I also note that the applicant had claimed four and a half years ago that his wife would divorce or be divorced from him and that he would lose custody of their child and yet nothing had happened in that time – this simply reinforces my concerns about the truthfulness of his claim. I have considered but do not accept his claim that the divorce did not occur because he had lied to the family about believing in the Sunnah. Not only is it a very long time to be able to successfully hide one’s ideological beliefs that they claim to hold so fervently, but it also relies on the applicant’s oral evidence which I have to lack credibility.
I have also taken into account the post-hearing country information he provided. Most of it is not relevant, although I note that a TV anchor was sentenced to a year in prison for critiquing parts of the ahadith collections. However, given that I have found that the applicant is not someone who does not believe in the Sunnah, this piece of information is not relevant.
Because I do not accept that the applicant is someone who has rejected the Sunnah, I also do not accept that he has only gone to mosque in Egypt to placate his wife’s family or that he would be targeted for not going to Friday prayers in Egypt to hear the khatib (the one who gives the sermon) because he lived in a small village. Whilst he agreed that lots of people didn’t attend mosque in Egypt (a fact backed up by the Pew Research centre data cited above), he also made no attempt to relocate to a large city such as Cairo or Alexandria. I do not accept that he didn’t do this because he would still express his anti-Sunnah opinion wherever he was – I have already found that he holds no such opinion.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is or ever was someone who rejected the Sunnah and only followed the Qur’an, that he was opposed in Egypt because of his views, that he would be imprisoned by the government or killed by friends and family or that he would be divorced by his wife or she would be forced to divorce him, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
Member

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

[2020] AATA 4985

15 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies