1712139 (Refugee)

1712139 (Refugee) [2017] AATA 2145 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712139
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:31 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 October 2017 at 4:57pm

CATCHWORDS
Refugee – Protection visa – Iraq – Ethnicity – Faili Kurdish – Religion – Muslim (Shi’a) – Dual Iraq-Iranian citizen – Societal discrimination in Iran – Illegal Boat arrival – Detained – Memory lapses – Inconsistencies in applicant’s evidence – Able to reside in another country – Failed asylum seeker
LEGISLATION
Migration Act 1958, ss 5, 5J, 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 424AA, 499
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 [in] 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 Iraq and Iran, applied for the visa [in] October 2016.
CRITERIA FOR A PROTECTION VISA
Protection Visa Application
The applicant claimed that when he arrived in Australia he was not advised that answers he gave during his interview could be used or assessing his protection claim. He claimed that his ethnicity was not Arab (as stated in his entry interview) but was Kurdish. He was a citizen of both Iraq and Iran, having been born an Iraqi citizen and became a dual citizen in 2008. He was a Kurdish Shi‘a.
He was born in Iraq and around [date] his family was expelled to Iran where they stayed for 18 months before returning to Iraq. They were again expelled in 1980 because of their Iranian descent. They lived in Qum, where a lot of Kurds had gone to after they were expelled. Because they couldn’t find long-term rental as Kurds they moved house a lot.
He returned to Iraq on two occasions; in 1991 to join the intifada for a few months and then in 2008 to assess the situation but he returned to Iran because the situation was too dangerous. His father was involved with [a political] group in Iraq and had been arrested and detained but he knew no more details than this.
He had some original ID documents but they were with friends in Australia and he would try to produce these. He had two brothers in [Country 1], one of whom had been granted asylum because he was an Iraqi Kurd. He claimed that he had been in detention for many years and that the effects of this on his memory and mental health should be taken into consideration.
He feared returning to both Iraq and Iran. He claimed that the second time they were deported his [uncle] was arrested, which they thought was because he was of conscription age and therefore a greater threat – they heard later that he was executed. He returned to Iraq in 2008 to apply for his official documents but the treatment of Kurds was still very bad so he couldn’t stay. He was staying at a local hotel where police found him and questioned him. They refused to believe that he was an Iraqi citizen even though he had the documents to prove it. He was told to leave the country and was so scared that he did just that. He would have been arrested and detained if he hadn’t left Iraq voluntarily.
In Iran Kurdish people are not wanted and are severely discriminated against. He didn’t have access to the same education or enjoy the same work rights. His school for expelled Iraqis was closed down and he wasn’t allowed to go to an Iranian school and therefore didn’t finish his education. He sold [goods] with his father and then started his own [business] with a permit under another person’s name. The authorities would come and close his [business] and not let him re-open it until he had finished filling out unnecessary paperwork. The harassment became so bad that he couldn’t operate it any more and he left his business in 2008. He didn’t work again and instead tried to leave the country.
Even after he had been granted Iranian citizenship in 2008 the situation remained the same as he was still considered to be Iraqi. He was still severely discriminated against. He came to Australia in 2010 and his remaining family members are in Iran.
He feared returning to Iraq because he would be arbitrarily detained and subject to substantial discrimination, forcibly deported to Iran or tortured and killed. Because he was Kurdish with Iranian descendants and Shi’a, he would be considered an enemy of the country. The whole country is in conflict and it will be much more dangerous for him. He couldn’t go to Baghdad as he is a Shi’a Kurd, and couldn’t go to the north because he was Shi’a, has never been there and they are claiming self-rule.
He feared returning to Iran because he would be subject to substantial discrimination, physical assault, arbitrary detention and torture by the government and other civilians. This would come about because he was an Iraqi Kurd, the language he spoke and the fact that he spoke Farsi with and Iraqi accent. He would be in even greater danger because he would be a failed asylum seeker from a Western country. His personal details have been made public by DIBP so he would be readily identified by the Iranian government.
AAT Hearing
The applicant agreed that he claimed to have dual Iraqi-Iranian citizenship. Asked if he had any proof of Iranian citizenship, he claimed not currently. The smuggler took his passport. Asked if he had an ID card and booklet in Iran, he claimed he used to have but you lose everything when you leave. Asked where it was when he left Iran, he claimed he was in a hurry, took the passport and left. He didn’t know where the documents were now. He rented a place where he worked away from his family and didn’t know what happened to the documents. It was put to him that he would have left the documents with his family or somewhere safe as he didn’t leave in a hurry. He claimed once he left for the booking (aircraft) he left everything behind.
Asked if his siblings were all Iranian citizens he claimed they should be but he wasn’t sure if all of them were. Asked why they all weren’t, he claimed it depended on how much they tried to get the documents because one was in [Country 1] and one in [another country]. He had two sisters in Iran, one who went back and forth to Iraq. He believed his sisters were expelled Iraqis as far as he knew. Asked directly again if his sisters were Iranian, he claimed they were both Iranian and Iraqi. He was asked to provide copies of their Iranian documents to the Tribunal.
He said he couldn’t as they were married and the responsibilities of their husbands. He again claimed he had no authority over them. He stated that he believed his mother was Iranian and he was asked to get his mother to provide copies of her Iranian ID documents. He claimed that he could not do this as he didn’t wish to expose them to danger. He was advised that the hearing was confidential. He had provided no Iranian documents to the Tribunal and if he refused to approach his family to provide copies of their Iranian ID documents, it may be open to the Tribunal to find that he was not Iranian and his country of reference would be found to be Iraq only.
He claimed he had been displaced from Iran – the Tribunal said it was happy he had spent some time in Iran as he had a card saying he could reside there until 2007 and he had claimed he became Iranian in 2008. It was entirely in his power to provide evidence that he was an Iranian citizen, and if he didn’t this could impact on his credibility and whether he was considered to be Iranian or not. He claimed that he understood this.
His brother [Mr A] was currently in Iran as far as he knew. He was asked to provide a copy of [Mr A]’s Iranian ID documents. He claimed that they had been expelled and they had great difficulty in getting their documentation. It was put to him that if his brother was an Iranian citizen he could easily provide copies of his documentation for the Tribunal. He again said he understood this. He then said he spoke Farsi – it was put to him that he had lived in Iran so it wasn’t unusual that he spoke Farsi. The issue was what nationality he was.
He claimed that he feared returning to Iraq because he had been away for a long time, having been expelled from there. He may again be expelled by force or by threats. The Iraqi government security would do this to him because they said he shouldn’t stay in Iraq. He agreed that he was an Iraqi citizen but they said he came from Iran. People said that he was Kurdish (he agreed that he was). Asked if he had anything that could prove he was Kurdish – he claimed he spoke a little Kurdish (after saying he didn’t speak any).
He had distant relatives of his father in Iraq. He had no brother or uncle. One had been executed and one died a long time ago. Since he had been in Iran he had had no contact with relatives there. They were all expelled from Iraq. The last time he had contact with relatives in Iraq was when he returned after fall of the regime – he visited them. He again said they were distant relatives. He saw his father’s sister-in-law who was in [City 1]. He then said she was the daughter of his father’s uncle. He was told that he was being very vague and needed to be more precise in what he said.
He then said that the person he visited was the daughter of his father’s cousin, but in Iraq even far relatives were welcomed by people. There were also relatives of his mother but he didn’t know what relations as he was a child when he left Iraq. It was put to him that he could have asked. He then said they were the children of his mother’s cousins – they were in [City 1] and Baghdad.
Asked about [Tribe 1] he claimed it was a [certain composition]. Some people in Iraq were included in a tribe just for protection. The [Tribe 1] was centred on [City 1] as far as he knew. He had no idea about the tribal relations as he left Iraq as a child but there were links. He had Iraqi citizenship as a child and kept it when they were expelled. He showed it to Immigration.
He had returned to Iraq around 2008 and he had forgotten much. Asked why he returned then to get an Iraqi ID document, he claimed that he had been in a hard condition but it was also hard in Iraq. The document he had was old and he tried to get a new Iraqi document. He was an Iranian citizen at this stage and he travelled to Iraq on an Iranian passport. He was asked why, if he was an Iranian citizen already, he had to go to Iraq and obtain Iraqi citizenship. He claimed he had been persecuted and wanted to go back to their country.
He was asked who went to Iraq at this stage and said that his parents and siblings went. He then said it was just him and his parents. He didn’t know what his younger brother did, but he went another time and didn’t know what he travelled on. After the fall it was chaotic and people were smuggled in. It was put to him that it was reasonable to believe he would have known how his brother went. His younger brother went just after the fall of Saddam. He was asked why his younger brother went, as it would have been the older brother’s responsibility. He said this was not necessarily the case.
As far as he knew, both his parents crossed using their Iranian passports. He was asked to provide a copy of his mother’s and father’s passports. He said his father was dead but he said he had no authority over his mother. It was put to him that all mothers loved their children and if he just asked the Tribunal was sure she would send him a copy. Asked if his getting his Iraqi citizenship was with an intent to move there and he agreed this was the case. He got his national ID card and certificate of citizenship over two trips. On the first trip he applied for citizenship then returned to Iran and then went back a short time later. On this trip he got his certificate. Only his mother was with him on the second trip.
They didn’t stay in Iraq on this trip because the security forces said they had to leave. There was a citizenship law in 2006 that they had used, a Shi’a government was in power – he was asked why they were told to leave. He claimed there were separate groups in Iraq that worked in different ways. It was put to him that the Tribunal was unaware of country information that Iraqi citizens were being expelled into Iran, and it was reasonable to believe that such incidents would come to the attention of authorities, including the UN. He claimed the government had no control over its institutions. He was asked if he could provide some country information to support this claim. He state that no one would admit to their mistakes.
He wasn’t aware if his brother got citizenship. Asked why he hadn’t enquired, he claimed that he knew his brother had Iraqi citizenship but hadn’t asked him. He was asked why a stateless Kurd as he claimed to have been, would not know his family’s citizenship status given the importance of the issue. He claimed they all had citizenship when expelled but when his brother re-applied he wasn’t sure but he knew he had it. He was asked why he didn’t enquire of his brother as to whether he was successful – he claimed he couldn’t remember asking but it didn’t occur to him to ask.
Asked if, after 2008 he tried to return to Iraq and set himself up – [City 1] was in the south, he had tribal and family links, was an Iraqi citizen and spoke the language. He claimed that he tried to but the security asked him to leave as he didn’t have a permanent residence there. He was told that his citizenship had expired. It was put to him that this didn’t make sense as citizenship didn’t expire. He then said his visa in his Iranian passport that he used to enter had expired. He said that he tried to explain but they didn’t listen. It was put to him that he hadn’t previously mentioned that he had been asked to leave because of an expired visa. He claimed the authorities wouldn’t be convinced.
He claimed that groups would act against you if one stayed in Iraq too long as there was racism and he was considered an outsider. It was put to him that he spoke the language, was born in Iraq, was a citizen and had family and tribal links so he should be able to be absorbed easily. He claimed he needed to go to the chief of the neighbourhood, show documents and get a ration card. They would know he was a foreigner and an expelled Kurd. He had been expelled because of racism – it was put to him that he had been expelled by Saddam and there were now Shi’a governments in Baghdad and the south. Life was different to when he was expelled. There had been many killings.
It was put to him that the Tribunal wasn’t sure he was Iranian but would address Iranian issues for completeness’ sake. He claimed that in Iran he feared persecution and hardship and had been in Australia for seven years. Asked to be more specific, he claimed that he wouldn’t be allowed to live there. He would be detained and imprisoned for being away for so long. Asked what he meant by persecution, he claimed that he wouldn’t be allowed to work or enjoy life. He worked but was harassed and his [business] was closed. He rented [the premises] but closed the business after being harassed, then worked [doing something else]. He couldn’t remember exactly how long he had his [business] but it was around 12 years. The [business] was closed time to time because he was an expelled Kurd.
He couldn’t remember when he closed his [business] but it was around two years before he came to Australia. He worked a bit for his brother, tried to live in Iraq but was asked to leave. He couldn’t remember how long he spent in Iraq. He didn’t do anything when he returned to Iran and was just trying to leave. He did unpaid work for his [brother]. His brother [was] a freelancer. The applicant claimed that he received Iranian citizenship in 2008 but couldn’t remember the exact date.
Asked how he got the Iranian citizenship, he claimed that he received it through his father. Asked to explain how, he claimed he presented his father’s Iranian foreigner’s certificate (as opposed to an Ottoman one). He didn’t know when his father received Iranian citizenship, and it was put to him that this was an important event and it may be reasonable to believe that he should have a better idea of when this occurred. He claimed his family wasn’t settled and had been expelled. It was put to him that the question was straightforward – he said that he wasn’t sure.
Once he found his father had Iranian citizenship, he claimed he lodged the application after some time as he was in a difficult situation. Asked whether he was speaking about weeks, months or years. He claimed it was perhaps a year. He was asked why he didn’t lodge it immediately after his father received it given the problems he claimed he had. He claimed they were thinking of returning and things were difficult. It was put to him that he had said they were Iranian citizens before they went to Iraq so stating that he didn’t apply for Iranian citizenship because they were thinking of going to Iraq didn’t make sense.
He claimed that he couldn’t put things in proper sequence as he didn’t think like this. It was put to him that he had plenty of time to sort out the timetable of events, and advanced notice of the hearing and could have talked to relatives to fill in blanks. He could have made an effort to sort out events in his mind before the hearing. He claimed that he had given these details when he first arrived. It was put to him that he had never given dates relating to his father’s Iranian nationality.
He claimed his mother would not have even be able to remember as they didn’t think like this. He didn’t know when his brother applied or gained Iranian citizenship. It was put to him that this was hard to believe given the centrality of nationality to his problems. He claimed the situation was different to the situation in Australia. It was put to him that the Tribunal had to determine what was reasonable. He claimed again that it was difficult to obtain Iranian documentation from his relatives and it would be dangerous for them. It was put to him that it was hard to see how providing copies of one’s identity documents would be dangerous for someone.
Asked why his [business] was closed if he was an Iranian citizen, he claimed the owner wanted it back. Asked why he didn’t simply open another one, or work for a wage elsewhere. He claimed he was under pressure in this business and couldn’t work. IT was put to him that he was an Iranian citizen. He claimed it was written that he was born in Iraq. It was put to him that Ayatollah Shahroudi was born in Iraq and was very important. He claimed he was from the government and it was put to him that this showed that simply being born in Iraq wasn’t an impediment to rising in Iran.
He claimed that all Ahwazis were being accepted in Australia – it was put to him that this was not correct and it often depended how truthful they were. He was advised that there was no country information that indicated that simply having ‘born in Iraq’ on one’s document lead to persecution in Iran. Asked if he applied for other jobs once he was Iranian, he claimed that he didn’t because he couldn’t change his career – he was asked about [other jobs]. He repeated that he didn’t apply.
It was put to him that personal details would be known to Iranian authorities because such details were put onto the DIBP website in 2014. He agreed that he still made this claim and had received a letter about it. He was advised about s 424AA and it was put to him that in his DIBP interview he was advised that the leaked information didn’t apply to him as his information wasn’t included in the names. He didn’t recall being told this.

Country information was put to him that failed asylum seekers returning to Iraq and Iran did not face persecution simply for being a failed asylum seeker. In Iran if one didn’t have a political profile there were normally no problems. In southern Iraq in particular the government was keen for people to retain and some failed asylum seekers were doing well after their return. He claimed that neither country would accept him. He had been expelled twice and couldn’t return. If he had no family or tribe no one would protect him. He couldn’t live in Iran because they pressured and harassed him.
Asked why he hadn’t reported his expulsion from Iraq to someone (such as the UN or Iranian/Iraq government) to publicise his situation. He claimed no one would allow him to. Asked if he tried he claimed he didn’t because he knew what he would face.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived as an unauthorised boat arrival in November 2010. He claims to have dual Iranian and Iraqi citizenship and has subsequently provided copies of Iraqi citizenship documents and an Iranian aliens identity card. For reasons set out below, the Tribunal finds the applicant to be an Iraqi citizen only and his application will be assessed as such.
The applicant is a [age] year old Iraqi. He claimed that if he returned to Iraq he would be expelled by Iraqi government security force or by threats.
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.
Although he asked that the impact of his detention on his memory and mental health should be taken into consideration, he offered no documented medical evidence to support this claim. As shown below I find that the inconsistencies evident in the applicant’s evidence were not caused by any medical conditions or poor memory, but rather were the result of a fabricated protection claim.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Nationality and Identity
I do not accept that the applicant is an Iranian citizen. While I accept that he has spent some time in Iran, the most recent valid document was an ID card from the Iranian Office of Alien and Foreign Immigrants Affairs (folio 8) that allowed the applicant to reside in Qum until [October] 2007. I note that the same ID card lists his nationality as Iraqi.
He was given every opportunity to prove that either he or his family were Iranian citizens and failed to do so. Although he claimed his mother and two sisters were Iranian citizens he claimed that he could not provide copies of their Iranian passports because his sisters were the responsibility of their husbands and he had no authority over them or his mother. He also claimed that he didn’t wish to expose them to danger. He was at times vague about the Iranian nationality of his brother but could reasonably be expected to provide evidence of his siblings’ and or mother’s Iranian identity if it existed. I am satisfied that the reason he has failed to produce any such documentation is because they are not Iranian citizens.
The applicant also claimed to be Kurdish. Although he speaks no Kurdish and originally described himself as Arab in his entry interview, I accept that he left or was expelled at some stage from Iraq in the 1970s or 1980s, based on the fact that he resided in Qum (as did many Shi’a Iraqi Kurds). And while there may be other reasons why he had to reside in Qum, I am willing to give him the benefit of the doubt that he is in fact ethnically Kurdish.
Expulsion from Iraq
While I accept that the applicant fled or was expelled from Iraq in the 1970s or 1980s, I do not accept that the applicant was expelled in 2008/2009, or will be expelled from Iraq in the future. The documents he provided indicate that he was issued an Iraqi ID card in December 2008 (folio 14) and a citizenship certificate (folio 13) in June 2009. I do not accept that the Iraqi security forces told him that he had to leave Iraq on his second trip to Iraq. Given he claimed that he received his citizenship on the second trip this would have made it sometime from June 2009 or afterwards.
It lacks credibility as to why Iraqi security forces would expel to Iran someone who was now demonstrably an Iraqi citizen. The Tribunal is unaware of any country information that indicates such expulsions have occurred, nor did the applicant provide any post-hearing when given the opportunity to do so. It is reasonable to believe that if such expulsions did occur they would have been brought to the attention of the UN or national governments.
Residing in Iraq
Because I am satisfied that the applicant is allowed to reside in Iraq he is therefore able to move there permanently. Whilst I note that there have been security challenges in parts of Iraq since the rise of Islamic State, I also note that this has not applied to all of the country. Southern Iraq has been and remains more secure than the rest of the country.[1]
[1] DFAT Country Information – Iraq, 26 June 2017
I further note that the applicant has family and tribal links in the south (where [City 1] is located). He was part of [Tribe 1] which was [was] centred on [City 1]. He was initially vague about the presence of relatives in Iraq but then said that he had relatives on his mother’s side in [City 1] and Baghdad, and his father’s sister-in-law was also in [City 1]. Given he is Shi’a and has existing familial and tribal networks I am satisfied that he would be able to utilise these to access accommodation and be able to subsist.
Kurdish Identity
I am not satisfied that the applicant will be considered an enemy of the country and subject to substantial discrimination, forcibly deported to Iran or tortured and killed. There is no country information to support such a claim, nor was any provided by the applicant. Indeed, country information indicates that they are able to access services and that there is no discrimination in law or policy against Faili Kurds in Iraq.[2]
[2] DFAT Thematic Report – Faili Kurds in Iraq and Iran, 3 December 2014, pp 9 & 14.
Although the same country information indicates that there is a moderate risk of Faili Kurds experiencing societal discrimination, the applicant has family and tribal connections that would likely ameliorate any impact of this were it to occur. Regardless, I am not satisfied that such discrimination, if it occurred, would constitute a well-founded fear of persecution in accordance with Section 5J of the Migration Act.
Other Issues
I do not accept that the applicant’s name was publicly available due to a DIBP data breach in 2014. He had previously been advised that his personal information was never released during the data breach.
I am also not satisfied that the applicant would be in greater danger because he was a returnee from a Western country. He did not provide any objective country information to support such a claim. Country information available to the Tribunal meanwhile, indicates that failed asylum seekers returning from the West are freely able to return to Iraq, and that there is limited evidence to suggest voluntary returnees face difficulties in assimilating back into their communities. Whilst I accept the applicant has not been in the country for periods of time while living in Iran and Australia, I also note that he has a tribal identity and familial connections that will assist in his re-integration.
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 that the applicant is an Iranian citizen, that he was or will be expelled from Iraq after gaining his Iraqi citizenship or that he will be persecuted because of his Kurdish ethnicity, 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.
While I accept that the security situation is unstable in parts of Iraq, I am not satisfied that this alone constitutes a real risk of significant harm. Country information previously cited indicates that southern Iraq (where the applicant has family connections and a tribal affiliation and presumably would return to) has been and remains significantly more secure than the rest of Iraq. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants 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 notsatisfied 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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2145

31 October 2017

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

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