1712880 (Refugee)

1712880 (Refugee) [2020] AATA 5490 (18 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712880
COUNTRY OF REFERENCE:                   Georgia
MEMBER:Rodger Shanahan
DATE:18 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 November 2020 at 8:52am
CATCHWORDS
REFUGEE – protection visa – Georgia – political opinion – United National Movement (UNM) – history of activism and attendance at demonstrations – profile as a local coordinator – charged with marijuana possession – credibility concerns – lack of evidence to support claims – inconsistent evidence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 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 Georgia, applied for the visa on 18 December 2015.
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
The applicant made the following written statement in support of his protection visa application:
I, [the applicant] was born on [date]. I went to school in 1981. After leaving school, I started [specified] works in my village. As there was Unemployment Period, the population began to trade and their source of income was only trading.
This was Eduard Shevardnadze's Presidential Period and People were protesting. Revolutionary actions started in the country against Shevardnadze's government. People demanded the president's resignation. Shevardnadze's opposition party's leader was Mikheil Saakashvili.
Mikheil Saakashvili was the person, who exposed Shevardnadze in illegal transactions and corruption. People came out on the streets, demanding government's resignation.
I was the direct participant of these processes, because I considered, that life could not go on this way and the Shevardnadze government should leave. The new force was required to come to make country stronger and successful. This opposition force was the United National Movement under Mikheil Saakashvili's command.
The Rose Revolution took place on 23'’^ of November of 2003 under Mikheil Saakashvili's command. The protest of thousands of people stopped and resigned the government, after which the presidential election started. As a result of the election, Mikheil Saakashvili became the president of Georgia.
I was the direct participant of these processes. In the mentioned period I joined the party of "the United National Movement". As I was personally involved in the mobilization of the people, on 23^ November of 2003, I took people by buses to the Parliament Building through my party members' help and the Rose Revolution took place.
The democratic government of European values came in Georgia through election under Mikheil Saakashvili's command in 2004. The new reforms have been implemented. Fundamentally changed the structure of the government. Order was established in all field. The corruption was eradicated.
I was the direct participant of these processes in my district. I was solving problems together with my party members. Our life went on this way together with the National Movement till 2011. In 2011 the billionaire oligarch Bidzina Ivanishvili appeared, who decided to come into power. Protest demonstrations started against Mikheil Saakashvili and United National Movement. These processes lasted for a year. On 1st of October of 2012, the parliamentary elections took place and Bidzina Ivanishvili's party 'The Georgian Dream" won in this election.
A number of changes began after new government's arrival. Persecution, arrests, hearings began against National Movement. The general secretary of the National Movement - Ivane Merabishvili was arrested, also the members of the United National Movement: Gigi Ugulava, Bacho Akhalaia and many others. Several of them managed to escape abroad. They started illegal arrests and they put weapons and drugs to people in order of Pressure and blackmail. They needed to expose people in National Movement illegal actions under pressure.
The pressure occurred on almost every representative of each party. I was arrested several times unofficially in order to make me accuse National Movement in illegal activities. I was demanded to confess the actions, I had never heard before. I rejected everything and did not give testimony.
As they did not get the wanted testimony from me, they started blackmailing, intimidating and pressuring me. One day, when I was presenting the meeting together with my party members in [City 1] and returned home, I found the police at my home, who arrested me. They started searching my house. They took out the drug "Marijuana", which did not belong to me. The police put it in my house and they started pressuring on me on this way.
As I was not guilty, I paid the bail and they released me. After that we reached agreement and I was asked to cooperate with them and give them the required testimony any time, they needed.
After everything, I analyzed their actions, my condition and made decision of leaving the country. After several days I left my house and went to my relatives to avoid more pressure. I started to find ways to make any country visa. I contacted my acquaintances and asked for help. I wished to go from Georgia far away.
In several days, I was contacted by my acquaintance, who told me, that he could help me in this case, he suggested me the Australian Visa and I agreed, because I knew, that Australia was democratic country and I would not in danger there. He took my passport and money and they made Australian Visa for me.
After getting the Visa, I came to Australia. I asked Australian government the shelter in order to have the right of a normal life.
AAT Hearing
The applicant claimed that he was very anxious and that he had no idea who was doing the hearing and he would be happy to do this if it was in a court room. He refused to commence the hearing. He also asked for the name of the interpreter and he was told that the interpreter’s name would not be given to him. He claimed that he did not wish to attend the hearing if he wasn’t told the interpreter’s name or the member’s name.
He was advised that he had been given the opportunity to attend the hearing and had accepted it. If he wished to discontinue it based on these concerns then it was likely his visa would be refused as a result. He claimed that he understood this but wanted to come and attend in person and he didn’t know the names of the people attending at the Tribunal’s end. He was told that he had already been given the member’s name and would not be told the interpreter’s name. The member was experienced in conducting hearings by a range of means, including telephone. He was advised that procedural fairness and natural justice requirements were being met.
He was then advised that if he refused to continue with the hearing then the result would likely be that unless he provided evidence at hearing then based on available evidence it was likely that the decision would be affirmed, or he could continue. He said he didn’t want to give the interview via phone. He was told that he had accepted the telephone hearing and, given the Tribunal had not accepted that he had any compelling reasons that meant he was unable to continue with a telephone hearing, if he refused to continue and provide evidence the decision would likely be affirmed on the basis of the evidence at hand. If he had concerns regarding the identity of the member or the interpreter needed to have raised them prior to the hearing.
He claimed that from the very beginning he had said he didn’t want to attend on line or via telephone but would attend in person. He was again told that the process was the same and the government was happy for this process to occur in this manner, which was why he was advised in the absence of compelling reasons why he could not attend a video hearing, he was advised that this format would be the one under which his case was heard. He was told he needed to make his decision about his attendance and he then said he was ready to continue.
He claimed that if he returned to Georgia he was afraid that the Georgian government would arrest him again because he was active in the national movement. Since the government had taken power under Shaakashvili opposition groups members had been arrested. Asked what the name of the party of which he was a member, he said it was the National Party of Georgia. Asked who led it he said that it was Mika Melia.
He was asked if he knew everything in his business and protection visa applications and that he knew it to be true and correct and he said that he didn’t know as he paid money and they made the visa for him. Asked about his protection visa application, he said it was all true.
Asked why he would be targeted as an individual because of his membership of the party he claimed that he was arrested and sentenced with the change of government. Asked what years he was talking about, he claimed it was from 2012. Asked how many times he was arrested, he claimed that he was officially arrested in 2015 but the police had visited him several times before.
They would usually come to him or ask him to come to the station and ask him to leave the United National Movement (UNM). Asked what his role in the UNM was, he claimed that he organised meetings in his village – he was the coordinator. He also organised protest meetings to be attended by local supporters by bus. He did this during Shevernadze time as well.
Asked when he first became a member of the UNM, he said it was 2003 – he was still a member. Asked if he had been active since arriving in Australia, on social media or maintaining contact with them in Georgia, he claimed that he didn’t use the phone as it could be dangerous for his family. Asked if he had a social media profile that would show him as an active member of the UNM, he claimed that government members would check it so he didn’t use it.
He was asked if he had any photos from 2003 onwards that would show him as an active member of the UNM. He said he had a card showing him as a member. He was asked if he had anything that would indicate his profile as a local coordinator as the Tribunal had to determine whether he was a member or whether he had a profile with the party. He repeated that he had an ID card. He was told that the Tribunal needed to be comfortable that the applicant had some kind of profile with the Georgian authorities, so if he couldn’t show any other evidence or indication of activity in Australia then he didn’t have much to show he had a profile with the group.
He was asked if he had any of this. He asked whether if he had any evidence of telephone conversations with members, and he was told the Tribunal needed to have some indication of a history of activism and attendance at demonstrations. He claimed he had meetings in his region face to face with people. He had no photos here but he could provide them. He had not been asked for them before and it was put to him that the Tribunal assumed he would have been gathering this evidence well in advance of the hearing.
It was put to him that the Tribunal couldn’t find evidence that the Georgian authorities were arresting low-level UNM members and he was asked if he had any evidence. He claimed he provided evidence at the previous hearing. It was put to him that the arrest warrant he had previously provided only said he had been arrested for marijuana, and he said this was planted. It was put to him that it could also be possible that he was actually caught with marijuana.
He claimed that at this time the authorities were using marijuana or weapons discoveries as reasons to arrest UNM members. He was asked to provide any evidence that would indicate that he was a UNM member and a local organiser. He said no one would have these documents. He was also asked for any evidence that he had been politically active in Australia since arriving in 2013. He said he didn’t know how he would get this. It was put to him that there was currently a lack of evidence and it was up t him to provide evidence to support his case. He claimed he hadn’t been told to provide this otherwise he would have, and he was advised he would be given time after the hearing and he said he appreciated this and would provide it.
Asked how he received the court document, he claimed the court provided it and the solicitor provided it to him after he was released. The solicitor gave it to him after he was released from jail and he brought it with him to Australia.
Asked if he spent time in jail because of this conviction, he claimed that he was jailed for being a UNM member and the marijuana charge was trumped up to target him for his political affiliation. Asked if he was released on bail or at the end of his sentence, he claimed that he was released on bail. Asked if he had another court appearance waiting for him, he claimed that he didn’t know as he left the country. It was put to him that he had a solicitor, and he claimed that he had no contact with him since he left.
Asked if he had his solicitor’s email or phone number, he claimed that his solicitor wasn’t answering his emails or calls. He was asked if he was therefore in contact with him and he said that the solicitor was no longer in the country. It was put to him that he must have had a Georgian address where court documents or warrants were sent, and eh claimed that his family member received something but he doesn’t remember what it was. It was put to him that this was quite vague and that surely he would be interested in the type of legal issues he was facing.
He said that he left the country and didn’t care what they wrote. He was told the Tribunal did care and would require a copy of the document. He claimed it happened a few years ago and the family member just mentioned it, but he would provide it if the Tribunal required it.
He left Georgia because he believed he would be arrested and sentenced again. He contacted one of his relatives who helped him get a visa. Asked how they did this, he claimed that they asked someone and he had to pay money (USD 15,000) and he got a visa to Australia. He didn’t request any country, just to leave Georgia. He was asked why he wouldn’t go to Germany or France which were closer and therefore cheaper to get to and had more Georgians.
He said he didn’t care where he went and he was asked why he didn’t get a cheaper, closer option. He repeated that he just wanted to leave the country. Asked if the reason he left was to apply for protection, he claimed that Australia was one of the best countries to be protected. He was asked the question again and he agreed that he came to Australia to claim protection and his aim was to leave Georgia as soon as possible.
Asked if he booked his own flights, he claimed they did everything. He was asked whether he knew the system for applying for protection before he came to Australia, he claimed that he was given information about Australia being a good country for protection. Asked if he knew the mechanics of applying, he claimed he didn’t know. Asked why he hadn’t done research before leaving, he claimed that he was told he had to apply to the Immigration Department and they would look after him.
Asked if he was married before he left Georgia he said he was divorced. He was divorced in 2015 when he was arrested. He didn’t remember the exact month but thought it was April. He said he would provide a copy. Asked why he got divorced so close to leaving Georgia. He claimed his wife sought divorce after his arrest. She didn’t like him being an activist. It was put to him that he had been active for 12 years in politics, and he said she didn’t want him after he had been arrested.
He knew no one in Australia, nor did he know friends of anyone. He landed [in] September 2015 at Perth. He did nothing there as he didn’t know the language or anyone. Asked why the organisers sent him to Perth, he claimed that they told him he had to go to Perth as he was on a business visa. He agreed that he knew the visa he entered Australia on was not in accordance with his purpose for coming.
After Perth he found out there was a big population of Georgians and Russians in Sydney. The people who organised his visa had told him this. He then flew into Sydney. He got off the plane in Sydney, not knowing the country or any English and was asked what he did. He said he found the train and then went to [location], went to the park outside and then walked around the city. He heard someone speaking Russian and he knew some words in Russian and spoke to them and they took him to their home near [location]. He stayed with them for a few days and they knew one Georgian person so they organised for them to meet.

After this, he then went to stay with the Georgian family. He began working as he didn’t have enough money. Asked if he ever met anyone who he knew, or who knew people he knew in Georgia while in Sydney he said he had never met anyone he had met in Georgia.
Asked why, if he had no money when he came here, why he didn’t go to somewhere cheaper and closer like France or Germany so he would have had some money. He claimed that in 2015 it was difficult for Georgians to go to these countries.
He was told about s 424AA and it was put to him that he had told DIBP that a girl came out from Georgia 4-5 months before his interview and gave him his court documents, yet he had told the Tribunal that he had brought them out with him from Georgia. He had also told the DIBP interviewer that when he came to Sydney he met a Georgian, [Mr A] who was the relative of someone he knew in Georgia, yet today he said how he met some Russians in Sydney and that he had never met anyone he knew from Georgia while in Sydney. These could go to issues of his credibility.
He claimed that he was confused and anxious while talking to the DIBP official. It was also put to him that he had claimed he left Georgia specifically to seek protection and that he knew he had to apply to the Immigration department for protection. Yet he waited for a month after getting his via to leave Georgia and didn’t apply for protection until nearly three months after he arrived. These weren’t the actions of someone seeking protection – the tribunal had concerns that he had come here for economic reasons and knew people already here before he arrived. He had also come to Australia on a visa under false pretences.
He claimed he left Georgia as soon as possible and when he came here he didn’t know how to apply or what documents were required. He was asked what he did to find out given he was befriended by two Russians who lived near [location] where the DIBP was. He claimed that he could hardly converse with them. It was put to him that he could converse enough to befriend them for them to invite him to satay with them and then to put him in contact with some Georgians so he appeared to be able to have some communication with them.
But it was also reasonable to believe that he would have done some research before he came to Australia to find out what he needed to do and bring in order to apply for protection. The fact he hadn’t didn’t fill the Tribunal with confidence that he came here to apply for protection. He said that he didn’t know English so didn’t know what he had to do.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a business visa [in] September 2015 that was valid [until] December 2015. He then applied for a protection visa on 18 December 2015. I have sighted a copy of his passport and accept that Georgia 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 initially said that he didn’t want to take part in the hearing because he didn’t know the names of the member and the interpreter. He was told the member’s name in accordance with normal procedures and that he would not be told the interpreter’s name. He had initially asked for a face-to-face hearing but provided no compelling reason for this. He was advised that he had accepted the hearing invitation prior to attending. The hearing proceeded. There was nothing during the hearing that indicated he may have had any difficulties in presenting his claims and evidence. Indeed, he was given additional time following the hearing to provide evidence that he claimed to have back in Georgia.
The applicant is a [age] year-old, divorced male. He claimed that he feared being arrested by the Georgian government because of his role within the opposition UNM.
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. 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.
Political Activity
I do not accept that the applicant is or ever was a member of the UNM or that he ever has been arrested for any political activity. He was not able to provide any evidence that would support such a claim. He stated that he had provided a party ID card to DIBP however he could not provide the original nor a copy of it, nor was there any evidence on his Departmental file that one had been provided to the Department.
He could provide no photos of him undertaking any political activity in Georgia which, given his alleged role as the village head of UNM is strange. He stated that he could provide such photos post-hearing from Georgia and was given time to do so however he never provided any photos. He had no social media profile that indicated he had any past or ongoing links with the UNM. I do not accept that he didn’t do this because the government would monitor his activity.
He provided no evidence that the government monitored the social media outputs of low-level party functionaries, and the party itself is a legally functioning Georgian party so it is again strange that he would not have any record of any contact with members of the party in Georgia, or make comment about UNM-related political issues given he had been with the party since 2003.
Because I do not accept that he was ever a member of the party it follows that he has never been visited by the police, arrested by the police or that the police ever blackmailed, intimidated or pressured him, that he was asked to give false testimony about the party. Nor do I accept that he was charged with a fabricated charge relating to marijuana possession as part of a program against political activists.
I have taken into account court documents that he provided that show he was charged with marijuana possession. I am willing to give them some weight, but only insofar as they prove that he was arrested on a marijuana charge. The documents say that he was released on bail, so presumably he had another court appearance which he never attended. He was asked whether he had received subsequent documents relating to another appearance and he said a relative had received them. He undertook to provide them to the Tribunal but never did.
I also note that he was inconsistent in saying how he received the legal documents. He told DIBP that they had been hand delivered to him in Australia by a woman who came out from Georgia, yet he told the hearing that he had been handed them by his solicitor in Georgia and brought them out to Australia with him.
The inconsistency in how he came by them and the inability to provide any subsequent court documents raises questions regarding the credibility of the applicant. This further reinforces the Tribunal’s finding that the applicant has not been truthful about his alleged membership of the UNM. I am satisfied that the court documents are either fake or that they are genuine but relate to a marijuana charge that he may have skipped bail on, or received a sentence that he hasn’t revealed to the Australian authorities. Regardless, I do not accept that the court documents are related in any way to any political party membership.
Other Issues
The applicant’s delay in applying for protection is also not indicative of someone who is fleeing persecution. Despite paying USD 15,000 to falsely come to Australia on a business visa specifically to apply for protection, he waited for nearly three months before he applied. I do not accept that his poor English or lack of knowledge regarding documentation accounted for the delay.
He knew he was coming to Australia and could have researched the requirements before he left Georgia. He was told that he had to apply through the Immigration department, and was staying for a period near [location] where the Department offices are located in Sydney yet he made no effort to find out the process or to visit the offices. He was able to make himself understood sufficiently by the Russian speakers to secure lodging with them and for them to introduce him to Georgians in Sydney so it is reasonable for him to have found out that the offices he needed to go to were in the very suburb in which he was staying.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever a member of the UNM, arrested, blackmailed, intimidated or pressured because of it, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.
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 Georgia, 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 5490

18 November 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction