1713192 (Refugee) [2017] AATA 2084 (27 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1713192
COUNTRY OF REFERENCE: Kenya
MEMBERS:Dr Christopher Kendall, Deputy President (Presiding)
Dr Colin HuntlyDATE:27 October 2017
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 27 October 2017 at 2:55pm
CATCHWORDS
Refugee – Protection Visa – Kenya – Particular social group – Homosexual –Particular ethnic group – Kalenjin tribal group – Fear of persecution – Fear of political violence – Witness credibility – Previous criminal history
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225 at 233
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIMA v Respondent S152/2003 (2004) 222 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMIA [2003] FCAFC 65
SDAQ v MIMIA (2003) 129 FCR 137
Selliah v MIMIA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZQNO v MIAC [2012] FCA 326Any 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] June 2017 to refuse to grant the applicant a Protection visa (the visa) under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Kenya, applied for the visa [in] May 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided at s.36(2)(a) or 36(2)(aa) of the Act.
On 21 June 2017 the applicant lodged an application with the Tribunal seeking a review of the delegate’s decision not to grant a Protection visa to the applicant. The applicant provided the Tribunal with a copy of the delegate’s decision record which forms the basis of this review. The applicant was not represented in this review by a registered migration agent.
Hearing
At the time of this review, the applicant was a…
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CaseChat Overview and Summary
The applicant, a national of Kenya, sought a protection visa in Australia. The dispute concerned whether the applicant met the criteria for a protection visa, specifically under the 'refugee' criterion (s.36(2)(a)) or the 'complementary protection' criterion (s.36(2)(aa)) of the *Migration Act 1958* (Cth). The applicant claimed he would face persecution due to his membership in two particular groups: LGBTQI men living in Kenya, and members of the Kalenjin tribal group in Kenya, fearing election-related violence. The decision was made by the Tribunal, comprising Deputy President Christopher Kendall and Member Dr. Colin Huntly.
The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of his sexual orientation or his membership in the Kalenjin ethnic group, and if such persecution would be the essential and significant reason for harm. Additionally, the Tribunal had to consider whether there was a real risk of significant harm if the applicant were removed from Australia to Kenya under the complementary protection criterion, taking into account whether effective protection measures were available or if relocation to a safer area within Kenya would be reasonable. The Tribunal also had to assess the applicant's credibility in light of his claims and any independent country information.
The Tribunal concluded that the applicant did not meet the criteria for a protection visa. Regarding the refugee criterion, the Tribunal found that the applicant's fear of persecution as an LGBTQI man in Kenya was not well-founded, noting that general discrimination against LGBT persons in Kenya did not reach the level of persecution. Furthermore, the Tribunal found that the applicant's claims regarding election-related violence affecting the Kalenjin tribal group were not substantiated to the required standard. The Tribunal also considered the complementary protection criterion and found no substantial grounds to believe there was a real risk of significant harm upon removal to Kenya, particularly noting the possibility of relocation within Kenya.
Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that Australia did not have protection obligations towards him under the *Migration Act 1958*.
The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of his sexual orientation or his membership in the Kalenjin ethnic group, and if such persecution would be the essential and significant reason for harm. Additionally, the Tribunal had to consider whether there was a real risk of significant harm if the applicant were removed from Australia to Kenya under the complementary protection criterion, taking into account whether effective protection measures were available or if relocation to a safer area within Kenya would be reasonable. The Tribunal also had to assess the applicant's credibility in light of his claims and any independent country information.
The Tribunal concluded that the applicant did not meet the criteria for a protection visa. Regarding the refugee criterion, the Tribunal found that the applicant's fear of persecution as an LGBTQI man in Kenya was not well-founded, noting that general discrimination against LGBT persons in Kenya did not reach the level of persecution. Furthermore, the Tribunal found that the applicant's claims regarding election-related violence affecting the Kalenjin tribal group were not substantiated to the required standard. The Tribunal also considered the complementary protection criterion and found no substantial grounds to believe there was a real risk of significant harm upon removal to Kenya, particularly noting the possibility of relocation within Kenya.
Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that Australia did not have protection obligations towards him under the *Migration Act 1958*.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The Tribunal also notes the following extract at [2.3.14] from the same Country Information source:In general the level of discrimination and abuse faced by LGBT persons from non state actors is not such that it will reach the level of being persecutory or otherwise inhuman or degrading treatment. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason of his membership of the particular social groups; LGBTQI men living in Kenya; and, members of the Kalenjin tribal group resident in and around the area of Eldoret, in Kenya, due to election-related violence. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of reference According to the applicant’s movement record, he arrived in Australia using his most recent Kenyan passport [in] June 2015 on a [student] visa. The Tribunal has had regard to the Departmental files and has interviewed the applicant in person. On the basis of the above evidence, the Tribunal finds that the applicant is a man born on [birth date], and is a national of Kenya. The Tribunal, therefore, finds that the receiving country for the applicant is Kenya, for the purposes of s.36(2)(aa) of the Act. Having regard to all the evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country. The Applicant is, therefore, not excluded from Australian protection by the operation of s.36(3) of the Act.Applicant’s Claims At the beginning of the hearing, the Tribunal confirmed with the Applicant that his claims for protection, as written by the applicant in his application for protection in their entirety, are as follows:·I left Kenya as a student with an intention to seek protection in Australia. (Form 866C, Question 89 “Why did you leave that country?”);·I will likely face persecution because of my sexual orientation. (Form 866C, Question 90 “What do you think will happen to you if you return to that country?”);·No. (Form 866C, Question 91 “Did you experience harm in that country? Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)”);·[No response]. (Form 866C, Question 92 “Did you seek help within the country after the harm? Give reasons for why you did not try to seek help”);·No. I did not try to move because of my age and the legal processes preventing me from migrating. (Form 866C, Question 93 “Did you move, or try to move, to another part of that country to seek safety? Give details (including where you try to move, why you are unable to move or where you move to and what happened)”);·Yes. My family is likely to miss treat me because of my sexual orientation being gay. (Form 866C, Question 94 “Do you think you will be harmed or mistreated if you return to that country? Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)”);·No. The Constitution of Kenya has no provision that entails the protection of diverse cultures like homosexuality. (Form 866C, Question 95 “Do you think the authorities of that country can and will protect you if you go back? Give details about why you think the authorities could not, or would not, protect you”); and·No. Because of the bureaucracy surrounding the process of relocation. (Form 866C, Question 96 “Do you think you would be able to relocate within that country? Give details about why you are unable to relocate”).
Decision
Reasons for decision
Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act. CONCLUSION For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2). The Tribunal affirms the decision not to grant the applicant a protection visa.Dr Christopher KendallDeputy PresidentDr Colin HuntlyMemberAPPENDIX A – RELEVANT LAW76.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, the applicant 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.Refugee criterion77.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.78.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. 79.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 themself 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). 80.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 below. 81.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[5][5]Chan Yee Kin v MIEA (1989) 169 CLR 379.82.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).Complementary protection criterion83.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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).84.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. 85.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.Section 499 Ministerial Direction86.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.Applicant credibility87.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[6] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. [6]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.88.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[7] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[8] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. [7](1996) 40 ALD 445.[8]At 482.89.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[9] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[10][9](1996) 185 CLR 259.[10]At [25].First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.90.The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[11] Nevertheless, as Burchett J counselled,[12] it is necessary to:[11][1997] FCA 1198 ( accessed 15 February 2017).[12]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.91.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[13] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[14] Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[15] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[16] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[17] [13]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).[14]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. [15]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed). [16]MIMA v Rajalingam (1999) 93 FCR 220. [17](1999) 197 CLR 510 at [191].… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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