1713947 (Refugee)

1713947 (Refugee) [2019] AATA 6833 (31 October 2019)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713947
COUNTRY OF REFERENCE:                   Latvia
MEMBER:Brendan Darcy
DATE OF DECISION:  31 October 2019
DATE CORRIGENDUM
SIGNED:14 November 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The name ‘[Incorrect Spelling]’ on page 1 should be replaced with ‘[Mr A]’.
Brendan Darcy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713947
COUNTRY OF REFERENCE:                   Latvia
MEMBER:Brendan Darcy
DATE:31 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 October 2019 at 9:19am
CATCHWORDS
REFUGEE – protection visa – Latvia – race – Russian – religion – Orthodox – imputed political opinion – opposes Latvian chauvinism – poor economic conditions – fears ultra-national criminals – far-fetched and remote chance of serious harm – ministerial intervention requested – unreasonably separated from young family – promising contribution to Australian sport – capacity of applicants to contribute meaningfully to Australia – emotional and psychological impact – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 351, 417, 499, 501J
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIAC v SZQRB [2013] FCACA 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of the Republic of Latvia (Latvia), applied for the visas on 19 December 2014. The delegate refused to grant the visas on the basis that while the first applicant was generally credible he exaggerated the real chance of serious harm and the real risk of significant harm to him and his family.
In this decision, the first named applicant is referred to as the first applicant or the applicant; the second named applicant is referred to as the second applicant or the applicant’s spouse; and the third named applicant as the third applicant.
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) of the Act. 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) of the Act, 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 of the Act, 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 policy guidelines prepared by the Department of Immigration the Department – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant was born in [date] in [Town 1] in Latvia; the second applicant was born on [date] in Latvia’s capital city, Riga; and the third applicant was born on [date] in Riga.
The second applicant has also been known as [Ms B] (name pertaining to her first marriage) and [Ms C] (birth/maiden name). She claimed to be the first applicant’s married wife. A copy of the first and second applicants’’ marriage certificate is on the Departmental file ([file number]).
The first and second applicants claim to be the biological parents of the third applicant.
The applicants all claim to be citizens of Latvia. The applicants’ Latvian passports are on the Departmental file.
With the first applicant as the primary applicant, the applicants and the second applicant’s biological daughter were granted [Class A] visas on 24 February 2010. The applicants arrived in Australia [in] May 2010.
On 23 August 2012, the applicants applied for further [temporary] visas which were granted on 17 October 2012.
The applicants’ student visas expired on 5 September 2013 and they became unlawful non-citizens after this date. The first applicant approached the Department’s client resolution unit and he was granted a bridging visa for his departure [in] October 2013. The other applicants were granted bridging visas for departure [later in] October 2013.
The applicants applied for [Class B] visas but the application was found to be invalid on 5 November 2013. The applicants subsequently applied to the Tribunal, differently constituted as the Migration Review Tribunal, to review the invalid application.
On 27 November 2013, the applicants invalidly applied for [Class C] [visas]. The applicants applied to the Tribunal, differently constituted, for review.
On 23 December 2013, the Tribunal found it had no jurisdiction in relation to its powers to review the invalid [Class B] visa application. On 14 November 2014, the Tribunal again found it had not jurisdiction in relation to its powers to review the invalid [Class C] visa application.
On 18 December 2014, the applicants validly lodged an application for onshore Class XA Subclass 866 protection visas.
Written claims at the time application
The first applicant submitted written claims contained his 866 Form at the time of application.
Submitted material included:
·     The applicants claimed the first applicant is at risk of harm in Latvia because of his Russian ethnicity and background. His parents came from Russia and he has a Russian sounding name and belongs to the Orthodox Church (the Latvian Orthodox Church is under the jurisdiction of the Moscow Patriarchate);
·     The first applicant claimed that he is at risk because of economic reasons including poor economic conditions in Latvia and his family’s lack of economic resources in Latvia;
·     After seven years in Australia, the applicants have lost their connection to Latvian society and are at risk because of this;
·     The ethnic tensions between Latvians and Russian groups make it difficult to deal with business and government and those tensions have escalated in recent years;
·     The Russian language is defined as a foreign language and laws prohibit its use on television, radio and in official situations. The first applicant claims he speaks Latvian fluently and without an accent so people are not aware of his Russian background unless they are aware of his name;
·     The applicants used all their financial resources to fund their travel to Australia and do not own any property there. On return to Latvia, the applicants will have no choice but to live in a very poor and dangerous area. There is no ongoing welfare support for people who have lived overseas.
·     The applicants further claim the first applicant will not have the rights of a citizen in other European Union member countries and they will not be eligible for welfare and will live in poverty;
·     While it will be possible to live in another EU country, the first applicant will find it hard to learn another language and there are not many other English speaking countries in Europe;
·     The first applicant claimed to fear discrimination from the government of Latvia and he has experienced such discrimination in the past, for example, when speaking Russian to a government official. The government, it is further claimed, denies there is a problem and does not protect its citizens;
·     The applicants also fears ultra-national criminals in Latvia and that Latvia has one of the highest levels of corruption in the world;
·     Before departing for Australia, the first applicant ran a [Business 1] that was badly affected by the economic downturn in 2008 and he sold his business to fund the applicants’ travel to Australia. The applicant claimed they brought [a large amount of] Australian dollars with them to Australia.
·     Europe, it is claimed, is not a safe place because of terrorist attacks and the behaviour of African migrants. It is also claimed Europeans will harm him based on his nationality.
·     The first applicant claimed that he could obtain Russian citizenship but has not done so.
The applicants submitted a number of articles about Latvia to the Department indicating the following:
·     Council of Europe press council profile from ECHR internet site indicating reported human rights incidents or incidents of concern in Latvia;
·     ‘Crimea crisis sharpens Latvia ethnic tensions’ from BBC News dated 26 March 2014;
·     ‘State Language Centre commences inspection into Lembergs’ speech in Russian’, Baltic News Network, dated 8 March 2017;
·     ‘Russophopia: Latvian mayor fined for using Russian on official Facebook account’, Ints Kalnins/Reuters dated 28 February 2017.
The first applicant also provided evidence on the other applicants’ behalf at an interview with the Department which he attended on 15 May 2017.
A delegate on behalf of the Minister refused to grant the applicants protection visas on 30 May 2017.
Evidence before the Tribunal
On 29 June 2017, the applicants applied to have the delegate’s refusal decision reviewed by the Tribunal, constituted as the Administrative Appeals Tribunal (the Tribunal) with the decision record attached.
The applicants were invited to a hearing to be scheduled on 1 August 2019. The hearing was a combined hearing with a related review applicant (AAT no. [specified]).
Only the first applicant attended the scheduled hearing. The first applicant said that he would provide evidence on behalf of the second and third applicant.
During the scheduled hearing, no interpreter was required and no representative for any of the review applicants was present.
Review applicant [specified] provided oral evidence via a teleconference facility. She indicated that she was the biological child of the first applicant and that she was an adult who had a [temporary] visa pending. She also claimed that she was not aware that a protection visa had been pending. This review applicant indicates that she would consider withdrawing her protection visa review application after the hearing.
Review applicant [specified] withdrew her protection application on 26 August 2019.
Ministerial Intervention request
The applicants submitted a number of documents to support the Tribunal referring this matter for a favourable Ministerial Intervention recommendation.
The applicants’ request is based on the claim that the third applicant should be allowed to remain in Australia to apply for a [temporary] visa as he is a promising [young] [sports] player whose skill is of exceptional benefit to Australia and who is supported by elite [sports] coaches, and that the third applicant would be a benefit to [sport] in Australia.
Attached to the request was a letter of support from Mr [D], the third applicant’s coach dated 29 August 2019.[1] The letter indicates the third applicant is a top level junior [sports] player who is preparing to transition to international junior level competitions. Also on the Tribunal’s file is a letter from another professional [sports] coach, [indicating] the third applicant’s potential to become a professional [sports] player.[2]
[1] AAT Folio 67.
[2] AAT Folio 68.
Also attached in relation the third applicant is a letter from a [specialised] instructor who is training the third applicant for a [qualification].[3]
[3] AAT Folio 66
It was further claimed in a submitted letter addressed to the Minister and signed by Mr [E] of [Town 2] in the State of [State 1] (dated 12 September 2019) that he is an Australian citizen and the fiancé to his de facto spouse, [Ms E] (Review applicant [specified]). The letter claims that he has known the family for almost three years and that Mr [E] and [Ms E] are the biological parents of [Child 1]. It is claimed that the applicants provide considerable and continuous support to him, [Ms E] and [Child 1] and that it would be emotionally and materially devastating if the applicants were required to leave Australia.[4] Also submitted was a copy of[Child 1]’s birth certificate and Mr [E]’s Australian passport.[5]
[4] AAT Folio 64-65.
[5] AAT Folio 62,64.
Lastly, it was claimed the second applicants’ departure would negatively impact on an Australian citizen, [Ms F], who employs the second applicant as a qualified [Occupation 1]. The applicants submitted evidence regarding the second applicant as an employee at a [specified] centre in [Suburb 1] in the State of [State 1], and regarding her [qualification].[6] A letter addressed to the Minister dated 12 September 2019 from the second applicant’s employer, Ms [F] outlines the second applicant’s skills, duties and positive contribution to her business and the wider community.
[6] AAT Folio 51-60.
A later submission (11 October 2019) indicated a number of [sports] results and statistics; a letter to the [Named] Centre in [State 1] from Mr [D] indicating the third applicant is transitioning into top level [sports tournaments and that he has achieved high enough rankings to compete in international level competitions; and extensive health and fitness information pertaining to the third applicant.[7] The representative stated the submitted information indicates the extent to which the third applicant’s coaches and parents have invested into his [sports] career.
[7] AAT Folio 71-155.
Non-disclosure notices
There are no non-disclosure notices attached to the applicants’ Departmental file.
Country information: Latvia
There are no country information reports on Latvia prepared by DFAT.
Below is an extract of the most relevant paragraphs from US State Department’s Latvia 2018 Human Rights Report, that has been considered by the Tribunal:
Executive Summary
The Republic of Latvia is a multiparty parliamentary democracy. A unicameral parliament (Saeima) exercises legislative authority. Observers considered the elections on October 6 for the 100-seat parliament to be free and fair.
Civilian authorities maintained effective control over the security forces.
There were no reports of egregious human rights abuses.
The government took steps to investigate and prosecute officials who committed human rights abuses in some instances, although significant concerns remained regarding accountability on corruption-related issues.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were no reports that the government or its agents committed arbitrary or unlawful killings.
b. Disappearance
There were no reports of disappearances by or on behalf of government authorities.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices. In the first seven months of the year, the ombudsman received eight complaints from prison inmates of prison officials’ using violence against them. These complaints were forwarded to the Internal Security Bureau for investigation. Separately, in the first six months of the year, the prison administration received 27 complaints from prison inmates (four from the same person) of prison officials’ using violence against them. These complaints were also forwarded to the Internal Security Bureau for investigation. As in previous years, the Council of Europe’s Committee for the Prevention of Torture (CPT) reported in 2017 there were complaints of physical mistreatment of detained individuals.
[…]
d. Arbitrary Arrest or Detention
The constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.
Role of the Police and Security Apparatus
The State Police, Security Police, and State Border Guards are subordinate to the Ministry of Interior. Municipal police are under local government control. The armed forces, the Defense Intelligence and Security Service, Constitution Protection Bureau, and National Guard are subordinate to the Ministry of Defense. The State Police and municipal police forces share responsibility for maintaining internal security. The State Border Guard and the armed forces, the Defense Intelligence and Security Service, the Constitution Protection Bureau, and the National Guard are responsible for external security but also have some domestic security responsibilities.
The State Police are generally responsible for conducting criminal investigations, but the Security Police, the financial police, military police, prison authorities, the Bureau for Preventing and Combating Corruption (KNAB), the tax and customs police, the State Border Guard, and the Internal Security Bureau also have specific criminal investigative responsibilities. The Security Police are responsible for combating terrorism and other internal security threats.
Civilian authorities maintained effective control over the State Police, the Security Police, State Border Guards, the armed forces, the financial police, the military police, prison authorities, KNAB, and other security forces, and the government has effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving the security forces during the year.
[…][…]
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
The law provides for an independent and impartial judiciary in civil matters. It is possible for individuals and organizations to bring a lawsuit through domestic courts seeking civil remedies for human rights violations. After exhausting the national court system, individuals may appeal cases involving alleged government violations of the European Convention on Human Rights to the European Court of Human Rights.
[…][…]
National/Racial/Ethnic Minorities
NGOs representing minority groups claimed that discrimination and harassment of national minorities was underreported to authorities. Through July the ombudsman did not receive any written complaints of racial or ethnic discrimination.
In the first six months of the year, police initiated two criminal cases for incitement of social hatred and enmity; both remained under investigation.
The Romani community continued to face widespread societal discrimination and high levels of unemployment and illiteracy. According to the CSB, there were 5,082 Roma in the country.
[…][…]
d. Discrimination with Respect to Employment and Occupation
Labor laws and regulations prohibit discrimination, but employment discrimination on the basis of citizenship is not prohibited. Following Soviet-era russification and relocation programs and the creation of a sizeable Russian-speaking minority, the government requires the use of Latvian as the officially recognized language where employment activities ‘affect the lawful interests of the public.’ Citing the continuing political and economic threat posed by Russia to Latvia, the government restricted some sensitive civil service positions for candidates who previously worked for the former Soviet intelligence apparatus.
There were instances of hiring and pay discrimination against women, particularly in the private sector. Because this type of discrimination was underreported, during the first eight months of the year the ombudsman did not open any cases of employment discrimination.
Employment discrimination also occurred with respect to sexual orientation, gender identity, and ethnicity. Persons with disabilities experienced limited access to work due to a lack of personal assistants, poor infrastructure, and absence of specialized programs. The Romani community faced discrimination and high levels of unemployment.
ASSESSMENT OF CLAIMS AND FINDINGS

All three applicants provided copies of their Latvian issued passports which are on the Departmental file ([specified]).[8] Those passports indicate the applicants are citizens of the Republic of Latvia (Latvia). With interest, the Tribunal notes the first and second applicants were citizens of the Union of Socialist Soviet Republics (USSR) until its collapse and were conferred Latvian citizenship in 1992.
[8] [File number] Folios 22-58.
Based on these documents and without evidence to the contrary, the Tribunal finds that all three applicants are citizens of Latvia, that Latvia is each of the applicants’ country of nationality for the purposes of the Act’s definition of refugee status, and that Latvia is their receiving country for the purposes of complementary protection.
Third country protection
During the scheduled hearing, the Tribunal discussed with the first applicant whether they were able to enter and reside, temporarily or permanently, in a third country for the purposes of s.36(3).
In 2004, Latvia was admitted into the European Union as a full member. Since 2007, Latvian citizens travelling to other European Union nations are able to remain up to 90 days in any 180 day period, for tourism, to visit relatives or friends, or for business purposes, but not to work. The exemption applies to all EU countries, except Ireland and the UK, plus Iceland, Liechtenstein, Norway and Switzerland. Visas for visits exceeding that period remain subject to national procedures.[9] The first applicant made a number of claims regarding the reasons that it was not safe for the applicants to enter and reside in other EU countries.
[9] Visa policy of the Schengen Area, European Commission website, Migration and Home Affairs EU, Visa Policy, >
Based on the available evidence, the Tribunal finds the applicants have the temporary right to enter and reside in (Schengen Area) states in Europe, for the purposes of s.36(3).
The Tribunal also notes the first applicant claimed to have eligibility to citizenship of the Russian Federation, but did not claim to have any current citizenship or residency rights to that country.
However, the Tribunal is not required to consider whether the applicants are excluded from Australia’s protection obligations under s.36(3), as it has restricted its findings to s.36(2)(a) and s.36(2)(aa).
Membership of the same family unit (MSFU)
First and second applicants
At the time of application, the first applicant claimed his legal wife under Latvian law is the second applicant. The applicants submitted a certified copy of a matrimony certificate issued in Ukraine with an accompanying certified translation.[10] The translation indicates the first and second applicants were married in 2002 in Latvia. The first applicant claimed at the hearing this was his second marriage as well as the second applicant. It is also claimed the first and second applicants have two biological children who are now adults. Based on the information before the Tribunal and with no evidence to the contrary, the Tribunal is satisfied the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies r.1.12(4)(a) of the Regulations, that she has membership of the same family unit as the first applicant for the purposes of this application for review.
Third Applicant
[10] [File number] Folio 49-52.
The Tribunal accepts the third applicant is at the time of this decision a minor and that he is the biological child of the first and second applicants who are in a genuine spousal relationship.
Under r.1.12 (4)(b) of the Regulations, a person can be considered a member of the principal applicant's family unit if the person is a dependent child of the family head or a spouse or de facto partner of the family head. At the time of making this decision, the Tribunal is satisfied that the third applicant remains a minor and is a dependent child of the first and second applicants. In this regard, he satisfies r.1.12 (4) as being a member of the same family unit as the first and second applicants for the purposes of s.36(2)(b) and (c).
Credibility assessment
The Tribunal has not identified any significant credibility concerns arising from the applicants’ written and oral claims or any of the documentary evidence submitted to the Tribunal. However, while the Tribunal finds no significant contrivances or inconsistencies, it concurs with the delegate that the first applicant who has advanced claims on behalf of all the applicants has presented some exaggerations with regard to the foreseeable future in their country of reference, if they were required to return.
First applicant’s claims for Australia’s protection obligations
In the applicants’ written claims at the time of application, it was advanced that the first applicant will face discrimination and harm arising from his ethnicity as a Russian Latvian and due to his religion as an Eastern Orthodox Christian, as well as a number of related and unrelated fears about his Russian surname, his economic circumstances and that of his country of reference, corruption, crime and even terrorism.
The first applicant claimed his mother was of Belorussian background and his father, deceased in 2013, was Russian and that both identified as Russian. With no evidence, the Tribunal accepts this. The Tribunal also accepts that the first applicant is of Russian ethnicity and that his surname is distinctively Russian. It is also accepted that he is an Eastern Orthodox Christian.
The Tribunal accepts the first applicant has [siblings] who are [industry] professionals, with one residing in [Country 1] and the other in Latvia, although he is planning to leave. The Tribunal also accepts the first applicant’s claim that he had been married to a Latvian national and that he has adult two children from that marriage. Both his children and his ex-wife reside in Latvia and identify as Latvian.
Separate to this review application has been applicant [specified] who is a Latvian national, who lives separately in a spousal relationship with an Australian citizen. It is accepted that that review applicant is the adult biological child of the first and second applicants.
The Tribunal further accepts that the first applicant married a second time when he married the second applicant who is also a Latvian national and she also identifies as Latvian and has not claimed Russian heritage, as claimed in the scheduled hearing.
The first applicant’s highest level of education is as a graduate of a Bachelor in [Subject 1] and a Masters in [Subject 2], indicating he is well educated and credentialed.
During the hearing, the first applicant elaborated that he had been a businessman based in Riga who had owned a [Business 2] and a [Business 1] (as many as [details deleted]). He claimed that he had been a successful business person until the 2008 global financial meltdown. He claimed that his equity in business and personal (a house and an apartment) assets in Latvia fell from [an amount of] euros to [a smaller amount of] euros over this period of time and he was unable to access further capital at a time when demand for his businesses collapsed. He also had debts to a bank for renovating the [Business 1]. The first applicant claimed business for the [Business 1] did not pick up until 2009 but he was forced to sell this asset to a company related to the same bank he had borrowed from. He claimed he left without any outstanding debts. (He also sold his [Business 2] to his then business partner.) It was around this time the applicants decided to leave for Australia which he said was in part due to the growing anti-Russian sentiment which he attributed to causing difficulties with Latvia’s tax department. The first applicant claimed his bank account was arbitrarily blocked or frozen for six months until a higher ranking tax official unlocked the account.
The Tribunal enquired into the reasons the first applicant, along with the other applicants, applied for protection visas in 2014 and not when they first arrived. The first applicant claimed that after he completed a Master’s degree he would be able to apply for [Class B] visas. The first applicant explained that he paid a migration agent to handle his [Class B] visa applicant but was too late in applying. However their [Class A] visas expired and all of the applicants became unlawful non-citizens in September 2013. However when he applied for the intermediate [Class B] visas it had been too late to be a valid application. Nevertheless they attempted to appeal the decision and simultaneously and invalidly apply for a Class [C] visa. The first applicant claimed he was reluctant to apply for protection visas (due to stigma) but from his perspective he was worried about prospect of poverty and war since the Russians overtook Crimea and the ethnic tensions this would create within Latvia between those who were pro-Western and those who were pro-Russian.
The Tribunal accepts this business and financial background of the financial applicant as outlined in his oral evidence; however it does not accept the applicant’s bank account had been frozen or blocked during the global financial crisis by any Latvian official due to his Russian ethnicity or any other related reasons mentioned in s.5J(1)(a). This specific claim about an account being frozen because of this ethnicity is found to be a clear exaggeration to augment his otherwise credible claims.
The Tribunal also accepts that the first applicant and his family departed Latvia in part due to the treatment of that country’s Russian speaking minority, although the applicants’ visa history strongly indicates those fears were not deeply or urgently held by the first applicant at the time of his departure. Furthermore, the Tribunal has been invited to consider that the applicants applied for protection visas primarily because of their precarious migration status after becoming unlawful non-citizens and invalidly applying for substantive visas. While the Tribunal accepts the applicants were not well assisted by a migration agent, it does not accept the applicants held any deep or urgent fears about returning to Latvia following the Russian annexation of Crimea and rising ethnic tensions within Latvia at the time of application for these visas under review.
In September 2018, a memo from CIS-Europe Monitoring Organization’s political analysist expressed that discrimination against the Russian-speaking population continues in Latvia. At the end of March 2018, the parliament of Latvia adopted a law for the gradual transition to education only in Latvian at the secondary school level; while starting in January 2019 students will have been prohibited from enrolling in Russian language training programmes, even from those privately funded.[11]
[11] The issue of continuing discrimination of the Russian speaking population in Latvia, CIS-EMOP,16 September 2018, >
As this and other country information indicates, some of Latvia’s language, educational and employment policies and wariness towards Russian expansionism has created an environment where many among the Russian speaking minority, those that are distinctly Russian by surname or who are religiously faithful to the Orthodox Church in Moscow hold genuine feelings of being marginalised in Latvia. The Tribunal accepts that the Russian speaking mayor of Riga, Nils Usakovs, was dismissed from that position in April 2019 by the national authorities. Many Russian speaking Latvians felt it was ostensibly due to corruption (as claimed by the authorities) but actually motivated by Russophobia. To this extent, the Tribunal accepts the first applicant holds a genuine subjectively-held fear of harmful discrimination towards him if he returns to Latvia.
However, by the first applicant’s own account he had not experienced physical ill-treatment, denial of services or a denial of a livelihood in the past based on his ethnicity. Although there are stateless Russian speaking persons residing in Latvia, the first applicant is not among them. It is noted that he can speak, read and write in English, Russian and Latvian; he has married a Latvian women, he has children who speak Latvian and identify as Latvian; he has been a successful entrepreneur in the past while living in Latvia; and like his [siblings], he became a tertiary educated professional while living in Latvia. The first applicant does not have any history indicating that he has ever been politically involved in any movement or organisation for any Russian minorities in democratic Latvia in the past and did not advance he will be politically involved if he were to return to Latvia. Furthermore, the Tribunal notes that Latvia is a secular country where Lutherans and Catholics are the most numerous among religious affiliates and where the Eastern Orthodox made up about 26 per cent, according to a 2018 survey.[12] The Tribunal is unable to find any seriously or significantly harmful practices in Latvia against the Latvian and other Eastern Orthodox Christians, although the Tribunal accepts that most Russian speaking Latvians would make up this denomination and that Eastern Orthodox Christianity contributes to the ethno-linguistic distinctiveness among the Russian speaking minority in Latvia.
[12] Religion in Latvia; Wikipedia >
The Tribunal has been careful not diminish the genuine personally held fears of the first applicant about divisions in Latvia along ethno-linguistic fault lines whereby he will return as a Russian speaking minority. After all, the Baltic States, including Latvia, belong to a region within Europe of some geopolitical uncertainty. The Tribunal anticipates that the first applicant has a real chance of encountering discrimination and challenges based on his accepted ethnicity and for the related reasons about his religion.
However the Tribunal finds that the first applicant will not encounter a real chance of serious harm, including through systematic discrimination, as the Tribunal is not satisfied the discrimination will amount to serious harm whereby he will be significantly physically ill-treated, significantly physically harassed or face significant economic hardship or denied access to basic services or the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist or any harm as non-exhaustively listed in s.5J(5) or that would satisfy s.5J(4)(b), on the basis of his ethnicity, his religion, his political opinion, imputed or otherwise, or based on any related reason mentioned in s.5J(1)(a), if he were to return to Latvia.
Although significant harm is not the same as serious harm, the Tribunal is similarly not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Latvia, there is a real risk that he will suffer any significant harm outlined in s.36(2A), including being subjected to cruel or inhuman or degrading treatment or punishment, arising from his ethnicity or his religion or any other related factor claimed by the first applicant. In this regard, the first applicant does not satisfy s.36(2)(aa).
Economic hardship
The Tribunal acknowledges there was a significant economic downturn in Latvia in 2008 which had been among the fastest developing economies in Europe. It accepts there has been depopulation with many skilled and professional Russians seeking greater opportunities outside of it; but its jobless rate is around 6.4 per cent which has been steadily declining in recent years. Publicly available information indicates Latvia’s economic growth has been strong, with real GDP growth reaching 4.8 per cent in 2018, led by a pick-up of private investment along with a boom in EU-funded construction. Per capital income is relatively low compared to other European states at 16,000 US dollars in 2018 – less than the other Baltic states which are also under 20,000 US dollars. This information indicates to the Tribunal the economy is relatively sound but growing in income and sophistication.
During the hearing, it was discussed that Transparency International rates Latvia 41st out of 180 countries with 58 points out of 100 in its 2018 Corruption Perceptions Index. Estonia and Lithuania rate more poorly than Latvia. Latvia is certainly not among the most corrupt countries in the world, as claimed by the first applicant. Corruption remains problematic in many European Union states. However Latvia’s corruption does not invite the Tribunal to consider that its levels are so debilitating that it will significantly prevent the first applicant from finding employment or re-establishing a business.
In making the following findings, the Tribunal notes the first applicant is a very entrepreneurial and highly educated person who speaks, reads and writes Latvian and that he will be returning to Latvia with his supportive wife where he has some relatives to assist him and his family. Nevertheless it acknowledges he will be returning with limited resources as claimed. The national economy is not so small or weak that there are no opportunities for a tertiary education person or that it does not have programmes to assist Latvians with no employment and incomes. The Tribunal also notes the first applicant claimed that there is a stigma towards returning Latvians and they are not strongly welcomed or subjected to ill-informed rumors. The Tribunal accepts this phenomenon but it finds that while there is a real chance or a real risk of encountering such stigma, the stigma does not amount to serious harm or significant harm. While the Tribunal accepts that the first applicant may have experienced difficulties in Latvia in the past, it finds there is nothing in the applicant's evidence to indicate or suggest he has in the past or there is a real chance that in the future he would be unable to secure employment, start an enterprise, overcome stigma and find accommodation and/or would suffer significant economic hardship or any serious harm that would satisfy s.5J(4)(b) in Latvia due to suffering persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal also finds that any hardship the first applicant might suffer due to unemployment or starting a business in Latvia or inability to find work that pays as well as he would like would not amount to significant harm as defined at s.36(2A)(d) and/or (e) (cruel or inhuman treatment or punishment and/or degrading treatment or punishment), as the operation of employment opportunities in Latvia is not an act or omission that would be intentionally inflicted on the first applicant or an act or omission that is intended to cause extreme humiliation to the first applicant (as per s.5(1) of the Act).
Crime and terrorism
It is noted that the first applicant had raised fears about crime, gangs (African) and terrorist outrages as reasons he could not be returned to Latvia or any other European Union country. During the hearing, the first applicant elaborated that he had fears of terrorism and African gangs outside of Latvia but insisted crime was high in Latvia. The Tribunal discussed with the applicant a crime and safety report issued by the US State Department’s Overseas Security Advisory Council.[13] It states that Latvia is a relatively safe country in which the overall crime and safety situation has remained static for several years and there is moderate risk from crime in Riga. Crime statistics tend to trend higher during the summer due to increases in tourism and associated crimes of opportunity. Non-confrontational property crimes of opportunity (pickpocketing, swindling, bag snatching) may occur at any time. The first applicant claimed there were many people in prison and he did not trust travel advisories as he heard of recent homicides in Latvia.
[13] Latvia 2019, Crime & Safety Report, OSAC published 12 March 2019. type="1">
The same report states that there is minimal risk from terrorism in Riga. There are no known indigenous terrorist organizations present in Latvia. With its inclusion in the Schengen Zone, the ease with which undesirable elements can enter Latvia has increased, and the country’s terrorism threat is consistent with most of Europe.
Based on the available country information and in spite of the first applicant’s exaggerations, Latvia is actually a relatively safe country with a moderate problem with non-confrontational crimes of opportunity with a very low threat of terrorism occurring. The Tribunal finds that there is a chance of serious harm or a risk of significant harm to the first applicant arising from terrorism, gangs and generalised crime if he were to return to Latvia. However, it is the Tribunal’s assessment that the first applicant faces only a far-fetched and remote chance of serious harm arising from terrorism or violence and those chances do not amount to a real chance, if he were to return to Latvia in the reasonably foreseeable future.
Sections 36(2)(aa) and (2B) refer to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Act’s definition of refugee status: MIAC v SZQRB [2013] FCAFC 33. Considering the same standard applied to ‘real chance’ and ‘real risk’ and the findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Latvia, there is a real risk that he will suffer significant harm of any kind arising from terrorism or generalised violence.
Having considered all the aspects of the first applicant’s accepted circumstances and claims, both individually and cumulatively, the Tribunal is satisfied the first applicant does not have a well-founded fear of persecution for any of the reasons mentioned in s.5J(1)(a), if he returned to Latvia.
Based on the same considerations, both individually and cumulatively, neither are there any substantial grounds for the Tribunal to believe that, as a necessary and foreseeable consequence of being removed from Australia to Latvia, there is a real risk that the first applicant will suffer significant harm of any kind, as required in s.36(2)(aa).
Second applicant’s claims for Australia’s protection obligations
The Tribunal finds that the second applicant speaks reads and writes Latvian and English and that she is by ethnicity Latvian. It is accepted that she is likely to return to Latvia with her husband should this visa not be granted. There are no specific written or oral claims advanced by the second applicant as her claims largely derive from the first applicant’s claimed fears as outlined above. In this respect, the Tribunal has considered the economic hardship and generalised difficulties that she will face in returning to Latvia with her husband.
Based on the country information outlined above and the findings about the first applicant, the Tribunal finds that the second applicant who is ethnically Latvian will not have a real chance of harm that will amount to serious harm or persecution based on any association with her husband’s Russian ethnicity, his religion or his political opinion, imputed or otherwise, or arising from her shared surname with her husband, if she were to return to Latvia. In this regard, the second applicant does not have a well-founded fear of persecution based on her ethnicity, imputed or otherwise, her religion, her political opinion, imputed or otherwise, or for any other related reasons mentioned in s.5J(1)(a), if she returns to Latvia in the near future.
In having regard to the Act’s complementary protection limb, the Tribunal is similarly not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to Latvia, there is a real risk that she will suffer any significant harm outlined in s.36(2A), including being subjected to cruel or inhuman or degrading treatment or punishment, arising from her ethnicity, her political opinion, her religion or that of her husband’s or any other related factor claimed by the first applicant on her behalf. In this regard, the second applicant does not satisfy s.36(2)(aa).
In having regard to the Tribunal’s findings that the first applicant will not face a real chance of serious harm or a real risk of significant harm based on his economic circumstances, it further finds that the second applicant will encounter difficulties and challenges in returning to Latvia with her husband when seeking remunerated activities as well as accommodation. However she has some qualifications of her own and finds there is nothing in these claims to indicate or suggest she has in the past or there is a real chance that in the future she would be unable to secure employment or start an enterprise, overcome stigma and/or would suffer significant economic hardship or any serious harm that would satisfy s.5J(4)(b) in Latvia due to suffering persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal also finds that any hardship the second applicant might suffer due to unemployment in Latvia or inability to find work that pays as well as she would like would not amount to significant harm as defined at s.36(2A)(d) and/or (e) (cruel or inhuman treatment or punishment and/or degrading treatment or punishment), as the operation of employment opportunities in Latvia is not an act or omission that would be intentionally inflicted on the second applicant or an act or omission that is intended to cause extreme humiliation to the second applicant (as per s.5(1) of the Act).
Based on the same considerations and findings regarding the first applicant, the Tribunal finds that while there is a chance of serious harm or a risk of significant harm to the second applicant arising from terrorism, gangs and generalised crime if she were to return to Latvia. However, it is the Tribunal’s assessment that the second applicant faces only a far-fetched and remote chance of serious harm arising from terrorism or generalised violence and those chances do not amount to a real chance, if she were to return to Latvia in the reasonably foreseeable future.
Considering the same standard applied to ‘real chance’ and ‘real risk’ and the findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to Latvia, there is a real risk that she will suffer significant harm of any kind arising from terrorism or generalised violence.
Having considered all the aspects of the second applicant’s accepted circumstances and limited claims, both individually and cumulatively, the Tribunal is satisfied the second applicant does not have a well-founded fear of persecution for any of the reasons mentioned in s.5J(1)(a), if she returned to Latvia.
Based on the same considerations, both individually and cumulatively, neither is there any substantial grounds for the Tribunal to believe that, as a necessary and foreseeable consequence of him being removed from Australia to Latvia, there is a real risk that the second applicant will suffer significant harm of any kind, as required in s.36(2)(aa).
Third applicant’s claims for Australia’s protection obligations
The Tribunal notes the first applicant advanced written claims for all of his family members, including the third applicant. The first applicant provided a written claim that the third applicant had attended a Latvian stream school and had been bullied because of his Russian surname and that he fears ethnic tensions in Latvia will deteriorate, whereby his son will be adversely affected through anti-Russian discrimination and other harm towards the third applicant as a Latvian citizen of Russian ethnicity. The third applicant is a minor who speaks Latvian and Russian at home, was educated in Latvian before his departure for Australia, and speaks, reads and writes English. (The Tribunal further learned at the hearing that the third applicant participates in competitive [sports] at a high level, that he is enrolled in [school] and that he is undertaking [specialised training] .)
With no evidence to the contrary, the Tribunal accepts the third applicant has faced bullying and harassment in the past based on his Russian ethnicity, imputed or otherwise. The Tribunal notes it was not advanced he has ever faced significant physical ill-treatment or significant physical harassment prior to his departure and that his parents isolated him from as much of those ethnic tensions as they could, as claimed by the first applicant in the scheduled hearing.
While the first applicant claimed his son was isolated from harm in the past, he feared his son, along with his family returning to Latvia, will fall prey to crime as it is high in post-Soviet societies. It was also argued that he will face harm as a member of the family unit arising from economic circumstances through poverty and destitution.
The Tribunal has already assessed the country information about the economic situation and the assessment of relatively low crime in Latvia. It has also made the finding that the first and second applicants do have a real chance of serious harm or a real risk of significant harm arising from their individual economic circumstances or as a couple. It has also made findings that his father does not face a real chance of serious harm or a real risk of significant harm arising from discrimination towards Russians or Eastern Orthodox Christians or any other related nexus reasons mentioned in s.5J(1)(a) in the Act.
With these findings in mind, the Tribunal notes the third applicant does not have a disability; he has no dependants and he belongs to a supportive Latvian family. The third applicant, as a young fit man, does not have any significant barriers to the labour market in Latvia, other than his lack of recent experience in formal Latvian education. While his father is a Latvian of Russian ethnicity and he shares his Russian surname and belongs to the same Orthodox faith as his father, the Tribunal foresees only a remote or a far-fetched chance of serious harm based on his ethnicity, his religion or for a combination of these reasons, whether imputed or not. While there is no suggestion the third applicant is politically involved, the Tribunal accepts his Russian surname has a chance of being imputed with a political opinion that opposes Latvian chauvinism and the marginalisation of Russian speaking or identifying Latvians. However, the Tribunal finds the chances of serious harm through significant hardship, the denial of access to basic services or the denial of capacity to earn a livelihood that threatens the third applicant’s capacity to subsist to be far-fetched and remote and do not amount to a real chance.
In having regard to the Tribunal’s findings that the first and second applicants will not face a real chance of serious harm or a real risk of significant harm based on his economic circumstances, it further finds that the third applicant will encounter difficulties and challenges in returning to Latvia with his parents when seeking remunerated activities as well as accommodation. However he has a promising future as an athlete and a student with a life time of learning ahead of him and he will be returning to a national economy that supports opportunities for such people. It finds there is nothing in these claims to indicate or suggest he has in the past or there is a real chance that in the future he would be unable to secure employment or start an enterprise, overcome stigma and/or would suffer significant economic hardship or any serious harm that would satisfy s.5J(4)(b) in Latvia due to suffering persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal also finds that any hardship the third applicant might suffer due to unemployment in Latvia or inability to find work that pays as well as he would like would not amount to significant harm as defined in s.36(2A)(d) and/or (e) (cruel or inhuman treatment or punishment and/or degrading treatment or punishment), as the operation of employment opportunities in Latvia is not an act or omission that would be intentionally inflicted on the second applicant or an act or omission that is intended to cause extreme humiliation to the second applicant (as per s.5(1) of the Act).
The Tribunal anticipates that in returning to Latvia, finding work, overcoming stigma and access to accommodation and services will be challenging and perhaps even onerous and that he will encounter some discrimination based on his ethnicity and religion, imputed or otherwise. However, when considering his circumstances as a whole, the Tribunal finds that the chances of serious harm for any the claimed reasons mentioned and not mentioned in s.5J(1)(a), including the prevalence of crime and terrorism or for any combination of these reasons, to be faced by the applicant as so remote and far-fetched as not to amount to a real chance that will satisfy s.36(2)(a), if he were to return to Latvia.
Based on the same considerations and findings regarding the first and second applicants, the Tribunal finds that there is a chance of serious harm or a risk of significant harm to the third applicant arising from terrorism, gangs and generalised crime if he were to return to Latvia. However, it is the Tribunal’s assessment that the third applicant faces only a far-fetched and remote chance of serious harm arising from terrorism or generalised violence and those chances do not amount to a real chance, if he were to return to Latvia in the reasonably foreseeable future.
Considering the same standard applied to ‘real chance’ and ‘real risk’ and the findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the third applicant being removed from Australia to Latvia, there is a real risk that he will suffer significant harm of any kind arising from terrorism or generalised violence.
Having considered all the aspects of the third applicant’s accepted circumstances and claims, both individually and cumulatively, the Tribunal is satisfied the third applicant does not have a well-founded fear of persecution for any of the reasons mentioned in s.5J(1)(a), if he returned to Latvia.
Based on the same considerations, both individually and cumulatively, neither is there any substantial grounds for the Tribunal to believe that, as a necessary and foreseeable consequence of him being removed from Australia to Latvia, there is a real risk that the third applicant will suffer significant harm of any kind, as required in s.36(2)(aa).
Cumulative findings
The applicants have not advanced any further claims and there are no more residual claims to consider in this review application.
Based on all available information and accepted claims of all of the applicants, both individually and cumulatively considered and including their combined economic circumstances, the Tribunal is not satisfied that any of the applicants face a real chance of serious harm for any reasons mentioned in s.5J(1)(a), if they were to return to Latvia, now or into the foreseeable future.
Therefore none of the applicants have a well-founded fear of persecution for any of the Act’s definition for refugee status. Accordingly none of the applicants in this review satisfy s.36(2)(a).
Based on all available information and accepted claims of the applicants, both individually and cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Latvia, there is a real risk that the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Ministerial Intervention consideration
While reaching this decision has been difficult, the Tribunal is confident that it has reached its decision in accordance with the Act’s definition of refugee status and the complementary protection provisions and that the applicants do not satisfy s.36(2)(a) and 36(2)(aa).
However the applicants have acted in good faith in seeking a pathway to permanent residency and it is accepted that the applicants had been stymied by less than satisfactory migration advice and assistance. This has left them with no viable or suitable migration option. It is also accepted the first and second applicant’s adult daughter is in an Australian spousal relationship and has a family of her own in Australia, and that this will cause them some distress to the first and second applicants, if the applicants were to return and were barred from re-entering Australia for as much as three years.
The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Minister’s guidelines regarding Ministerial intervention under s.351, s.417, and s.501J of the Act, and it has decided to refer the matter to the Department to be brought to the Minister’s attention.
In examining the Ministerial guideline regarding requesting the Minister to personally intervene, the Tribunal is also confident the applicants’ circumstances, cumulatively considered, had been anticipated by the relevant legislation and the Tribunal’s application of relevant provisions is not an unintended consequence of the legislation.
However, in making this referral the Tribunal has taken into account that the applicants belong to a genuinely close knit and mutually devoted family. Factors of significance in this matter include unduly or unreasonably being separated from the daughter of the first and second applicant whose spouse and infant child are both Australian citizens; the imminent nuptials of the daughter to an Australian citizen; the promising contribution of the third applicant to Australian [sport]; the capacity of the applicants to contribute meaningfully to Australia as skilled employees, taxpayers and law abiding members of society more generally; and the adverse emotional and psychological impact on the applicants and the young family of review applicant [specified] by being excluded from applying for an offshore visa for three or more years and to avoid significant ongoing emotional and psychological hardship to the family. The Tribunal also places particular emphasis on the information regarding the third applicant.
This indicates his participation in competitive [sport] in Australia, while not yet exceptional, is at a sufficiently high level to reach international tournament standards. In this regard, the Tribunal considers compelling the promising benefit to Australian sport in having the third applicant’s lawful retention in Australia as a holder of a substantive visa. With the support of his parents, the Tribunal is also satisfied he will advance into vocational or higher learning in due course once he graduates from secondary level education and contribute meaningfully to Australia. The Tribunal assesses the third applicant’s circumstances amount to being uniquely beneficial to Australia.
The Tribunal does not assess the adverse impact in not remaining in Australia to be severe.
Nevertheless, taking the applicants’ circumstances as a whole, the Tribunal is referring this matter to the Department on the basis that the compassionate circumstances are unique and if not recognised will result in serious, ongoing hardship to an Australian family. The third applicant and his supportive family being permitted to remain and would result in a promising benefit to Australia.
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
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.
…

[2019] AATA 6833

31 October 2019

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