1715125 (Refugee)

1715125 (Refugee) [2023] AATA 2842 (2 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Melany RAMOS (MARN: 9896522)
CASE NUMBER:  1715125
COUNTRY OF REFERENCE:                   Peru
MEMBER:Mark O'Loughlin
DATE:2 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 June 2023 at 10:56am

CATCHWORDS
REFUGEE – protection visa – Peru – political opinion – Ideas Regional Political Movement (Fujimorism) – Fuerza Popular (Popular Force) – candidacy in the elections of 2006 – attempted kidnapping – assault at work – not ‘selective harassment’ – voluntary returns to Peru – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v Minister for Immigration and Ethic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 225
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

On 28 June 2017 under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicants protection visas. The applicants have applied to the Tribunal for review of that decision.
The applicants applied for the visas on 23 December 2016. The delegate refused to grant the visas on the basis that they were not satisfied that the applicants are refugees or that they face a real risk of significant harm and are not therefore owed protection by Australia.
Pursuant to the act, the applicants were invited to appear before the Tribunal on 16 March 2023 to give evidence and present arguments.
The first applicant, [named], is the only applicant who makes claims for protection. The other applicants claim to be owed protection as members of the same family unit as the first applicant.
The first applicant was the only person to testify.
In this decision the Tribunal will refer to the first applicant as “the applicant”.
The Tribunal was assisted by an interpreter in the Spanish (Central and South America) and English languages.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations.
To succeed, the applicant will need to satisfy s36(2)(a), the “refugee criterion” or s36(2)(aa), the “complementary protection” criterion.
Mandatory considerations
In accordance with Ministerial Direction No.84 made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Evidence
Statement of claims 16 May 2017
The applicant provided a translation of a statement setting out her claims which was dated 16 May 2017. It is summarised below.
From May 2006 to October 2007 she was working in the [District 1]-[Province 1]-San Martin State-Peru. The Tribunal notes that [District 1] is in the north of the country, about [number] km east of the coast and about [number] km north of Lima.
She had been a member of the “Ideas Regional Political Movement” (Fujimorism) party since 1999.
In April 2006 three members of that party came to her home and asked her to stand as councillor in the elections in November that year.
She accepted because she thought it was dignified to do so and had liked to support the party in previous campaigns. She also saw it as part of her ongoing work with her community.
The 90-day election campaign started on 22 August 2006.
She took 3 months leave from work [from] August [to] November 2006 to pursue the campaign.
The statement sets out her policies such as establishing health positions in rural areas and an ambulance service for the poor. She also proposed an expansion of technical education for young people from low economic backgrounds, the formation of community patrols to help prevent crimes, and provision of facilities such as creches and playgrounds.
Her campaigning involved giving talks about the aims of the party.
As a result the party enjoyed an increase of over 9,500 followers which they saw as a success.
During the campaign some of the members, including the applicant, received threatening calls and notes. The calls and notes said there would be attempts against the recipients’ lives unless they resigned from the party.
These threats were reported to the party and to the police, but the people who had been threatened did not believe the country’s security was sufficient to make them safe.
[In] October 2006 the applicant went to a meeting with community residents in [location]. On the way back to [District 1] the driver saw 3 armed individuals with covered faces who were trying to stop the car at a bridge.
The applicant was in fear for her life but the driver was able to drive through the attempted road block.
The elections were on 19 November 2006. The applicant did not win and she returned to work on 28 November 2006.
Some days later the applicant was insulted and punched by a co worker who was a member of a different political party. The applicant saw the doctor and took some sick leave due to nerves after the attack.
After that the applicant was subject to constant threats, even though her party had not won the elections. Despite the loss her party continued to arrange community activities, medical campaigns and provide school supplies to the needy.
The applicant continued to suffer from threats or harassment at work in the form of verbal abuse, notes and death threats.
The applicant says that when the applicant received a threat at her own home to leave politics or be murdered, she and her husband decided to leave the country.
She says she discussed this with her husband who had heard of study visas and who made enquiries. Her family wanted her to change jobs and distance herself from politics so they applied for student visas.
They could not bring their children with them because it was too expensive to send them to school in Australia until the applicant later obtained a skilled work visa.
The party continued under a new name, Fuerza Popular – Popular Force.
She said other members have left the country and are hiding for safety reasons.
The applicant says the Government of Peru has never provided protection and while in Australia she has been trying to overcome the trauma of the things that happened to her during her political life.
Evidence before the Tribunal
The applicant told the Tribunal she started work as a [Occupation 1] after she finished her tertiary studies and, after working in a [workplace] and a [workplace], she started at the [Employer 1] in 1996.
She said the population of [District 1] was about [number] at the time but it grew to about [number] because it is a trade centre.
She was interested in the Fujimorist party, which she joined in 1999 and became eligible to stand for election in 2006.
She favoured the party because it hada policy of dealing with terrorist groups and in particular the Shining Path, which was active at that time.
She said that the Fujimorist party had changed its name to the Popular Front and that it remains very active. She said in the 2021 elections the final choice was between the Popular Front and Peru Libre, the communist party.
She said in 2006 there were over 1000 Fujimorist candidates across the nation.
She stood for the [District 1] along with 5 others. They lost but the election was close.
She said she took time off between August and November to campaign. She concentrated on matters relating to public health because of her knowledge of that area, although she also spoke about infrastructure, safety and security.
She said they also promoted a policy of forming groups to deal with violence in the districts at the hands of “ronderos”. She said the ronderos were gangs of peasant or country folk who were supported by the Shining Path.
During the election campaign she started getting threatening messages and was kidnapped. She said the messages came in envelopes that were slipped under her door.
When asked for details of the kidnapping she corrected that she was not actually kidnapped but there was an attempt to kidnap or kill her.
She said there was an attempted attack on a car in which she was travelling with 4 other party members, 3 of whom were candidates. They were returning from a meeting and 3 masked men tried to stop them on a bridge.
The driver evaded them by driving very fast but the applicant said the experience was scary.
The Tribunal asked her why she believes it to have been a political attack.
She said she does not think the incident was a robbery because the attackers started to shoot at them. She said the attack happened outside of [District 1], and that although people are often stopped on bridges by thieves in that area, they usually operate during the day and not on that road, which is why she is confident it was a political crime rather than a robbery.
She agreed there are several roads that lead back to [District 1] from the place the meeting was held.
Despite that she believes the attack was intended for them.
There was no repeat of the attack or any other action taken against her during the campaign other than threats.
She said she received threats by text message both during and after the campaign. The messages said she should leave the country and also that she should leave politics or her days were numbered.
She said the threats were made frequently and to several candidates.
The group leader went to the police to report them but the police did not do anything.
She said after the election they became more frequent and more specific.
She also said she suffered from physical harassment at work after the election. This was a single incident when she was on morning shift and she and a work colleague were discussing politics. The discussion deteriorated to an argument and her colleague hit her in the face, causing her to fall. Her workmates came to her aid and she was taken to emergency.
She said she took 2 days off work and then reported the incident to the police. The report to the police did not result in a prosecution because her assailant’s brother was in charge of the police station.
She said her boss knew about the assault and rotated her through other workplaces to keep her away from the colleague who had hit her.
She said she was kept safe this way until she left in October 2007, about 10 months later.
The Tribunal observed that, although she says she received threats for about a year after the elections, no threat was carried out in that time.
She believes that is because she was careful and did not go out alone.
She agreed that Peru is a large country but said she could not hide forever and that if she went elsewhere her enemies would find her eventually.
She said she was at risk because she belonged to the party.
She agreed it is one of the biggest parties in the country. She said she is at more risk because of her profile. She said the leader and the Mayoral candidate were also threatened.
She said she was picked on because she was quite well known.
She agreed the leader and Mayoral candidate were also threatened but she does not know if anything happened to them.
She said a travel agent suggested she apply for a student visa.
She said she wanted to leave Peru because she wanted to be safe and free of persecution.
She said when she arranged her visa with the travel agent in Peru, she did not say she was being forced to leave Peru. She just said she wanted a visa that would afford her the longest stay. She had no satisfactory explanation for not discussing her fears or the possibility of seeking protection in Australia.
She said she did not intend to return to Peru when she had finished her study.
She agreed that she was in Australia for about 9 years before she applied for a protection visa.
She said she did not apply for a protection visa earlier because she did not know about them.
She studied English, [Discipline 1], and [Discipline 2] from 2007 to 2012 then applied for a 457 Work visa. When she applied for the 457 visa, she did so through an Australian migration agent. That was in 2012.
She said she was communicating through her boss who spoke Spanish.
She said that when she changed to her current, Spanish speaking representative she asked about a protection visa which she had heard about from another person.
She applied for the protection visa in 2016, about 9 years after she arrived in Australia.
The applicant said she had continued to be active about politics on social media. She said the party is still hated in many places and she believes the people who persecuted her are still there.
She said the communist party was still in power at the time of her evidence and there is much political violence.
She said she does not believe she could hide if she returned to Peru.
The Tribunal observed that she had stayed in Peru for a year after the elections and for over 10 months after she was assaulted by her workmate. She agreed but said she had been cautious in that time.
She said there have been no threats made to her since she came to Australia but there have been insults.
The applicant agreed she had left her children in Peru when she and her husband came to Australia.
She said they stayed with her mother and mother-in-law and that she believes they were safe because the threats were directed at her not her family.
The applicant said she did not have any evidence to support her claims of ongoing threats because they were traumatising.
She agreed she had returned to Peru 3 times in the period her children were still living there. She said these visits were for strong reasons, such as to be with her children during developmental milestones and to visit her mother during a time of ill health.
The Tribunal suggested that the fact she returned suggests she did not fear going back.
She said that she had to take the risk of returning but she took precautions to ensure her safety.
The Tribunal suggested that the fact she was in Australia for such a long time before she sought a protection visa suggests that she was not as anxious about her safety in Peru as she says. She replied that she was concerned and is still concerned.
The Tribunal noted that the Fujimorist party is a very big party and asked whether she believes she was being singled out. She said that the party is big but in her community it is a small number of people and the hate is ongoing.
She was asked whether she could avoid the hate by moving elsewhere in Peru. She said she does not think that would have been practical, especially when her children were small. She could not say whether it would be practical to move now that the children have grown.
The Tribunal notes that both children have finished school.
The applicant was asked whether there are any other matters she would like the Tribunal to take into account. Her representative asserted that there are other cases involving people from Peru.
The representative also asked that the Tribunal take into account that the applicant’s daughter had suffered a medical episode, which is evinced by a letter on the file. The Tribunal advised that that does not seem to assist the applicant’s claim for protection but that there would be at least 2 weeks after the hearing to make submissions in support of these further issues.
After the hearing the applicant sent the Tribunal a statutory declaration that had been executed on 27 March 2023 by [Ms A], the applicant’s daughter and the fourth applicant in this matter.
In her declaration [Ms A] says she suffered by being separated from her parents when she was young and that the stress increased.

100. She says she was worried about the instability of the family’s life in Australia and the possibility of returning to Peru. She says the pain of seeing her mother crying and being distressed was upsetting. She says the source of her mother’s distress was the chance of returning to political danger in Peru.
101. She says she suffered an emotional collapse and ended up in [a] Hospital and that she felt suffocated with fear that there is a chance the family will go back to the place where they are not safe.
102. The applicant also provided a letter from a locum doctor at [the] Hospital apparently written just before midnight on 19 February 2022 and signed a few minutes later on 20 February 2022.
103. The letter says it was prepared by the doctor in the role of treating doctor but does not rerefer to any diagnosis or history. It is addressed to the Department of Immigration and describes her as motivated. The letter is a letter in support of the application.
104. To the extend the statutory declaration suggests the applicant is distressed about the prospect of danger if she has to return to Peru, there is no explanation of how the deponent knows that or of what understanding the deponent has of the type of danger the applicant would face in Peru.
105. The Tribunal finds that the statutory declaration of 27 March 2023 does not assist in assessing the applicant’s claim to face danger in Peru by reason of her political activities.
106. Further, the Tribunal finds that the evidence does not suggest the applicant or her daughter will be subjected to relevant persecution or will suffer either serious or significant harm because of any mental condition suffered by the daughter.
S36(a) - REFUGEE CRITERION
107. 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. This is called the “refugee criterion”.
108. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
109. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of Peruvian nationality. Further, the Tribunal is satisfied that the applicant is outside Peru.
110. The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in Peru, which is the next part of the definition of “refugee” at 5H(1)(a).
111. S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“convention reasons”).
b.There is a real chance the applicant would be persecuted for one or more of those reasons, and
c.The real chance of persecution relates to all areas of Peru.

Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

113. Broadly, the applicant’s claims arise from one source.
114. That is, she fears harm at the hands of political opponents because of her involvement with of Fujimorist politics in Peru.
115. She refers in particular to her candidacy in the elections of 2006 and her subsequent political activity both in Peru and, in an online capacity, in Australia.
116. The applicant says she was subjected to harm and threats in Peru from about August 2006 when she started to campaign.
117. She gave evidence of an attempt to hijack a car in which she was a passenger and of a punch on the nose in an argument about politics. Those events took place in late 2006.
118. She also claims she had been subjected to a course of threats which was ongoing during the rest of the time she was in Peru and has been maintained online since then.
119. The applicant and her husband arranged for student visas and came to Australia in early November 2007.
120. The Tribunal asked the applicant why she waited for such a long time to come to Australia if she feared for her life.
121. She said she was able to remain safe by taking precautions. She said her husband heard about student visas and they got an agent to arrange visas for them.
122. She said they did not like to speak about the threats and did not ask the agent about other types of visa. She said they did not know about Protection visas.
123. The applicant told the Tribunal that she had no intention of leaving Australia once she had completed the study she had applied to do.
124. The Tribunal noted that she studied for years on student visas and associated bridging visas before she applied for a protection visa.
125. The applicant told the Tribunal she did not apply for a protection visa earlier because she did not know about them.
126. The Tribunal is satisfied that the applicant did not enquire about them with the agent who arranged her first visa.
127. The Tribunal is not satisfied that the applicant’s visa history is consistent with a fear of persecution in Peru.
128. The applicant left her children in Peru for about 5 years after she came to Australia.
129. She returned to Peru to visit them 3 times.
130. The applicant said she was strongly motivated to return.
131. The Tribunal asked whether this meant she did not fear for her life in Peru. She disagreed.
132. She did not complain of any threats to her or attacks on her during her visits to the country.
133. The Tribunal is not satisfied that the applicant’s 3 trips to Peru are consistent with a fear of harm in Peru.
134. The Tribunal is not satisfied that the applicant has a fear of harm of any kind in Peru.
135. The Tribunal must therefore consider whether it is satisfied she comes within s5J(1)(a) because she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if she returns to Peru.
136. The applicant claims to fear being persecuted for reasons of political opinion if she returns to Peru.
137. The Tribunal must consider whether it accepts that she does fear persecution for reasons of political opinion as she claims.
138. The Tribunal will first consider what is meant by “persecution”.
139. The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
140. Further, the meaning of “persecution” in the Refugee Convention has been judicially considered.
141. The Tribunal has regard to the decision of Justice McHugh in Applicant A v Minister for Immigration and Ethic Affairs:
“Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.”[1]
[1] Applicant A v MIEA (1997) 190 CLR 225 at 258

142. In Chan v MIEA, McHugh J said:
“The notion of persecution involves selective harassment…”

143. The applicant has given evidence that she fears physical mistreatment or death at the hands of her political opponents if she returns to Peru.
144. She says she would be a victim of physical mistreatment or death because she stood in elections in 2006 and has continued to be politically active. She says she made enemies when she campaigned in 2006 and they remain her enemies.
145. She effectively says she suffered harm as contemplated by s5J(4)(b) in Peru before she left and would be at risk if she returned.
Did the applicant suffer relevant harm in Peru?
146. The applicant gave evidence that she stood for election as a councillor in [District 1] in the 2006 elections in Peru. The Tribunal has regard to documents provided by the applicant and is satisfied that she was a candidate and was a member of the Ideas Regional Political Movement, a Fujimorist party.
147. The Tribunal is satisfied that the applicant engaged in active campaigning for that party in the lead up to the election.
Attempted Kidnapping/Attack
148. The applicant claims her political opponents attempted to hijack a car in which she and others were travelling during the 90-day political campaign in 2006.
149. She says some masked men waited at a bridge that they were crossing to get home. They tried to stop the car. They had guns which they fired. The driver evaded them by speeding up.
150. The applicant gave evidence that this was a familiar method of conducting robberies. She did not believe this incident was an attempted robbery because they usually took place during the day, and this was in the evening.
151. There is no evidence that any further attempts of this type were made on the applicant.
152. The Tribunal is not satisfied that this was a politically motivated incident. It is consistent with being a simple robbery. The Tribunal is not satisfied that it was persecution of the applicant because of her political opinion or for any other convention reason. Further, the Tribunal is not satisfied that it represents “selective harassment” as contemplated by Justice McHugh in Chan above.
The assault at work after the election
153. The Tribunal has regard to hospital records provided by the applicant[2] and to a certified copy of a police report dated 8 January 2023, both of which were translated, and to the applicant’s oral evidence.
[2] Regional Health Department of San Martin Medical Certificate dated 18 July 2017.
154. The Tribunal is satisfied that the applicant was hit on the nose in the course of a political argument with a work colleague on 4 December 2006 and suffered pain and reddening of her nose.
155. The Tribunal is also satisfied that the applicant reported the assault to the police on 6 December 2006.
156. The Tribunal accepts the applicant’s evidence that after that her employer took steps to ensure that she and her assailant worked at different sites.
157. There were no further physical attacks on the applicant by that colleague or by anyone else.
158. The Tribunal is satisfied that the assault occurred in the course of a political argument with a workmate.
159. The Tribunal is not satisfied that it represents selective harassment as described by McHugh J in Chan.
160. The Tribunal is not satisfied that the applicant has a well-founded fear of harm in the nature of that inflicted in the assault should she return to Peru.
Threats
161. The applicant gave evidence that she received threatening messages from political opponents in the form of text messages and messages written on paper.
162. They included threats to kill the applicant and her family. There is no evidence of any harm to the applicant’s family in Peru.
163. The applicant left her children in Peru for some time after she came to Australia. The children were not threatened or harmed.
164. The applicant gave evidence that for the 10 months she stayed in Peru after the elections she was able to remain safe by taking precautions such as by making sure she was usually accompanied.
165. There is no evidence that any effort was made to carry out the threats. It is not clear whether the precautions referred to by the applicant were effective or whether the threats were empty threats.
166. The Tribunal is not satisfied that the threats against the applicant give rise to a well-founded fear of persecution. The Tribunal is not satisfied that the threats were associated with the incident in the car near the bridge or the disagreement at work.
Serious Harm if the Applicant Returns to Peru
167. Having considered the applicant’s claims the Tribunal is not satisfied the applicant fears relevant persecution if she returns to Peru.
168. That being the case, the Tribunal is not satisfied the applicant comes within s5J(1)(a).
169. The Tribunal is not, therefore, satisfied that the applicant has a “well-founded fear of persecution” as defined in s5J.
Conclusion re Refugee Criterion
170. The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), she may nevertheless be entitled to the grant of the visa if she meets s 36(2)(aa) (‘the complementary protection criterion’).

172. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of her being removed to Peru there is a real risk that she will suffer significant harm.
173. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
174. S36(2A) provides as follows:
(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.

175. In considering the refugee criterion, the Tribunal is not satisfied that the applicant faces a real chance of harm of any kind if she returns to Peru.
176. The Tribunal has considered the definition of significant harm above and is satisfied that it would fall within serious harm considered in the context of the refugee criterion.
177. The Tribunal has regard to relevant authorities and is satisfied that a “real chance” is relevantly the same as a “real risk”.
178. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of her being removed to Peru there is a real risk the applicant will suffer significant harm
179.   The applicant does not come within s36(2A) (a), (b) or (c).
180. S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

181. S5(1) defines “degrading treatment or punishment as follows:
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.

182. The Tribunal is not satisfied that the applicant will be subjected to any acts or omissions due to her political activity and finds that the applicant’s political activity does not give rise to complementary protection obligations.
[Ms A]’s Mental Health
183. The Tribunal has been provided with a statutory declaration from the applicant’s daughter referring to her own mental health and her concerns about her family facing the possibility of returning to Peru.
184. The Tribunal has found that the evidence does not support the applicant’s claims.
185. For the avoidance of doubt the Tribunal is not satisfied that the evidence supports any claims on [Ms A]’s behalf. There is no suggestion that [Ms A] is a person to whom Australia has protection obligations and the Tribunal is satisfied that she is not.
Conclusions
186. For the reasons given above, the Tribunal is not satisfied that the first 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).

188. None of the applicants satisfy s 36(2)(b) or (c) 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.
189. Accordingly, the applicants do not satisfy any of the criteria in s 36(2).
DECISION
190. The Tribunal affirms the decision not to grant the applicants protection visas.
Mark O'Loughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2023] AATA 2842

2 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction