1716285 (Refugee)

1716285 (Refugee) [2019] AATA 383 (14 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716285
COUNTRY OF REFERENCE:                  Chad
MEMBER:Nora Lamont
DATE:14 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 January 2019 at 10:58am
CATCHWORDS
REFUGEE – protection visa – Chad – Federal Circuit Court remittal – imputed political opinion – father’s involvement in the Union of Forces for Democracy and Development – political opinion – posting on social media sites – religion – anti-Islamic beliefs – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Chad, applied for the visa on 20 January 2016. The delegate refused to grant the visa on 11July 2016.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court. The court found that the Minister’s office issued a certificate that was invalid and the Ministers officers relied on that certificate. The Tribunal member did not tell the applicant about the certificate and the Tribunal member did not disclose the documents to the applicant. The Tribunal discussed the court decision and non-disclosure certificate with the applicant at the Tribunal hearing.
The Tribunal held a hearing on 10 October 2018. The applicant was represented at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] January 2016 as an undocumented unauthorised Air Arrival and was refused immigration clearance. The applicant claims to be a citizen of Chad who was born in [City 1, Country 1]. The applicant claims to have travelled from [Country 1] by air using his own Chad passport then used a genuine passport belonging to someone else who bore a likeness to him. The applicant subsequently provided the Department with an expired Chad passport. The applicant also provided the Department with an untranslated document which was his birth certificate. There were discrepancies in the applicant’s birth dates. The delegate found that without any information to the contrary that the applicant was born in [Country 1] but is a Chad citizen and that he was born in [year] not [year] as claimed.
The delegate found that the applicant was born in [Country 1] and lived in [Country 1] prior to coming to Australia. The Tribunal having no information to the contrary finds the applicant is a citizen of Chad, he has no legal right to enter [Country 1] and live therefore the Tribunal finds Chad to be his country of reference and receiving country for complementary protection. There is nothing before the Tribunal to indicate that the applicant has a right to enter and reside in a safe third country.
Background and Claims
The applicant’s claims as initially submitted on his Protection application can be summarised as follows:[1]
[1] Home Affairs [file number] Folio page 67-68
·The applicant was born in [Country 1] but is a citizen of Chad.
·He has lived his whole life in [Country 1] and has never been to Chad
·He is of African ethnicity and a Muslim
·His father was a supporter of the UFDD
·His father’s experiences in Chad convinced him that the same dangerous situation awaits him if he was to have to go to Chad
·In 1965 when his father was [age] years old the rival tribe tried to take over the family land. The rival tribe killed his Uncle and his Father’s cousin who tried to defend the family property. After this incident, his father and grandfather fled to [Country 2] and his grandmother joined them there later.
·The rival tribe is the Zaghawa tribe and was aligned with the ruling party of Chad. The current President of Chad is a member of this tribe
·His father remained in [Country 2] until the age of [age], after which he applied for and was granted a [Country 1] work visa.
·During the time he lived in [Country 2] his father became involved in the UFDD. In 2004 or 2005, his father travelled back to Chad and stayed there for one year, during which time, he was very active with the UFDD, an anti-government resistance movement in Chad and is not a registered political party
·His father took risks going back to Chad for that one year period because anyone who is known to be a member of the UFDD will be picked up by Chadian authorities and detained. Given that Chad is a tribal society, it will be known in Chad that his father returned and actively worked with the UFDD for a year.
·The tribal system in Chad means that as his father’s son he too will be considered a dissident in the country. For this reason he will be targeted if he is returned to Chad
·Furthermore, the Zaghawa tribe would become aware of his return and that he could make a claim to his family land which was illegally taken over by then. He would be at risk of harm from members of the Zaghawa tribe and his potential reclaim of his family farm would expose the wrong doing of the Zaghawa tribe and this would be damaging to the tribe and the reputation of the President of Chad.
·He is unable to rely on the Chadian government for protection from the Zaghawa tribe because the government itself is largely made up of Zaghawa members
·If he were to try to live in Chad he would be killed. The government knows of his father’s political activities and would think he is taking his place as this is the tradition of things in Chad
·He is unable to relocate to another area of Chad as his risk of harm extends throughout the country. The tribal system means that he cannot go live in a region held by some other tribe. He would be driven out. The only area he could live in is his tribal area of the Zaghawa tribe but it is this tribe whom he fears
·Additionally he has no family in Chad so he would have no support network which is vital in a country like Chad where people starve to death. He has no means of making a living in Chad as he is an Arabic speaking [Occupation 1] and would have no chance of getting employment in Chad. He can understand Kanombo language but cannot speak or write it and he doesn’t speak or write French which is the official language of Chad.
·In summary he fears harm including assault and murder at the hands of the Zaghawa tribe and the Chadian government on the basis of his imputed political opinion, due to his father’s past political activities in Chad and the circumstances of his family’s loss of land.
The applicant also provided the Department with a Statutory Declaration dated 25 May 2016 where he reiterated much of what was claimed in his visa application including the background of his father and the Chadian government and the tribal system in Chad which would cause him harm should he be removed to Chad. The applicant claims he cannot relocate anywhere in Chad and that he fears assault and death at the hands of the Zagawah tribe. [2]
[2] Home Affairs [file number] Folio page 41-43
The applicant provided a further Statutory Declaration dated 4 October 2018[3] in which the applicant further clarified his claims. The applicant claims his father was involved in the 2008 coup attempt in Chad and made further claims about his father’s involvement with the political system in Chad. The applicant also clarified his posts on [Social Media 1] and [Social Media 2].
[3] AAT Folio 48-50
Further the applicant claims the following:
·The applicant claims he has a lack of religion and has rejected Islam
·The applicant fears harm in Chad based on his actual and imputed political opinion due to his father’s political profile and tribal matters
·His membership of a particular social group as a family member of a rebel group
·The applicant’s inability to subsist in Chad with no connections or family in a tribal country
·The applicant would be harmed because of his political social media commentary since arriving in Australia
Tribunal Hearing
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant shared his family background with the Tribunal. The applicant was born in [Country 1] and has never been to Chad. The applicant has [a number of siblings]. His father [worked] for his [sponsor] until 2003 or 2004. His mother is [working] as are his sisters. In 2008 the applicant got a job working as [Occupation 1]. He was not sponsored so his high school principle introduced him to a man and he got his first job selling [specified goods]. No one asked him for any documents as most people thought he was a [Country 1 national].
The Tribunal asked the applicant how it was that his father had remained in [Country 1] since 2003 or 2004 when he lost his job as according to Human Rights Watch residence permits are linked to employers, and their written consent is required for a worker to change employment or leave the country. [4] The applicant responded that as long as you pay an agent you can renew as long as you pay. But in 2006 a new law applies and they stopped all new residency permits for Chad citizens until 2013 or 2014.
[4] [Source deleted].
The applicant further stated that he was required to get a sponsor and because he was over the age of 18 they allowed him to get his residency under his father if he paid the fee. He did pay the fee. The applicant had 4 months left on his residency when he arrived in Australia in 2016. The applicant said that the whole system is corrupt and you can renew if you pay.
The Tribunal asked the applicant what prompted him to come to Australia in 2016. The applicant stated he had a great fear that his residency was about to expire and he did not like the way things were in [Country 1]. He is an open minded person. I was really concerned about my father’s business. I chose Australia as it can help me with my fears I had to leave [Country 1] that’s all I knew. I will be killed if I am to go to Chad. The applicant paid someone to go to the Chad Consulate and get a 12 month extension on his passport as he was afraid to go to the Consulate himself.
The applicant said that when his father was young there was a civil war and the Zaghawa came from Darfur originally and took over the country by force. His Uncle and cousin were killed and they took the family land and his father and grandfather were forced to leave and go to [Country 2]. The applicant’s grandfather had a lot of land and cows and he was considered to be the head of the tribe so they targeted his family. The applicant’s grandfather remained in [Country 2] as he did not want to go to [Country 1].
The Tribunal asked why the applicant’s father did not go back to Chad until 2006 when he had left Chad in 1965. The applicant explained that the Zaghawa will kill anyone who stands against them so he could not just go back into Chad alone. The applicant went on to say at the end of 2006 his father left home and travelled to another area in [Country 1] where he stayed for about 10 months. He was with a group of people from the UFDD (Union of Forces for Democracy and Development) preparing to go to Chad. He went to [Country 3] and then [Country 2] before entering Chad. He was gone until 2009.
In August of 2008 the war started in Chad. The applicant was not aware of how long his father was in Chad; although he knows he was injured before he came back to [Country 1]. He was always angry with his mother and took his anger out on her.
The Tribunal asked the applicant to explain how his father had been gone 43 years and yet he was claiming that he went back to Chad and was recognised as someone. The applicant said he want a member of the UFDD until 2006. Because of his political opinion he is very well known. He was very active in movements. He is also very well known in [City 1, Country 1] as well.
The Tribunal asked the applicant what he feared would happen to him if he went to Chad. The applicant said that in addition to his fears based on his father’s UFDD involvement, the applicant himself also had been expressing anti-Islamic rhetoric on [Social Media 1] and people have been attacking him. He fears they will target him based on his anti-Islamic views. The applicant said that it was like the case of Zouhoura Ibrahim who was gang raped in Chad. Her father was in France and they sent Generals to rape her.[5]
[5] Chad teenager’s gang rape galvanizes protests and opposition to the President
The applicant stated that being the son of his father who was involved in a coup and then with his rhetoric about the rape case on line they will use all this against him. He posted on his [Social Media 1] page. The Tribunal asked why he would invite trouble by posting these things and having a public [Social Media 1] profile. He said when things are happening you need to speak up. The applicant said that when Zouhoura was raped they filmed it and when she went to the government to get help they did nothing about it. The applicant said that despite claiming that they were arrested they were not. The Tribunal asked how many friends on [Social Media 1] he had in Chad. He said he didn’t know, but when he posts about these things he can see their faces and they are from Chad.
The Tribunal asked why the applicant had an issue with Islam because it was only brought up in 2017 and the Tribunal could not find any information in his claims about religion prior to this. In 2017 I started to question the Koran and questioned whether it is true. I started to believe science more than Islam and this was in 2013 and I put it on my [Social Media 1] page. So from that time I started wondering about Islam. I looked at Wahhabism and I start to believe that all the corruption is because of religion. If we are too develop Chad we need to remove the religion in order to build Chad. I lived all my life in Muslim country. It is hard to say you are from Chad in [Country 1]. I used to be treated differently over there. If we want to make Chad a good country then we need to remove the religion. The applicant cannot live like a Muslim he would not even be able to sit with a woman and now Chad is starting to follow Wahhabism. The applicant stopped going to the mosque and he felt that the Imam was saying wrong things. Becoming an ex-Muslim is hard they won’t allow it. So I will be harmed for religion or for the things my father did.
The Tribunal asked why he didn’t bring these things up when he first arrived. The applicant said he was confused about many things but as he started reading science and Charles Darwin and I realised so many things. I started to talk about these things when I was in [Country 1]. If the government has evidence that you are against the regime they will kill you or they will persecute you.
The Tribunal accepts the following claims made by the applicant:
·That the applicant’s family was forced from their homelands in 1965 and since that time the family has remained living outside of Chad, mostly in [Country 1] but the applicant’s grandfather lived in [Country 2] until his death
·The civil war that began when his father was young and the tribal takeover of his family’s property caused fear and necessary relocation for the family
·The applicant’s father settled in [Country 1] where the applicant and his siblings were born. The applicant has only ever lived in [Country 1] he has not ever been to Chad
·The applicant’s father is an activist and a member of the UFDD and he travelled to Chad in 2007 and participated in a rebellion against the government returning to [Country 1] in 2009 and that due to his father’s activism and the family history in Chad the applicant fears harm based on imputed political opinion that being the imputed political opinion of his father
·Over the past several years the applicant himself has become political and posted many times on various social media sites about his political opinion in Chad most specifically around the rape of Zouhoura Ibrahim
·The applicant has left Islam and questioned his faith openly. He has posted about Islam causing attacks on his person
·If he was to be removed from Australia to Chad he would face persecution for his actual and imputed political opinion

Country information on Chad shows the country is in a severe economic crisis, Boko Haram have continued to kill, abduct and injure civilians and destroyed property. During the past year the authorities banned at least six peaceful assemblies and those who were organising and participating in the protests were arrested. [6] The applicant would be unable to subsist with no land and no relatives in a country where he has never been.
[6] 2017-2018
Further, the applicant would be targeted for his imputed political opinion and his actual political opinion as country information indicates that journalists who are critical of the government receive threats and are subjected to surveillance and human rights defenders are detained for exercising their freedoms of expression and opinion. [7] The applicant has an online social media record.
[7] 2017-2018
For purposes of this decision as the applicant has never been to Chad as he was born in [Country 1], the Tribunal is assessing whether the applicant can ‘relocate’ to Chad rather than ‘return’ to Chad.
The Tribunal notes that the assessment of protection is in fact a forward looking assessment about what could happen to the applicant if he was relocated (returned) to Chad. Past experience can be a guide as to what could occur in the future. The Tribunal considers that on the evidence presented and the country information it demonstrates that the applicant would be harmed. The Tribunal finds that the chance of being harmed can be described as being real, and the harm that would be experienced would be serious.
Given these findings, the Tribunal has gone on to consider whether the applicant faces a well-founded fear of persecution if relocated (returned) to Chad.
The Tribunal finds that the applicant has a real chance of serious harm if relocated (returned) to Chad due to his actual and imputed political opinion and for his anti-Islamic beliefs. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
In the circumstances of the applicant, the Tribunal considers that the subjective fear that the applicant has for the future is objectively made out on the evidence of the applicant and the available country information. The Tribunal therefore considers that based on the evidence before it, that the applicant has a real chance of serious harm arising from his actual and imputed political opinion and for religious reasons.
The Tribunal has considered whether the applicant has the ability to avail himself of state protection. The Tribunal notes in its considerations that the actors that would cause the harm include state actors and tribal factions who can be said to have a real chance of seriously harming the applicant in the future. Given the applicant’s imputed political opinion, his actual political opinion, his religious beliefs and the very real fact that he has never even been to Chad and speaks differently, the Tribunal does not consider that the applicant can avail himself of state protection.
With respect to relocation, the Tribunal finds that applicant cannot relocate anywhere within Chad. The Tribunal does not consider that there is a location within Chad where the applicant would not face the real chance of serious harm arising from his political opinion and tribal factions.
The Tribunal finds that the applicant has a real chance of serious harm arising from his imputed and actual political opinion and religious beliefs in Chad. The Tribunal therefore finds that the applicant has a well-founded fear of persecution for this reason.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nora Lamont
Member

Submissions
1. Submission from Refugee Legal dated 5 October 2018 AAT Folio pages 58-69
1. [Social Media 1] posts with translations AAT Folio pages 52-57
1. Statutory declaration of the applicant Dated 4 October 2018 AAT Folio pages 48-50
1. Attestation/duplicate letter from the UFDD AAT Folio pages 46-47
1. Federal Circuit Court Order AAT Folio pages 10-20
  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 383

14 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice