1717363 (Refugee)

1717363 (Refugee) [2017] AATA 2579 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717363
COUNTRY OF REFERENCE:                  Iraq
MEMBER:Rodger Shanahan
DATE:1 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 November 2017 at 3:49pm

CATCHWORDS
Refugee – Protection visa – Iraq – Ethnicity – Kurd – Religion – Sunnni – Social group – Failed asylum seeker from the West – Family members served in the Peshmerga – Criminal record in Australia – Incarcerated – Fears being attacked by IS – Inconsistent statements
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A)-(2B), 36(2A), 36(2B), 65, 499
Migration Regulations 1994, 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 [in] August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa [in] May 2017.
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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he was a Kurd who was born in Suleimaniyyah. His father did compulsory military service in Iraq from 1978 to 1987 but left and joined the Peshmerga where he served until 1992 at which point he [changed roles]. His father later fled Iraq and they came to Australia as refugees in March 2003.
He claimed that he was bullied at school, was later suspended and then made some bad life choices. He was later sentenced to eight years in jail. His visa was cancelled because of his criminal record in May 2015 and on release from jail has been in various immigration detention centres.
If he were to return to Iraq he claimed that he would have no shelter as he has no family members living in Iraq any more, and would have no support or income. Iraq and Iraqi Kurdistan is still dangerous because of Islamic State – the terrorists kidnap, torture and kill Kurds whenever they have an opportunity. He is scared of being targeted by Islamic State because of his Kurdishness.
He has spent eight years in jail in Australia, has been out of Iraq for 14 years and is not familiar with the situation there. He has no prospects of employment there and feared that he would be unable to adjust and would end up in jail there.
He is also medically unfit. He has [a medical condition] after an accident but his treatment has stopped since being in detention. He has also developed some psychological problems in jail that need attention. Because of all these reasons he was scared to return to Iraq.
AAT Hearing
The applicant claimed that if he returned to Iraq the government of Iraq, Shi’a militias and Islamic State would target him for torture, kidnapping and death because he was Kurdish; The Kurds and Iranians were also against the Kurds and were bombarding the region – it was very dangerous. He was asked to focus on his personal claims.
He claimed his father and uncle were in the Peshmerga and his uncle was in the local [newspaper]. Because of this the Iraqi government or Shi’a militias could kill him. He was asked to be more specific. He also claimed that the Iraqi, Iranian governments and Shi’a militias would harm him because he was Sunni. He had met Iranian Kurds who told him this. Islamic State (IS) was still around and would target him because he didn’t know the language fluently and they might kidnap him. He also had no place to live or source of income and Iraq was a war zone. He had no support there.
Asked about his fear of being targeted as a Kurd, he claimed that northern Iraq had never been safe. He would be targeted because IS was attacking Kurds and one didn’t know who was who. The Shi’a militia were also against the Kurdish government, and the government couldn’t help him. IS may think he was a spy because he came from a Western country. Asked what the IS presence in Kurdish areas was, he claimed he wasn’t sure but knew they were in Iraq. It was put to him that IS had been defeated in northern Iraq, he claimed there was always something coming up in Iran.
The Shi’a militias were also there and at the moment the militias were with the Iraqi government and supported by the Iranians and they were being supported to be against the Kurds. He was asked if he had any information that the Shi’a militias were targeting Kurdish forces or individuals, he claimed they said they were going to take over the Kurdish areas and the Kurdish government. He was advised that he needed to provide information to support his assertions. He claimed that he didn’t know much about politics, but was advised he needed to provide supporting information. He claimed he was speaking from his heart. He was advised he had to exhibit a well-founded fear, not just saying he had a fear of being harmed.
Asked why the Iraqi government would target him personally, he claimed the Kurds were not a proper government and he would be forced to join the army. He was asked if Kurds were forced to join the army and he said that they were going to introduce this. He had no evidence to support this assertion but he said he’d googled this and read they were thinking about it. Asked why he would be included given he was [age], he said he had never yet served anywhere. He claimed the Kurdish president had asked people to be ready to serve the Kurdish government.
In Iraq there was always a dispute between religions and it was always Sunni versus Shi’a or Arab vs Kurd. Asked why he would be targeted in northern Iraq given most people there were Sunni. He agreed this was correct but he didn’t speak very good Arabic or Kurdish. He then said he would be targeted there because he was Sunni but it was happening in the surrounding areas. And would be targeted by the Shi’a militias and Iraqi government. He claimed this occurred in Kirkuk and Mosul and he didn’t feel the Iraqi government belonged to him.
Asked about his uncle’s photo (which the Tribunal hadn’t seen), he claimed that it was in a paper [and] included in Kurdish papers in northern Iraq. [Details deleted]. There were two photos but he couldn’t really remember them. He didn’t know when they were taken but it was a long time ago. He said that he wasn’t sure they were in Kurdish papers in the US and Iraq. IS and the Shi’a militias would target him because of the photo. Asked why he would be linked to a photo with [an] uncle taken 10 years ago. He said this was a big thing and he was afraid.
Asked if he had any family in Iraq, he said he did. They hadn’t been targeted because of the photo because it was his grandmother and an aunt with her children (she was a single mother). He might be targeted because he was male and he was someone returning from the West. It was put to him that the Tribunal was not aware of anyone being targeted for similar reasons – there was also a US consulate in Erbil so simply being tied to Americans may not be a reason for being targeted. His own connection didn’t appear to be much of a reason for being targeted. He said he would be targeted.
Asked about his claim to have nowhere to go, he claimed he wasn’t familiar with the area and wouldn’t be able to find a suitable job. He had his grandmother and an auntie. They lived in the province of Kirkuk. His auntie was a single mother with three children although he didn’t know their ages. Asked if he hadn’t tried to find out he claimed he didn’t have anything much to do with them. His auntie was [age] and it was put to him that the children must be around his age – he said he didn’t know. His Kurdish and Arabic was very broken. His family spoke Kurdish and he spoke to his mother in Kurdish but he forgot some words.
It was put to him that he was born in Kurdish areas and raised in a Kurdish speaking household so it was reasonable to think his language was quite strong, and he claimed that he was accused of having broken Kurdish. His Arabic was also broken. In Australia he had worked as a [occupation] and [occupation]. He had a [qualification]. It was put to him that he had some practical skills and the language so he may be able to subsist.
He said it was hard to get a job because of the economy but even Kurdish government workers hadn’t been paid for months. He said his cousins didn’t work but when asked how he knew, he claimed he didn’t know whether they worked. Asked if it wouldn’t have been reasonable to ask them, he claimed that they were in a bad situation. Asked how he knew given he didn’t contact them and didn’t know their ages, he said he heard things from his mother.
It was put to him that in his May 2017 statement he said he had no relatives in Iraq yet today he had said that he had a grandmother, aunt and three cousins. Asked why there was an inconsistency, he claimed he didn’t lie because he wasn’t sure. His adviser spoke to his family – he had also been locked up and didn’t have a good relationship with his family at times and sometimes he forgot because of something that had happened to him that affected his memory. It was put to him that this was a written statement so he had time to recall issues. He claimed that he didn’t mean to lie.
It was put to him that his uncle and father had been in the Peshmerga and he agreed. It was also put to him that his uncle must be influential in the community if he had his photo taken with [details deleted]. He claimed they had left the Peshmerga and wanted nothing to do with them – he understood they had no ongoing contact with the Peshmerga. It was put to him that if his uncle had photos of himself in Kurdish papers, then he may have contacts in Iraq. He claimed his father and uncle were in different Kurdish groups and he really had nothing to do with his uncle.
Country information was put to him that people returned to northern Iraq, particularly single males and this was different to what he had stated. He claimed that the US government had called for its citizens to leave northern Iraq a few weeks ago because it was not safe.
Concerns about mental health issues were addressed. It was put to him that he had not mentioned it today but there had been significant advances made in mental health services, particularly between 2009-11. And although not to the same standard as in Australia, it appeared that they were adequate. He claimed that there were no mental health services and he would be accused to be affected by Satan.
It was also put to him that he had not raised at the hearing about returning from a Western country but it was in his claim. Country information was put to him that such returnees were able to return to Iraq. He claimed that he was scared of this and had been away from the country for a long time.
A break was then taken and although the short period thereafter was not recorded, notes were taken regarding the points put forward by the adviser. In essence they were; the post-Kurdish referendum environment is different and those current developments needed to be taken into account; the relatives he had were distant and just because he had three cousins in Iraq it didn’t mean they were ready to help. The applicant also claimed that because of the ban on air travel post-referendum he would have to land at Baghdad and would be vulnerable because he would have to travel by road to get to the Kurdish area. Country information was put to him that this ban on air travel did not impact on domestic flights and he could fly into Baghdad and then catch a domestic flight to Suleimaniyyah in the Kurdish area.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a global humanitarian visa in March 2003. He has several criminal convictions and has never been granted Australian citizenship. I am satisfied from his application and evidence that he is an Iraqi national and his application will be assessed as such.
The applicant is a [age]year old single Iraqi. He claimed that if he returned to Iraq he would be kidnapped, tortured and killed by the Iraqi government, Shi’a militias and/or Islamic State because he was Kurdish and/or Sunni, would not be able to find somewhere to live or employment, and was medically unfit to return.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the applicant’s medical records that he has provided. In his statement of 12 January 2017 he claimed that in jail he had been diagnosed with [mental health conditions], and had been at a [hospital] unit for around 12 months where his mother used to take him.
A more comprehensive psychological report on the applicant conducted in October 2017 by a registered psychologist was also provided (folio 31). I have taken these into account when discussing the issue of mental health treatment in the body of this report.
I have also taken this into account when assessing the applicant’s credibility as a witness. As shown below I find that the inconsistencies evident in the applicant’s evidence were not caused by any medical conditions or poor memory, but rather because the applicant’s claim is not true.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Targeted for being a Kurd
I do not accept that the applicant will be targeted for being a Kurd. He claimed that he would be targeted by the Islamic State, Shi’a militias or the Iraqi government. I do not accept that Islamic State would target him given that he wasn’t even sure of where Islamic State was located. With their expulsion from Mosul in July 2017 the areas they hold are mainly in Syria’s Deir az-Zour and Iraq’s al-Anbar provinces[1], both well away from Iraq’s Kurdish area. They also remain under attack in their remaining areas. I have taken into account the country information provided by the applicant post-hearing however it is quite general in nature and does not address the applicant’s specific circumstances.
[1] accessed 30 October 2017.
Regarding being targeted by Iraqi government or Iraqi Shi’a militias, I accept that since the September 2017 referendum, the Iraqi government supported by some militias has moved to reassert government control over areas that it doesn’t recognise as coming under the responsibility of the Kurdish Regional Government (KRG). This was confined largely to the city of Kirkuk and some of the oil-producing areas nearby[2]. What fighting there was involved armed Kurdish groups although they appear to have withdrawn rather than risk a pitched battle.
[2] accessed 30 October 2017
Because there is no indication that the Iraqi government or Shi’a militia forces have or are likely to advance into KRG-controlled Kurdish areas, or that they have deliberately targeted individuals simply because they are Kurdish I do not accept that there is a real chance that he will face serious harm either now or in the reasonably foreseeable future. I also do not accept that he may be at risk because he would have to travel by road from Baghdad, given there are domestic flights available for him to take.
I also do not accept that the applicant will be made to serve in a Kurdish armed force. He was asked but was unable to provide any evidence to support this claim. He also stated that he made the claim based on a Google search saying the Kurdish government was thinking about it. Given that he is [age] years of age and there is no conscription in place, I am satisfied that there is no plan to conscript Kurds, or even if there was that he would not be a target for it. Similarly, I do not accept that his uncle’s photo in a newspaper [would] make him a target. No copy was available to the Tribunal to view so I am not satisfied that such a photo exists. Regardless, it was not made clear why the Shi’a militias or IS would know he was the nephew of the person in the photo (if it even existed) or why he would be targeted even if they did know. .
Targeted for being Sunni

I also do not accept that the applicant would be targeted for being Sunni. He would be returning to Sunni-majority Kurdish Iraq and the Tribunal is unaware of any independent country information, nor was any provided that indicates Sunni are being targeted in this region (including what he referred to as ‘the surrounding areas’). The fear was also based on unnamed Iranian Kurds who he claimed had told him this. I do not accept this is the basis for a well-founded fear.
Inability to subsist
I also do not accept that the applicant would be unable to find shelter or to find a suitable job, or that he would be targeted because he was returning from the West. To begin with, I do not accept that the applicant is without support in the Kurdish region of Iraq. In his January 2017 statement he claimed that ‘I no longer have any family or contacts left in Iraq’, yet he later admitted that he had a grandmother, an aunt and three cousins. I have taken into account the statutory declaration provided by the applicant’s father post-hearing (folio 96) but lend it little weight. He is not an objective source given he is a father who has previously written a statutory declaration (unfolioed) asking for the applicant to be allowed to remain in Australia. There was no mention made of the alleged Iraqi family circumstances in that declaration.
The applicant has been inconsistent in his claim regarding what (if any) relatives he has in Iraq on three occasions. It is entirely possible that there are more relatives than he has admitted to, given he initially denied the existence of any. For the purposes of this finding I will work as a minimum on what he advised at hearing – that he has a grandmother, aunt and three cousins in Iraq. I am also not satisfied that he has had no contact with them, or that they were in a bad situation. This relies on his oral testimony which I have found lacks credibility, and the post-hearing statutory declaration of his father which I have given little weight to. The applicant was also inconsistent in describing their employment situation, initially saying that his cousins didn’t work, but when asked how he knew he then said he didn’t know if they worked.
Country information indicates that individuals are ethnically Kurdish should be able to enter the region with relative administrative ease and that reintegration (in terms of employment and housing) has been easier for those who have maintained connections in the Kurdistan region.[3] The same country information states that large numbers of Kurds return to the Kurdish region, indicating that returnees from the West are not deliberately targeted. The applicant has Kurdish language skills, has some [qualifications] and has done some [work] for a company in Australia. Given his family contacts in Kurdistan, I am satisfied that he would be able to be sheltered and in the reasonably foreseeable future find employment in line with his qualifications and skills sufficient for him to subsist.
Mental health issues
[3] DFAT Country Information Report – Iraq, 26 June 2017, p 26-8
I accept that the applicant has some mental health issues, as evidenced by the psychologist’s report. Exactly what they are I am not certain. He has been treated for [his illness] in March 2015 and had contact with [a] Hospital’s [Unit] in 2009 but was discharged after failing to attend appointments.
The report noted that clinical notes in 2015/16 ‘suggested the condition of [details deleted]’ (but gave no more detail) and the psychologist himself said the applicant (based only on notes, family interview and a phone consultation with the applicant) exhibited symptoms [details deleted]. I note also that the applicant has not actually been diagnosed with [this condition], nor is the psychologist a medical doctor who could diagnose this condition.
I also accept the advice from the ex-Iraqi doctor now working in [Australia] who opined that the mental health treatment available in Iraq is nothing comparable to that in Australia. I also note that the demands on these services will be great following the defeat of Islamic State. The question however, is not whether it is comparable but whether it is sufficient so that the applicant does not suffer serious harm as a result of its standard. The country information available to me indicates that while the mental health system is lacking funding and resources from the Iraqi central government, there are NGOs who are providing support outside the government.[4]
[4] accessed 30 October 2017
A mental health program aimed at northern Iraq and funded by the Netherlands was commenced in 2009[5], country information states that there are at least three dedicated psychiatric facilities in Erbil (including a dedicated psychiatric hospital)[6] and a dedicated male psychiatric hospital in Suleimaniyyah.[7] While I accept that the system is below Australian standards, I also note that there are facilities available in Iraqi Kurdistan to treat him and I am satisfied that this reduced standard of available treatment does not reach the threshold of serious harm for Convention purposes.
[5] accessed 30 October 2017
[6] accessed 30 October 2017
[7] accessed 30 October 2017
The applicant has claimed that he has [a medical condition], however I am not satisfied that this is the case. I can find no reference to it in either the medical notes provided as part of the application, nor in the psychologist’s report post-hearing.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the that the applicant will be targeted because he is Kurdish, Sunni, a returnee from the West, that he will be conscripted, unable to find shelter or employment, or be unable to access mental health facilities, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
While I accept that the security situation is unstable in parts of Iraq ant that the Iraqi government has re-established control over Kirkuk following a Kurdish-run referendum, I am satisfied that the rest of Kurdish Iraq will remain secure and under KRG control for the reasonably foreseeable future. I am also satisfied that the applicant’s linguistic and familial links will allow him to reintegrate into Kurdish society. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2017] AATA 2579

1 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction