1722240 (Refugee)

1722240 (Refugee) [2023] AATA 4122 (5 September 2023)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1722240
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Senior Member G.A.F. Connolly
DATE:05 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 September 2023 at 6:12pm
CATCHWORDS
REFUGEE – protection visa – Nepal – non-attendance at hearing – claims of physical, mental, economical tortures and sufferings from Rebel Nep-Maoist Party – mutual treaty between Nepal with India – claims of coordination and communication between India's physical Rebel bodies and Nep-Maoist – unable to relocate to India – lack of any evidence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)
Migration Act 1958 (Cth), ss 5, 36, 65, 426A(1), 499
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 dependants.
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 and Border Protection (Minister’s Delegate) on 11 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).[1]
[1] See the Applicant’s Protection Visa Decision Record of 11 September 2017.
The applicant is a citizen of Nepal and he is [age] years old. The applicant is in possession of a valid Nepalese passport that still has another year of valid use before it expires.[2]
[2] Nepal Passport, Number [deleted] issued [2014] and expiring [2024].
On 26 May 2016, the applicant applied for a Business Visitor visa.
On 03 June 2016, the applicant was granted a Business Visitor visa. This visa would expire on 07 October 2016.
[In] July 2016, the applicant arrived in Australia.
On 30 August 2016, the applicant commenced his application for a Protection Visa.[3] In his application, the applicant said that he left Nepal, “To save my life from the hands of Maoists”^[4] and that, “I fear I will be abducted, tortured and killed by Maoists”^[5]. Attached to the application was the applicant’s statement.[6]
[3] Applicant’s Form 866C signed 30 August 2016.
[4] Applicant’s Form 866C signed 30 August 2016 at question 89.
[5] Applicant’s Form 866C signed 30 August 2016 at question 90.
[6] Applicant’s statement dated 22 August 2016.
On 05 September 2017, the Minister’s Delegate interviewed the applicant.
On 11 September 2017, the Minister’s Delegate refused to grant a protection visa to the applicant, finding that s36(3) of Migration Act was engaged by way of agreement between Nepal and India[7], which provides, inter alia[8]:
The Governments of India and Nepal agree to grant, on reciprocal basis, to the nationals of one country in the territories o the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.
The Minister’s Delegate found that the applicant failed to avail himself of protection rights he had in neighbouring India. Indeed, the applicant admitted this to the Minister’s Delegate: “The Applicant conceded during his Protection visa interview that he was aware of his lawful right of entry and residency in India but he has not taken any steps in this regard.”[9] The Minister’s Delegate also found that s36(4)(a) was not enlivened, nor were sections 36(4), 36(5) and or 36(5A).[10] Given the particular circumstances of this applicant’s case, it is necessary to read, very closely, as I have done, the decision of the Minister’s Delegate and to identify these bases of the findings in relation to the applicant.[11]
[7] Treaty of Peace and Friendship between the Government of India and the Government of Nepal, done at Kathmandu, 31 July 1950.
[8] Treaty of Peace and Friendship between the Government of India and the Government of Nepal, done at Kathmandu, 31 July 1950, at Article 7.
[9] Applicant’s Protection Visa Decision Record of 11 September 2017 at page 5.
[10] Applicant’s Protection Visa Decision Record of 11 September 2017 at pages 5 to 8.
[11] See the Applicant’s Protection Visa Decision Record of 11 September 2017.
On 19 September 2017, the applicant applied to this Tribunal for review of the decision of the Minister’s Delegate.
On 18 October 2022, this case was supposed to have been heard by the Tribunal. It was instead postponed at the applicant’s request.
On 02 December 2022, this case was supposed to have been heard by the Tribunal. It was, again, instead postponed at the applicant’s request.
On 23 June 2023, this case was supposed to have been heard by the Tribunal. The hearing commenced but the applicant said he was sick, with influenza, stomach aches, and headaches. The matter was adjourned to a future date.
On 04 August 2023, this case was supposed to resume before the Tribunal. It was instead postponed at the applicant’s request.
On 01 September 2023, this case was supposed to resume before the Tribunal. The applicant was notified of the hearing date, time, and place. The applicant failed to attend.
The Disposition of this Case
Pursuant to s.426A(1) and (1A) of the Migration Act, the Tribunal will make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant neither appeared at the time and date of the scheduled hearing, nor did he otherwise materially contact the Tribunal prior to this decision being made.
After considering, very closely, the claims made by the applicant, pursuant to s.426A, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). 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.84, made under s 499 of Migration Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Any application to this Tribunal, even where an applicant has not appeared for its hearing, is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.
In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task[12]:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is what protection claims can the applicant validly make in circumstances where the applicant has already admitted to the Department that he took no steps to exercise his rights to enter and reside in India[13]: see s 36(3) of the Migration Act.
[13] Applicant’s Protection Visa Decision Record of 11 September 2017 at page 5.
Department’s refusal of the applicant’s case
The decision of the Minister’s Delegate notes that the applicant was aware of his rights and did not exercise them. In particular, the Minister’s Delegate also made other relevant findings in relation to the applicant[14]:
[14] See the Applicant’s Protection Visa Decision Record of 11 September 2017 at pages 5, 7-8.
As indicated above, I am satisfied that by simply presenting evidence of his Nepali citizenship at the entry point into India, the Applicant would be able to enter and reside in India. The Applicant conceded during his Protection visa interview that he was aware of his lawful right of entry and residency in India but he has not taken any steps in this regard. As the Applicant has not taken all possible steps to avail himself of his right to enter and reside in India, s 36(3) of the Act applies, and I will now consider s 36(4)-(5A) of the Act.
…
Finding on well-founded fear of persecution or real risk of significant harm in India
I find that the Applicant does not have a well-founded fear of persecuted for reasons of: race, religion, nationality, membership of a particular social group or political opinion. Further, there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant availing himself of the right to enter and reside in India, there would be a real risk that he will suffer significant harm in relation to India, as outlined in s 36(4)…
Well-founded fear that the Applicant will be returned to Nepal from India (s 5 and s 5A of the Act)
Section 36(3) of the Act also does not apply if an applicant has a well-founded fear that India will return him/her to a country in which he/she has a well-founded fear of persecution for a reason outlined in s 5J(1)(a)… or where there are substantial reasons for believing that an applicant is at real risk of suffering significant harm.
Despite not having ratified the 1951 UN Convention relating to the Status of Refugees and its 1967Protocol, India accepts and recognises large numbers of refugees from neighbouring countries. There are no reports of India deporting UN-mandated refugees to their country of origin, including Nepal. During the time of the Maoist insurgency in Nepal, until it ended in 2006, reports emerged of Nepali nationals being deported from India due to alleged links to Maoist insurgent groups but there have been few reports of deportations since. The Applicant has not raised any claims that he has or had Maoist links in Nepal other than by coercion, and there is no other evidence before me that he has or had Maoist links in Nepal other than by coercion.
While I have made no finding as to whether the Applicant has a well-founded fear of persecution or is at real risk of suffering significant harm in Nepal, there is no country information that suggests India would return to Nepal a Nepali national who fears harm there. Additionally, the Applicant does not have any personal characteristics which would increase the likelihood of him being deported from India to Neppal.
Finding on well-founded fear that the Applicant will be returned to Nepal
I find that the Applicant does not have a well-founded fear that India will return him to a country in which he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political or where there are substantial grounds for believing the Applicant is at real risk of suffering significant harm, as outlined in s 36(5) and s 36(5A) of the Act.
Finding on protection in another country
As the exceptions in s 36(4), s 36(5) and/or s 36(5A) of the Act are not enlivened in this case, s 36(3) of the Act does apply to the Applicant. Accordingly, I find that the Applicant has statutory effective protection in a third country pursuant to s 36(3) of the Act.
I set these out at some length to make clear that it is for the applicant to persuade, or at least attempt to persuade, this Tribunal that the Minister’s Delegate was wrong in making these findings, and that, instead, per Drake, the correct or preferable decision, on the whole of the material before the Tribunal (including material that the applicant can and should put before the Tribunal) is to set aside the decision of the Minister’s Delegate under review.
Materials before the Tribunal
I mention the foregoing as it is now over seven years since the applicant first made his protection claims. In this time, all that the applicant has supplied to the Department and the Tribunal is the following materials:
[a]applicant’s written submission/statement to the Department of 22 August 2016;
[b]his written submissions to the Department of 30 August 2016;
[c]his representative's written submissions to the Tribunal of 16 October 2022;
[d]his letter to the Tribunal dated 23 August 2022;
These materials were filed by the applicant or, by his representative, in this case. An exhaustive search of the departmental and Tribunal files in this case has failed to identify anything that the applicant, himself, has said by way of a precise rebuttal of the findings made against him by the Minister’s Delegate. All of the applicant’s materials have been read closely and considered by me in the making of the Tribunal’s decision in the applicant’s case. None of them counter what the applicant himself admitted to the Minister’s Delegate: “The Applicant conceded during his Protection visa interview that he was aware of his lawful right of entry and residency in India but he has not taken any steps in this regard.”[15]
[15] Applicant’s Protection Visa Decision Record of 11 September 2017 at page 5.
I note, in particular, the applicant’s 2022 letter[16] in support of his case, which is the only real direct or indirect evidence received by the Tribunal from him that is of a remotely recent nature. This letter says:
[16] Letter from the applicant to the Tribunal dated 23 August 2022.
Re: My application for protection visa
Dear Respected Member,
The present situation of Nepal seems to have more changes and stress-free lifestyle .from a normal perspective. However, the reality is different as there is not Suitable environment for person like me at local level. The Maoist Rebels (NCPM-Biplov) are still active in the society demanding illegal fund collection and making physical capture by showing their terror, These illegal activities are stilt performed in local levels in Nepal where there is not proper political reach of the government
I am still in. distress from all the physical, mental, and economical tortures and sufferings: that I received from Rebel Nep-Maoist Party in 1995 AD TO 2016 AD. Those years are the ones which I am not able to forget and get past through. The sad fact is that even after 2016, the rebels are still asking and demanding for collections from my family. Because of this, I believe I will not be able to live simple, safe, and comfortable life in Nepal. The fear and terror from rebels will not go easy on me while performing household chores in Nepal. I don't feel secure white getting out from the house and walking at night illegal activities are still performed by rebels wearing strange and different attire in the society.
The main important thing is I feel very safe here in Australia. I am physically and mentally living stress-free life as I don't have to be afraid and think about those rebels. It’s the freedom that matters me here most. I am working independently, walking freely at day, and sleeping peacefully at night. And least of all I am sensing a security which is the main factor for me.
The mutual treaty between Nepal with India "Treaty of Peace and Friendship (India/ Nepal 1950 "The Treaty") is not as practical as it seemed in Treaty document. It has not been properly executed and implemented yet, since being an old treaty. There is not easy procedure and management for the citizenship, which results to live as second and third level citizen. This means, we will not be equally treated and have no equal rights to other so-called citizens. And you can still see and hear the problem, hassles and domination faced by thousands/millions of Nepalese since the very beginning.
India has direct authority in Nepal’s political, diplomatic, and government organization's. activities. So, all the anti-government rebel bodies in Nepal like Nep-Maoist and the Terai Madhesh "Janamat party”held by C K Raut including various physical parties are directly linked and organized by India. There is strong coordination and communication between India's physical Rebel bodies and Nep-Maoist. Therefore, this proves India will not be the right destination for me to live.
I would like to request the tribunal that I will not be safe if I go back to Nepal, I am ready to provide all the information, at the time of hearing,
Thank you for your kind information,
[Applicant name]

I note this letter, written over a year ago, includes assertions and feelings. It makes claims as to what is happening to the applicant’s family, despite the applicant’s family members not supplying any evidence or other information in support of the applicant’s claims as to their state of affairs in Nepal. Despite the applicant’s claims in this letter, and, especially, his statement, “I am ready to provide all the information, at the time of hearing”, no such information was forthcoming from him. The applicant has made very general assertions about Nepal and, also, about India, but he has supplied no relevant evidence or materials supportive of his case to which any sort of weight can (let alone should) be given by a decision-maker, particularly in view of the applicant’s adverse admissions that “… he was aware of his lawful right of entry and residency in India but he has not taken any steps in this regard.”[17]
[17] Applicant’s Protection Visa Decision Record of 11 September 2017 at page 5.
To put this case in its proper context, the applicant’s claims for protection were first raised in September 2016, some seven years ago.[18] The applicant has had an abundance of time to prepare his case. There has been, seemingly, no real effort by the applicant, even after the rejection of his claims by the Minister’s Delegate, to provide any further information, let alone “all the information”, in support of his case. Instead, the applicant’s case is one to be understood from submissions that have been made for him by his representatives, rather than from evidence given by him as an applicant, whether in the form of oral evidence in a hearing, or written evidence in the form of a recently signed statement or statutory declaration. In short, the applicant has not made any sort of serious attempt to make his case. Nor has the applicant tried to provide anything approaching “all the information” that would cause doubt in this Tribunal about the correctness of the decision of the Minister’s Delegate, let alone this decision being set aside.
[18] See the Applicant’s Protection Visa Decision Record of 11 September 2017.
In this Tribunal, it is for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out[19]. Although the concept of an onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him.[20] Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[21]
[19] MIEA v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J.
[20] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J, a decision subsequently endorsed by the Full Court of the Federal Court: Luu v Renevier (1989) 91 ALR 39
[21] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 per Kirby J.
Even if the applicant’s case was not hopeless owing to the operation of s 36(3) of the Migration Act, his case would still fail. The applicant has not raised any matters that would satisfy the Tribunal that any of the statutory elements for the grant of protection are made out. There is no evidence or materials before the Tribunal that could support a finding that the applicant has a well-founded fear of persecution for any of the reasons provided by the Migration Act. There is no evidence or materials before the Tribunal that supply any grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, including to Nepal, there is any real risk that he will suffer significant harm. Neither is there any issue, on the evidence or materials before the Tribunal, that the applicant has any real chance of suffering serious or significant harm in India.
Again, this case was the applicant’s case to make to the Tribunal.[22] This was not done, in any stage of the, at least, seven years that the applicant’s case has been on-foot before the Department and now this Tribunal. At a certain point, the applicant has to make his case or have his case rejected. I see no reason, based on all the materials before the Tribunal, for this Tribunal to contemplate the setting aside of the decision of the Minister’s Delegate. Indeed, the decision made by the Minister’s Delegate was the only reasonable decision that could be made in this case. Given the circumstances of the applicant’s history, and his admissions relevant to s 36(3), as well as his complete lack of any evidence in support of any contentions relevant to the application of s 36(4), (5), and (5A), then there was no other conclusion that the Minister’s Delegate could possibly have reached in relation to this application.
[22] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J.
FINDINGS
For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied 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.

Statement made on 05 September 2023 at 6:12pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
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.
…
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.
…

[2023] AATA 4122

05 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction