1722433 (Refugee)

[2018] AATA 1006

1722433 (Refugee) [2018] AATA 1006 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722433

COUNTRY OF REFERENCE:                  Nepal

MEMBER:Shahyar Roushan

DATE:8 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 March 2018 at 10:55am

CATCHWORDS

Refugee – Protection visa – Nepal – Particular social group – Leprosy sufferers – Imputed political opinion – Nepali Congress Party – Victim of violence – Fear of Maoists – Fear of social stigma – Instability and civil war – Witness credibility – Delay in seeking protection

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection [in] September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   BACKGROUND, CLAIMS AND EVIDENCE

2. The applicant is [an age] year old citizen of Nepal. He travelled to Australia [in] August 2013 on a student visa. He applied for a protection visas [in] August 2017.

   Protection visa application

3. In his application for a protection visa, the applicant stated that he had the right to enter and reside in India. In response to questions in relation to why he was claiming protection, he made the following claims:

4. He left Nepal to peruse education and due to his medical circumstances. He suffers from Hansen’s disease (leprosy). He was not provided with adequate medical care in Nepal. The environment was ‘inferior’ and there were no proper health facilities. He received treatment at [two major health centres], but this ‘did this not help [him] much’. His condition is life-threatening and he could lose his life in Nepal. Due to his leprosy he was unable to attend college regularly and he was avoided by friends, peers and even some relatives. His friends teased him and he was treated like an ‘inferior’. As a result, he was placed under emotional pressure.

5. In addition, due to the civil war, the Maoists were making life harder for him. He was beaten very badly once by Maoists, sustaining a scar on his [body part]. He asked for assistance from the police, but they were unable to find the suspect. He still suffers from leprosy.

6. The applicant submitted medical reports obtained in Nepal in 2012 and 2013, showing that he was diagnosed with, and received treatment for, leprosy.

7. The applicant was interviewed by a delegate of the Minister [in] September 2017. Where relevant, the applicant’s evidence to the delegate is referred to below.

8. The delegate refused the application [in] September 2017. The delegate accepted that the applicant has leprosy. However, he found that the applicant would be able to receive treatment if he were to return to Nepal. The delegate did not find the applicant’s claims regarding his fear of Maoists to be credible and he was not satisfied that the applicant is at risk of harm due to reasons of instability and civil war in Nepal.

   Application for review

9. The applicant applied for a review of the delegate’s decision.

   Pre-hearing submissions

10. In a statutory declaration, dated 10 November 2017, the applicant provided the following information:

    …

    1. I fear that if I was forced to return to Nepal, I would be seriously harmed or killed because of my membership to my father's family group, his membership to the Nepali Congress political party, my imputed political opinion and because of my membership to the particular social group of people suffering leprosy.

    My background

    2.  I was born in Biratnagar about 10 hours difficult drive from Kathmandu on [date].         

    3.   I am the only child of my parents.

    4.   My mother is a house wife and my father is a businessman. Both of them are active members of the Nepali Congress Party. I am providing a copy of a letter of confirmation of membership from the Nepali Congress Party. I will provide a translation of this document as soon as possible.

    Problems in Nepal

    5.   After the rise of Maoists in Nepal, the country fell into political chaos. This made life in Nepal especially difficult.

    6.   My family have long been involved in Nepali politics and I also joined the Nepali Congress Party after I became an adult. I attended meetings from time to time. I helped distribute pamphlets.

    7.   In 2012 I was attacked by a group of Maoists. I was with my friends in the street and was singled out and targeted by the Maoists. I knew they were Maoists because they were wearing the red Maoist scarf with the white star. They beat me hard in the head and I fell unconscious. I do not remember a lot of the details of what happened because I was unconscious.

    8.   This may be why the Department officer at the interview thought I was being vague, but actually it is because I fell unconscious soon after they started beating me. It is also because these are difficult memories for me and I have tried to put it behind me.

    9.   The next memory I have is waking up in the hospital. I was held in the hospital for about 10 days I think.

    10. I came to understand later that I had been dumped near a river with deep wounds.

    11. My father also told me that I had been attacked because he did not pay the Maoists the money they had been demanding in the months preceding the incident where I was attacked. They were targeting him because he is a member of Congress and a business man. They had been threatening him that they would take action against me if he did not pay. He said he started trying to arrange the money but he could not get enough money together to meet their demands.

    12. I am providing a newspaper article that refers to the incident where I was attacked by the Maoists and shows a picture of my [body part]. I did not remember about the article at the time of the Department Interview which is why I didn't provide it previously. I had been trying to forget what happened to me so maybe that is why I didn't remember at that time. I remembered about the article because I was speaking with a friend after the Department's decision and he asked whether I had any evidence of being attacked by the Maoists, then I remembered there had been a newspaper article at the time and asked my parents about it and they emailed me a scan of the original newspaper clipping they had. I have asked them to send the original by post but it has not arrived yet. I can provide it to the Tribunal as soon as it does should the Member wish to view it.

    13. I am in the process of getting the money together to get a translation of the newspaper article and will provide that to the Tribunal as soon as possible.

    14. Soon after I was released from the hospital, I spoke to the police. They took a report but nothing ever eventuated and I understood that they were unable to do anything to protect me.

    15. Soon after I was released from the hospital, my father started talking about getting me out of the country because he said it was not safe for me to stay in Nepal. He didn't give me all the details but I understood that I was at risk because I was his son and because of his active involvement in the Nepali Congress Party, as well my own membership and involvement in the party.

    16. My father sent me to Kathmandu to try and avoid the Maoists in our local area. He told me that he was getting phone calls and threats related to my absence from home. He didn't say too much about it but told me to stay there.

    17. I stayed with a family friend in Kathmandu for about 6 or 7 months. Soon after I arrived in Kathmandu I felt I was being followed by Maoists there. One day I was on the bus and there were 3 or 4 Maoists on the same bus. I knew they were Maoists because they were wearing the red scarf. They were speaking to each other in hushed voices and pointing towards me with their eyes. I felt very scared that I was going to be attacked again, so I quickly asked the bus driver to stop the bus, then I jumped off and ran through the street and hid. I saw that they also got off the bus and tried to follow me but I ran fast in a zig zag and then hid behind a wall. I stayed hiding there for some time until evening and then caught a taxi directly home.

    18. After that incident I was too scared to leave the house. I barely left the house (except for when I was at the hospital) for the rest of my time in Kathmandu. My friend would bring me food to eat.

    19. While I was in Kathmandu, my father was making arrangements for me to leave Nepal so that I would be safe. He told me he found someone who would help me to get a visa for Australia,

    20. While I was waiting for my visa to come to Australia, I started getting strange symptoms on my legs. I told my parents and they came for me and took me to the hospital in Kathmandu. I was diagnosed with Hansen's Disease (leprosy).

    21. My parents went to a few different hospitals to get the medicines I needed. The hospital gave me a one year packet of medicine to take as my treatment.

    22. After the hospital I returned to stay in Kathmandu at my friend's house. I experienced a lot of discrimination. Friends stopped visiting me after they heard the diagnosis. It was very difficult time for me. I was under a lot of pressure from the social stigma and discrimination.

    23. I returned to my home area and also experienced a lot of discrimination there. Even my own relatives stopped talking to me and treated me differently.

    24. Soon after this I received an email advising me that my student visa had been approved. My father helped me making all the arrangements to then come to Australia so that I could be safe.

    Seeking protection in Australia

    25. After I got to Australia, I started studying as required by my student visa.

    26. I did not know anything about applying for protection here and was just doing what I understood I was required to do as part of my visa requirements.

    27. Even after I was in Australia, my father was receiving threatening calls about where I was.

    28. I completed my English studies and then started my [next course]. My student visa was cancelled after I was unable to cover the course costs. I appealed the decision at the MRT but due to my medical condition, I was unable to attend the Tribunal. My review appeal was refused.

    29.      After my visa expired, I was very stressed and scared to return to Nepal. I became very disturbed mentally and physically. I started having leprosy symptoms again and [symptoms discussed]. I started drinking as a desperate  attempt to deal with the situation. I was staying with a [relative] during that time. He kept asking me to go to the hospital but I was scared.

    30. After I was [detained] I was given medical treatment and they explained that it looked like I had a relapse of symptoms due to the stress I was experiencing.

    31. While I was in the detention centre, I started talking to a friend there about my situation and why I was scared to go back to Nepal. He told me that I should apply for a protection visa and also gave me the details for a lawyer to contact. It was not until that time that I came to know about the protection visa.

    My fears if I am returned to Nepal

    32. If I return to Nepal, I fear that I will be seriously harmed or killed by the Maoists or others associated with them. I fear this will happen because I am my father's only son, because of his active involvement in Nepali Congress Party and because I am imputed to hold a political opinion against their interests. Even though the country situation in Nepal has changed, Maoist attacks and violence are still ongoing and I fear that I would still be targeted and at risk of harm if I returned there now.

    33. I also fear discrimination amounting to serious harm because I suffer from leprosy. My friends and family in Nepal have already spread the information that I have leprosy. There is so much stigma against people known to have leprosy that I fear I would be denied work and housing affecting my capacity to subsist. I also fear that I would be denied meaningful social connection and that this would cause me serious harm in my current psychological state and vulnerability.

    34. The risk of harm I fear exists throughout the country and there is nowhere in Nepal I can be safe.

    35. The police and authorities in Nepal are unable and unwilling to protect me from the risk of harm I fear if I am returned there.

    36.      The lawyer explained to me that there is a Peace Treaty between India and Nepal and this could affect my application. I have never been to India and have no idea how to enter the country. I fear that even if I went to India, I would still be at risk of being seriously harmed there.

    37. I fear that the Maoists could easily find and hurt me in India if they wanted to. I also fear the stigma and discrimination I would face as a person suffering leprosy. I understand that people with leprosy in India face a lot of problems and discrimination. I am providing a Reuters newspaper article on this topic which mentions that there are at least 15 laws discriminating against people with leprosy in India. It also refers to the discrimination that exists in Nepal against people in my situation.

    38. I think the treatment I would face in India would be even worse for me because I am not a citizen there and would be trying to come into a new community or place. I fear that if I am discovered to have leprosy, my life would be at risk because people might harm me and I would be likely to have difficulty finding work and housing. It is foreseeable that my leprosy would be discovered because I will need ongoing treatment and medication from an appropriate centre.

    39. I will be able to provide more details of the medical treatment I require as soon as the hospital or doctor provide me the information which I can pass on to the Tribunal. Last time I was there they told me I need to go 'slowly slowly' with my treatment.

    40. I have also been referred to [an agency] for counselling and am waiting for them to allocate a counsellor and contact me to begin sessions.

    …

    The applicant also provided the following documents in support of the review:

    a.A news report, dated 23 January 2015, in relation to discriminatory laws against leprosy sufferers in various countries in the world, titled ‘Laws deny leprosy sufferers right to work, travel, marry: study’.

    b.Copy of an untranslated document, which he claimed to be a ‘letter of confirmation of membership from the Nepali Congress Party’. Subsequently, the applicant provided a translation of the letter. The translation suggests that the letter was issued [in] November 2017 (Nepali date of [date]) by [Mr A, an office bearer], Nepali Congress, [at a specified office]. The letter stated that the applicant’s father and mother are active members of the Nepali Congress and the applicant ‘has been working with Nepal Student Union, a fraternal organisation of Nepali Congress since a very long time’.

    c.Copy and certified translation of a newspaper article, purportedly published in [Newspaper 1]. The Nepali copy of the article features the applicant’s photograph. According to the translation, the article, which was published on [a date in] December 2012, states: ‘Biratnagar, [Dated the previous day].  [Details of attack on the applicant deleted.] It was further claimed in the article that the applicant’s father was under pressure from the [specified] Maoist group to pay donations ‘for a long time’ and was being threatened with physical harm. The article stated that, according to the applicant’s father, the group kidnapped his son and ‘tried to kill him’ for not being able to pay donations beyond his capacity.

11. On 14 November 2017, the applicant submitted copies of the medical reports obtained in Nepal and previously submitted to the Department of Immigration and Border Protection (the Department). He also submitted more recent medical evidence obtained in Australia relating to his condition. This evidence included two letters to the applicant’s GP, [Doctor A], dated [in] September 2017; from [Doctor B], Infectious Diseases [Specialist] (co-signed by [Doctor C], [another] Specialist) [in] Infectious Diseases [Hospital 1]; letter to [Doctor B] from [Doctor D], Dermatology [Specialist] at [Hospital 1]; and clinical notes, Xray and pathology results.

12. In his letter [in] September 2017, [Doctor B] stated that, following his arrival in Australia in 2013, the applicant completed eight further months of Hansen's disease treatment in the community. After completing treatment in early 2014, the applicant experienced no other issues aside from occasional 'tightness' in his calves and ankles. [Doctor B] concluded:

    In summary, [the applicant] is now almost 4 years post completion of what appears to have been appropriate Hansen’s Disease treatment. Australian guidelines suggest extended treatment for patients with a high burden of disease but this is not based on evidence and is longer than international guidelines suggest. Given that [the applicant] is thus far free of signs of relapse and that his burden of disease at diagnosis has never been truly established I have elected not to pursue recommencement of treatment at this time. We would generally follow-up patients who have completed multi-bacillary Hansen's Disease treatment for a minimum of 6 years with regular nerve examination and skin checks. I will review [the applicant] again in one month and following this if things remain well he can be reviewed in our [specified] clinic at [Hospital 1].

13. The applicant appeared before the Tribunal to give oral evidence and present arguments at a hearing held on 16 November 2017 (the AAT hearing). The applicant was assisted by an interpreter in the Nepali and English languages.

14. Following the hearing, the applicant submitted a statutory declaration, dated 1 December 2017, offering explanations in relation to the Tribunal's concerns regarding the [Newspaper 1] article. He also submitted an original copy of the newspaper.

    CRITERIA FOR A PROTECTION VISA

    The relevant law

15. 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.

16. 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.

17. 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).

18. 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.

1. 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

2. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to the reasons detailed below. 

   Political opinion

4. Following his application for review, in his statutory declaration of 10 November 2017, the applicant claimed for the first time that his family have long been involved in Nepali politics, that both his parents are active members of the Nepali Congress Party (Nepali Congress), that he was a member of the Nepali Congress and that he attended meetings and helped distribute pamphlets. The applicant also claimed for the first time that he was attacked in 2012 by Maoists because his father did not pay the donations the Maoists were demanding in the months preceding the incident. The Maoists were targeting his father because he is a member of Nepali Congress and a businessman and that the Maoists had threatened his father that they would take action against the applicant if he did not pay. If he were to return to Nepal, he would be seriously harmed or killed by the Maoists or others associated with them.

5. At the Tribunal hearing, the applicant essentially repeated these claims, stating that he was attacked by Maoists on [a date in] December 2012. He said he had been attacked because they had asked his father for donations, which he had not provided to them.

6. The claims put forward by the applicant in connection with his application for review were absent from, or inconsistent with, the evidence he had presented to the Department.

7. In his application for a protection visa, in response to questions in relation to his reasons for claiming protection, the applicant appeared to present his illness as the main reason. For example, in response to question 76 (‘Why did you leave [Nepal]?’), he said he left Nepal to ‘pursue education’ and due to his ‘medical circumstances’. He said he was not provided with proper health facilities and it was an ‘inferior environment’ for him. He then added that the Maoists party were ‘making my life harder because of civil war’ and that he was ‘tortured brutally once’. The applicant then continued to expand on his claims regarding his circumstances in Nepal due to his illness.

8. In response to question 77 (‘What do you think will happen to you if you return to that country?’), the applicant said he could lose his life because of his illness and claimed to have been socially isolated.

9. In response to question 78 (Did you experience harm in that country?’), the applicant stated that he was badly beaten by Maoists on one occasion. He then went on to refer to his medical condition. In response to question 80 (‘Did you move or try to move to another part of the country?’), the applicant said he tried to move to Kathmandu to hide his identity from the Maoist party and also for treatment. In response to question 81 (‘Do you think you will be harmed or mistreated if you move to that country?’), the applicant referred to being ignored or treated like an ‘inferior’ by friends and relatives. He then noted that the Maoist party treated him ‘inhumanely’. In response to question 83 (‘Do you think you would be able to relocate within that country?’), the applicant’s reasons for his inability to relocated centred on his illness and his need for support from his family.  

10. In his application for a protection visa, the applicant did not claim that he was a member of the Nepali Congress, he did not claim that his parents were members of the Nepali Congress, he did not claim that he was attacked because the Maoists were trying to force his father to pay donations, and, whilst he referred to being beaten on one occasion, the applicant did not claim to fear harm from Maoists for any reason. The applicant’s failure to mention these claims in his application for a protection visa raises doubt in relation to the veracity of his claims.

11. Similarly, in his interview with the delegate, when asked why he had applied for a protection visa, the applicant stated that he has leprosy and he cannot access proper treatment in Nepal. He was also ignored by friends and relatives. The applicant then stated that he was beaten by Maoists at the end of 2012 or early 2013. When asked for additional details, the applicant stated that he was with his friends when a group consisting of five persons attacked them. His friends ran away and he was the one who got caught. They beat him and left him. The applicant told the delegate that these things happen all the time in Nepal. When asked how he knew he was attacked by Maoists, the applicant said he did not know, but they were a group of people who were doing these things. When pressed by the delegate, he said his assailants covered themselves with Maoists slogans and he guessed they were Maoists. The applicant did not offer any other information in relation to why he was assaulted, but claimed to have been followed by Maoists in Kathmandu. When the delegate put to him that the incident in his home town was circumstantial and asked him why he had been followed by Maoists in Kathmandu, he said he did not know. The applicant made no mention of his or his family’s political affiliations or his father ever having been extorted or asked for donations. Nor did he mention that he had been singled out by Maoists because of his father’s failure to pay donations or that threats had been made against him by Maoists.

12. The applicant’s oral evidence to the delegate and his failure to mention to the Department some of the key claims raised in connection with his application for review were put to him at the hearing under s.424AA of the Act. The applicant responded that he had mentioned being attacked by Maoists and that they had worn scarfs. He did not know that the article in the newspaper can be used as evidence. He has a scar on his [body part] and the incident happened, he was hiding in Kathmandu and he was followed once. He said he and his parents are members of the Nepali Congress. The Tribunal did not find the applicant’s explanations for the significant inconsistencies in his evidence convincing. The Tribunal has also taken into account the applicant’s explanation in his statutory declaration of 10 November 2017 that the delegate had thought that his evidence in relation to the December 2012 was vague because he had fallen unconscious soon after the beating started. He stated that these are ‘difficult memories’ for him, which he has tried to put behind him. The applicant’s response and explanations do not satisfactorily address his failure to raise key claims in his application for a protection visa and his interview with the delegate. Nor do they persuasively explain the inconsistencies in his evidence. The Tribunal is of the view that the applicant has introduced new claims and has fabricated evidence in order to strengthen his case for a protection visa. In reaching this view, the Tribunal has also relied on the following reasons:

13. First, the Tribunal found key aspects of the applicant’s evidence highly implausible and unpersuasive. In his statutory declaration of 10 November 2017 and in his oral evidence to the Tribunal, the applicant claimed that he was targeted by the Maoists because of his father’s refusal or inability to pay donations to the Maoists. In his statutory declaration, he said the Maoists had been threatening his father that they would take action against the applicant if he did not pay. He further claimed that, after he relocated to Kathmandu, his father had received phone calls and threats related to his absence from home and that his father had received calls about the applicant even after he came to Australia.

14. The Tribunal asked the applicant at the hearing, if the Maoists’ actions were motivated by their desire to extract donations from his father, why they had targeted him and not his father. He said he did not know, but after a while he found out that the Maoists had demanded donations, his father did not give any donations and he (the applicant) was attacked. When pressed, the applicant repeated that he did not know why he had been attacked. The applicant was also asked, if the Maoists in his locality had turned their attention on him to secure donations from his father, how the Maoists in Kathmandu had been able to recognise and target him. He said he was also surprised by this. When asked why the Maoists had put time and resources into following him in Kathmandu, he said it was because of his political opinion and the fact that they wanted to take revenge. When asked what they wanted to take revenge for, he said because of his father’s failure to pay donations. When asked again, if the Maoists were motivated by extracting funds from his father, why they had focussed on him, he said he did not know. When asked why they had never harmed his father or his business, he said because he was the only child.

15. The applicant had no political profile and his evidence to the Tribunal clearly indicated that the Maoists had targeted him because they wanted to use him as leverage to extract donations from his father. The applicant did not claim that his father or his father’s business had been targeted for harm, including during the periods of time the applicant was absent from his locality, as a means of putting pressure on him to pay the claimed donations. It is, therefore, difficult to understand why the Maoists were calling the applicant’s father and making threats in relation to the applicant’s absence instead of pressing their demands for donations. It would be reasonable to assume that, if the applicant had not been accessible to be used as a leverage to put pressure on his father, the Maoists could have employed other means of enforcing their demands. The Tribunal does not consider it plausible or credible that the Maoists had continued to make threats or enquiries in relation to the applicant’s whereabouts, but they had never directly targeted his father to extract donations. The Tribunal finds the applicant’s evidence in this regard unpersuasive and lacking in credibility.

16. Secondly, the applicant lodged his application for a protection visa more than four years after he arrived in Australia. According to the delegate’s decision record, a copy of which was provided by the applicant to the Tribunal, the applicant arrived in Australia [in] August 2013. Hi student visa was cancelled [in] November 2015 and he remained in Australia unlawfully until he was taken into immigration detention [in] June 2017. The applicant applied for a protection visa [in] August 2017. In his statutory declaration of 10 November 2017, the applicant said, after arriving in Australia, he did not know anything about applying for protection here. He also stated that he had sought a review of the Department’s decision to cancel his visa, but he was unable to attend his hearing and the decision was affirmed.  

17. At the hearing, the Tribunal discussed with the applicant his delay in lodging his application for a protection visa. The applicant told the Tribunal that he wanted to study and did not know about protection visas. After being detained, he wanted to find out what else he can do to remain in Australia and he found out about protection visas. The Tribunal finds this explanation unpersuasive. The applicant is educated, he has English language skills and he had dealings with the Department in connection with his student visa. Furthermore, one of the applicant’s witnesses at the hearing, [Mr B], told the Tribunal that he had met the applicant and befriended him in a pub in 2013 and had established stronger contacts with him in 2015. The applicant, therefore, had established connections with members of the Australian community, who would have been able to, at the very least, mention the notorious fact that Australia is a refugee resettlement country had the applicant enquired about protection. The Tribunal, therefore, does not accept that the applicant’s delay of four years in asking for protection in Australia was due to his lack of knowledge about protection visas. The Tribunal is of the view that the applicant’s significant delay in lodging his application for a protection visa casts serious doubt on the credibility of his claims and the genuineness of his fear of persecution.

18. Thirdly, the Tribunal had serious concerns in relation to the documents submitted by the applicant relating to his political opinion and past experiences. As noted above, the applicant submitted the original copy and photocopies of a purported newspaper, containing an article in relation to the claimed incident in 2012 and featuring the applicant’s photograph. The newspaper’s front page, which is entirely in Nepali, displays the English date of ‘[specified date]’ immediately below the newspaper’s name, [Newspaper 1]. The applicant also submitted a certified translation of the article, indicating that that the newspaper was printed on [the same date in] December 2012. According to the translation, the specific article referring to the applicant states ‘Biratnagar, [dated the previous day in] December ([and the same date in the] [Nepalese Calendar Year – Bikram Sambat]. [Details deleted of an attack on the specified day.] …’

19. As it was put to the applicant at the hearing, online Nepal date converters[1] show that [the earlier date in] December 2012 was [specified Nepali Calendar date] and not [the Nepali Calendar date] as stated in the article.  [The Nepali Calendar date stated in the article] was [date] December 2012, the day the newspaper was printed. The article refers to the claimed attack occurring on ‘[that] night’. At the hearing, the applicant stated that he did not know about the date. The Tribunal considers it highly improbable that a daily newspaper printed on [the specified date in] December 2012 had featured an article in relation to an incident that appears to have occurred on the evening of [the same day]. The article also states that the applicant’s father had reported that the group had kidnapped his son and ‘tried to kill him’ for not being able to pay donations beyond his capacity. The applicant did not claim to have been kidnapped. When this was put to him at the hearing, he stated he did not know anything after he was bashed.

    [1] See Rajan’s Nepal Date Converter, and Nepali Date Converter,

20. Following the hearing, the applicant provided the Tribunal with further explanations in a statutory declaration, dated 1 December 2017. In his statutory declaration, the applicant stated:

    The Article shows the English publication date as [the specified date in] December 2012, which is incorrect because the article was actually published on [the following day]. The Nepali publication date is day [number] of the Nepali month [named], in Nepali year 2069 and so should have been accurately translated as [the following day in] December 2012.

    I have seen this kind of publishing mistake in Nepalese newspapers before.

    There was also an error in the translation provided by the Nepalese translator ... He used the incorrect English publication date and has not listed the accurate Nepalese publication date. In the body of the article, he also incorrectly translated [the specified date] as [the previous date in] December, instead of [the specified date in] December which is accurate. I have asked him to correct his mistakes and will provide the updated translation as soon possible.

    The incident in which I was beaten occurred on [the specified day in] December 2012 ([with Nepali Calendar equivalent]) and the newspaper article describing the incident which I have provided was published on [the following date in] December 2012 ([with Nepali Calendar equivalent]).

    As explained in my previous statement, I was attacked because of my imputed and real political opinion and involvement, and because of my association with my father who is a member of the Nepalese Congress and a businessman.

21. The applicant did not provide the Tribunal with an ‘updated’ or new translation to support the assertions made in his statutory declaration. The applicant, nevertheless, appears to concede that the English publication date of the newspaper is incorrect or was a ‘mistake’. This error and the other concerns identified by the Tribunal cast doubt on the reliability of the purported newspaper and its contents, as well as the credibility of the applicant’s claims.

22. The applicant also submitted a copy and translation of a letter issued [in] November 2017 (Nepali date of [date]) by [Mr A, an office bearer], Nepali Congress, [at a specified office]. The letter stated that the applicant’s father and mother are active members of the Nepali Congress and the applicant ‘has been working with Nepal Student Union, a fraternal organisation of Nepali Congress since a very long time’. At the hearing, the applicant was asked a number of questions in relation to his political affiliations and activities. Whilst the applicant stated that he was a member of the Nepali Congress, he did not mention being a member of, associated with or having carried out any activities for Nepal Student Union. When this was put to him, he said Nepal Student Union belongs to the Nepali Congress. The applicant did not comment when asked why he had not mentioned the Nepal Student Union in his evidence. The inconsistency between the applicant’s evidence and the contents of the purported letter in relation to his membership cast doubt on the reliability of the letter and the applicant’s credibility.

23. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness. The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose.

24. As it was put to the applicant at the hearing, independent country information before the Tribunal indicates that document fraud in Nepal is widespread.[2] In light of the country information about the prevalence and ease of acquiring false or fake documents, together with the inconsistencies between the documentary and oral evidence, and the overall unfavourable assessment of the applicant’s credibility, the Tribunal places no weight on the news article and the letter of support from the Nepali Congress.  

    [2] Immigration and Refugee Board of Canada, Nepal: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January 2009, NPL103010,

1. The Tribunal has also considered the evidence of the applicant’s two witnesses at the hearing. [Mr B] told the Tribunal that he was not familiar with the applicant’s claims, but he believed him to be of good character. The applicant’s [relative, named], told the Tribunal that he lived in a different locality in Nepal and some distance away from the applicant. [The relative] could not offer any meaningful information in relation to the applicant’s circumstances in Nepal other than confirming that he is an only child and that he has Hansen’s disease. He also stated that he knew that applicant had been beaten once, but he was unable to provide any details in relation to the incident. The evidence of the applicant’s two witnesses does little to overcome the significant concerns the Tribunal has identified in connection with the credibility of the applicant’s claims.

2. The Tribunal, therefore, does not accept that the applicant was a member or supporter of the Nepali Congress. The Tribunal does not accept that the applicant’s parents were members or supporters of Nepali Congress. The Tribunal does not accept that Maoists had extorted his father or had demanded donations. The Tribunal does not accept that the applicant’s father or his father’s business was targeted by Maoists or anyone else in Nepal. The Tribunal does not accept that the applicant was threatened, harassed or harmed by Maoists or anyone else in Nepal because his father is a member of the Nepali Congress and a businessman. The Tribunal does not accept that the applicant was assaulted and/or mistreated by Maoists in 2012 or at any point prior to his departure. The Tribunal does not accept that threats were made against the applicant by Maoists through his father either before or after his departure from Australia. The Tribunal does not accept that the applicant was hiding in Kathmandu. The Tribunal does not accept that the applicant was followed, monitored, wanted or pursued for any reason by the Maoists or anyone else while residing in Kathmandu. The Tribunal does not accept that Maoists have any interest in the applicant or any member of the applicant’s family. The Tribunal does not accept that the applicant is imputed to hold a political opinion against the Maoists’ interests.

3. On the basis of the evidence before it, the Tribunal does not accept there is a real chance or a real risk that the applicant will be imputed with a political opinion that may be thought to be adverse to the Maoists or any other party or group. The Tribunal does not accept that there is a real chance or a real risk that the applicant will be targeted by Maoists or anyone else in Nepal because of his political opinion, his family’s political opinion or membership of any particular social group, including his family and Nepal Congress, or a combination of these reasons.

4. In his evidence to the Department, the applicant referred to fearing harm as a result of the civil war. In its 2016 Nepal Country Information Report, DFAT stated:

   3.28 … Prior to the 2013 elections, the political environment suffered instability, including some violence by supporters linked to the main Maoist party on members of other parties, and on people who allegedly informed on the Maoists during the civil war. Supporters linked to the other leading parties were also accused of attacking supporters of the Maoists during 2013.

   3.29 At the time of publication, the situation has significantly changed. Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk is low.[3]

   [3] DFAT, DFAT Country Information Report: Nepal, 21 April 2016.

5. The Tribunal has rejected the applicant’s claims that he or any other member of his immediate family was a member or supporter of any political party. The Tribunal has also rejected the applicant’s claims that Maoists have any adverse interest in him. The Tribunal finds that the applicant does not face a real chance or a real risk of facing serious or significant harm in Nepal for the reason of his political opinion. In the context of general political violence, tension and periodic instability, there is no persuasive evidence before the Tribunal to suggest that the applicant, personally, will be subjected to harm as a result of these conditions. The Tribunal is not satisfied that the ‘civil war’, ongoing tension or sporadic political violence in Nepal would expose the applicant to a real chance of persecution.

6. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the instability, tension or the political violence the applicant is concerned about is faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Nepal as a result of general lack of security, instability and tension.

   Hansen’s disease

7. On the basis of the medical evidence submitted, the Tribunal accepts that the applicant had contracted Hansen’s disease in Nepal. According to his evidence to the Tribunal, the applicant was able to access suitable treatment and obtained the medication he required.

8. In his letter [of] September 2017, [Doctor B] stated that the applicant had received ‘appropriate’ Hansen’s disease treatment in Nepal. He stated that, four years after this treatment, he is ‘thus far free of signs of relapse’. At the hearing, the applicant acknowledged that he had received treatment in Nepal. However, he said the standards of medical care in Nepal and Australia are not comparable. As it was put to the applicant, comparatively lower standards of health care in Nepal do not mean that he would be exposed to serious or significant harm.

9. In April 2016 DFAT reported:

   2.15 Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. The country has a variety of public and private health-care facilities. Public health facilities include sub-health posts, health posts, primary health-care centres and district hospitals. Private health facilities range from formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges and non-governmental organisations or community-run hospitals to informal practitioners such as faith healers (jhankri or shamans) and Ayurvedic practitioners … Hospitals in Nepal tend to be located in urban areas and provide a much wider range of medical services. [4]

   [4] DFAT, DFAT Country Information Report: Nepal, 21 April 2016.

10. According to the website of the Leprosy Mission of Nepal:

    Nepal is the country with the seventh highest number of new leprosy cases diagnosed each year, with latest WHO figures revealing 3,254 people diagnosed in 2014, an increase from the previous year, of which 6% were children.  The number of people being diagnosed with leprosy in Nepal is greatly reduced from earlier years, nevertheless, it continues to be a health issues, in particular in the Terai area neighbouring India.

    In 2015 the Government Leprosy Control Division has reported the number of new case diagnoses in the last year as 3253. The General Health Services run by the Government now extend throughout Nepal and are primarily responsible for diagnosis and treatment with the standard multiple drug therapy. The Government plan to complete a pilot prophylaxis programme in selected districts of Nepal among long-term contacts of people recently diagnosed with leprosy. If this is proven to be practical then it will be extended across the whole country. The hope is that this will break the chain of transmission and be a key step towards eradicating leprosy in Nepal.[5]

    [5] See Leprosy Mission of Nepal, ‘Leprosy in Nepal’, >

    The Leprosy Control Division is a division of Nepal’s Department of Health Services responsible for planning and implementation of leprosy control programs. The Division identifies its objectives as follows:

    ·To sustain elimination of leprosy (Prevalence Rate below 1 per 10,000 population) and further reduce disease burden.

    ·To reduce disability due to leprosy.

    ·To provide high quality service for all persons affected by leprosy through integrated set-up.

    ·To eliminate stigma /discrimination against persons and families affected by leprosy.[6]

    [6] Leprosy Control Division, About Us,

11. The Tribunal, therefore, does not accept that the applicant was not provided with adequate medical care in Nepal. Whilst the applicant has been free of relapse for a period of four years, on the basis of the medical treatment he has received in the past, the Tribunal is of the view that, if the applicant were to require further treatment in Nepal, adequate and appropriate health care or treatment would be available to him.  

12. The applicant has claimed that, following his diagnosis with Hansen’s disease, he was avoided or ignored by friends and relatives. In his statutory declaration of 10 November 2017, the applicant stated that, in Nepal, friends stopped visiting him and some relatives ceased talking to him. His friends and family in Nepal have already ‘spread’ the information that he has Hansen’s disease and there is ‘much stigma’ against sufferers. The applicant claimed that he would be denied work and housing. He would also be denied ‘meaningful social connections’, which could cause him ‘serious harm in [his] current psychological state and vulnerability’.

13. The applicant submitted a Reuters article, dated 23 January 2015, in relation to discriminatory laws against leprosy sufferers in various countries in the world. The article referred to a statement by the International Federation of Anti-Leprosy Associations (ILEP) and reported that ‘Thailand, Nepal and Singapore were among countries discriminating against leprosy sufferers when it came to marriage, divorce and employment’. No other details or information were provided in relation to the nature and extent of the discrimination in Nepal. The Tribunal's careful searches of the ILEP’s website and related online publications did not uncover the ‘study’ or the statement referred to in the article or any specific references to laws discriminating against leprosy sufferers in Nepal.

14. In a report by the Office of the United Nations High Commissioner for Human Rights, dated 23 February 2009, reference was made to submissions by NGOs in relation to leprosy in Nepal. It was stated:

    Testimonies about remote areas of Nepal mentioned that people affected by leprosy were not cared for by their families or society; most did not have their human rights, such as those to food, clothing and shelter, met. As a result of social stigma and discrimination, people with leprosy hid their disease. Difficulties faced by persons affected with leprosy in Nepal included the denial of access to religious services, social and community functions and family property. Women affected by leprosy faced further stigma and multiple forms of discrimination. Legislation in Nepal had not yet been modified in relation to non-discrimination. The eleventh edition of the law code of the land (Muluki Ain) 2058 B.S. stated that if a person was affected by leprosy, he or she must be transferred to where the Central District Officer would refer them. In this case, they would lose their family and all their human rights. The same code permitted divorce on the grounds that the spouse had leprosy. The discrimination doubled in the case of female spouses. As leprosy had been categorized as a highly contagious disease, interaction with people affected by leprosy in public places was forbidden. On the basis of this law, those affected by leprosy were still discriminated against and prevented from integrating into their community.[7] (Emphasis added.)

    [7] UN Human Rights Council, Elimination of discrimination against persons affected by leprosy and their family members: Report of the Office of the United Nations High Commissioner for Human Rights, 23 February 2009, A/HRC/10/62, >

    A more recent report by the UN Human Rights Council stated that, in 2015, organisations of persons affected by leprosy in Nepal and other NGOs had successfully lobbied Parliament not to pass a piece of legislation that would have allowed the spouse of a person affected by leprosy to claim divorce.[8]

    [8] UN Human Rights Council, Study on the implementation of the principles and guidelines for the elimination of discrimination against persons affected by leprosy and their family members, 4 May 2017, A/HRC/35/38, >

    As it was put to the applicant at the hearing, the Tribunal has found no other persuasive information in any of the sources consulted, including online media reports and country information reports, to suggest that all those affected by Hansen’s disease in Nepal, regardless of their personal circumstances, are denied access to services or denied the capacity to earn a livelihood. The applicant did not reside in a remote area and his leprosy has not resulted in a manifest disability. He was, and continues to be, supported by his parents. He did not claim that he would not be able to reside with his parents or that they would not provide him with financial assistance if needed.

15. The Tribunal appreciates that there is social stigma attached to the disease and, by extension, to those affected by it. The Tribunal accepts that the applicant had experienced low level discrimination in the past by being ignored or rebuffed by some friends and relatives. The Tribunal appreciates that the applicant had found this reaction upsetting. However, the evidence submitted by the applicant also suggests that he was not rejected by everyone. He resided with a family friend for six or seven months in Kathmandu whilst receiving treatment and a friend brought him food to eat. As already noted, the applicant was also accepted and supported by his immediate family members. The Tribunal does not accept that the applicant’s past experiences in this regard amount to serious or significant harm.

16. The applicant is free of relapse and does not exhibit any physical or external signs of the disease. The Tribunal, nevertheless, accepts that, if he were to return to Nepal, the applicant might experience the same level of discrimination in the form of being avoided by some or feeling socially isolated in certain circumstances. The Tribunal appreciates that the applicant would find this hurtful, but it does not accept that this conduct amounts to serious or significant harm. The applicant has provided no medical reports or psychological evidence to indicate that he is in a ‘psychological state’ or has a mental health condition that is likely to exacerbate the impact of the type of discrimination that he might be subjected to in Nepal. 

17. The Tribunal, therefore, does not accept that the applicant was subjected to serious harm by anyone in the past as a consequence of contracting Hansen’s disease. The Tribunal does not accept that, if the applicant were to return to Nepal and continue to live with his parents, he would suffer serious harm, including discrimination amounting to serious harm and significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens his capacity to subsist, for the reasons of his Hansen’s disease or membership to the particular social group of ‘people suffering leprosy’ in Nepal. The Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will be subjected to any form of discrimination, including discrimination related to his illness, that would amount to ‘significant harm’.

18. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

19. 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

20. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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 criteria in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Shahyar Roushan
    Senior 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.

    …