1723755 (Refugee)

1723755 (Refugee) [2017] AATA 2147 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723755
COUNTRY OF REFERENCE:                  Nepal
MEMBER:David McCulloch
DATE:31 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2017 at 1:22pm

CATCHWORDS
Refugee – Protection visa – Nepal – Social group – Divorcee – Social Stigma – Drug user – Mental health issues – Gang attacks – Credibility issues – Inconsistent claims – Delay in applying for a protection visa – Failed to attend an Immigration interview – Applicant detained – No well-founded fear of persecution
LEGISLATION
Migration Act 1958, ss 5, 5H(1)(a)-(b), 5J, 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2017 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nepal, applied for the visa [in] September 2017.
The applicant appeared before the Tribunal on 27 October 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Nepal, 21 April 2016, a copy of which was provided to the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant provided to the Tribunal a copy of the decision of the delegate. The decision indicates that the applicant did not attend the interview that was scheduled [in] September 2017 at [an] Immigration Detention Facility. He refused to leave his living quarters to attend the interview room. The applicant was contacted via his case manager and he responded that he was feeling unwell, and he requested that the interview be rescheduled. A request was made that the applicant submit evidence of seeking medical assistance or attending the doctor’s office at the Detention Facility. Three days were allowed to provide this information. The applicant failed to produce any evidence and did not provide a reasonable explanation for not doing so. The delegate proceeded to make a decision on the information before him.
The decision of the delegate indicates the following in relation to the applicant’s immigration history. The applicant arrived in Australia onn July 2009 on a [temporary] visa as a dependent of [Ms A]. A [temporary] visa, which had been applied for by the applicant, was granted [in] November 2011. A further [temporary] visa was granted [in] November 2013. The applicant departed Australia [in] January 2014 and re-entered [in] February 2014. The applicant applied for a [temporary] visa onshore [in] March 2016 and this was refused [in] September 2016. The application for the Protection visa was lodged [in] September 2016.
The application forms for the Protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Kathmandu, Nepal. The applicant speaks, reads and writes Nepali, Hindi and English. Whilst the applicant is from a Hindu background he is not practising. The applicant works as a [occupation]. The applicant was married on [date] January 2009 and the relationship began [in] January 2009. The applicant was divorced in 2010. The applicant lists both parents and [a] brother living in Nepal. The applicant lists no previous addresses lived at in Nepal. The applicant lists no employment in Nepal. The applicant studied in Nepal, up until 2005, when he completed a Bachelor [degree]. In Australia the applicant has obtained [multiple qualifications].
The applicant indicates that he left Nepal to [accompany his wife]. He says that he was threatened by a group of people and told to leave the country or never be seen again. The applicant indicates that these people had swords and a Nepalese Gurkha knife. If the applicant had not been assisted by his friends he could have been killed or seriously injured. The applicant does not trust police officers in Nepal who can be bribed. The applicant indicates that those who attacked him have already bribed the police. The applicant indicates that, after this incident, his family and relatives decided to get the applicant married and send him abroad. The applicant fears that those people who attacked him will attack or kill him if he returns to Nepal.
The applicant indicates a concern in returning to Nepal based on being a divorcee. He indicates that divorced people are not treated properly. He realised when he returned in 2014 that everybody, including his friend, showed resentment towards him and did not want the applicant around. This made the applicant depressed and he started to see himself as inferior and to isolate himself. The applicant believes that his family members will mistreat him. The applicant indicates that he is unwanted, will be considered a waste, gay, impotent et cetera.
The applicant indicates that he has been seen by two psychiatrists in [the] Detention Centre. The applicant indicates that he is not mentally fit to return to Nepal. The psychiatrists have indicated that he has a few problems, including personality disorders, and is in mental stress.
The applicant provided to the Tribunal a photograph of a poster an outdoor pole showing a picture of the applicant with text asking if anyone has seen this person and to phone a number and indicating a reward of [amount] lakh rupiah. In the Tribunal hearing the applicant indicated this photograph was sent to him by his brother from Nepal a few months ago. He indicated that it demonstrates that the gang who previously attacked him is searching for him.
On the Department file is a record of a Compliance Client Interview undertaken with the applicant [in] July 2017. The record indicates that the applicant was asked if there are any reasons why he cannot return to his home country and the form indicates that the applicant answered no. The form indicates that the applicant says that he just does not want to go home, and that he will not return.
Independent information - Divorce
The Country Advice section of the former Refugee Review Tribunal provided the following relevant information in relation to the prevalence of divorce in Nepal dated 17 May 2012[1]:
In Nepal during the past decade, legislative changes which allow women to initiate divorce and which provide some protections regarding division of property following divorce, together with women’s increased awareness of their rights and the entry of more women into the workforce, have contributed to an increasing divorce rate.
An article published by the Global Press Institute on 4 May 2012 reported data from the Kathmandu District Court showing that 640 divorce cases were filed in 2005 to 2006, and 1317 cases in 2010 to 2011, a more than doubling of the rate of lodgement. Reportedly, women’s rights advocates are of the view that more women were seeking divorce because increased awareness of their legal rights had helped “combat the social stigma against women for filing divorce”. The article reports that the act of filing for divorce is now easier for women than it is for men, however the divorce process remained “wrought with challenges for women, as society tends to blame them for failed marriages”, and rights that exist in law may be outweighed by cultural norms. For example, an amendment to the Country Code in 2002 gave women the right to property after divorce, however “institutional biases and socially discriminatory practices many times block women from exercising this right to property after divorce... Despite what the law says, many acknowledge that society looks down upon divorce and in most cases blames the women for failed marriages”.[2]
A September 2011 article in The Kathmandu Post reported that filing for divorce by women was “no longer confined to urban centres” and cited the example of Jajarkot District Court which in recent years has seen the number of divorce applications from women “increase precipitously”, with most of these women aged between 15 and 25 years. It reported also that:
...the enactment of Nepal’s Family Law, 2006, which ensured equal distribution of assets between men and women following divorce, allowed women more financial room to lead an independent life. Besides these, growing female literacy and entry of more women into the workforce has also had a visible effect on the divorce rate.[3]
In May 2011, an article in Republica reported that the average age for divorce in cases filed with the Kathmandu District Court was between 20 and 35 years. It stated that women had become able to put aside social stigmas relating to the breakdown of marriages, and that urbanisation, modernisation and female empowerment have “strengthened women to take bold and radical steps which were once considered taboo in Nepali society”. It noted that greater financial security and job opportunities also contributed to women being able to initiate divorce.[4]
An editorial in The Kathmandu Post in October 2010 earlier reported that the reasons for the rising divorce rate included the 2006 legislative changes that had “allowed women the legal option and the means to leave their spouse”, but additionally stated that “along with the growing acceptance of ‘love marriages’, the social stigma attached to getting divorced is slowly loosening”.[5]
[1] RRT Country Advice 2012, Country Advice NPL40596, 23 July ;
[2] Bhusal, K 2012, Rising awareness of legal rights doubles divorce rates in Nepal’s capital, Trust Law, source: Global Press Institute, 4 May < Accessed 9 May 2012
[3] ‘No men, no cry’ 2011, The Katmandu Post [sic], 10 September, FACTIVA – Accessed 15 May 2012
[4] ‘On divorce’ 2011, Republica, 13 May, FACTIVA – Accessed 15 May 2012
[5] ‘It’s complicated’ 2010, The Kathmandu Post, 28 October < Accessed 15 May 2012
DFAT Country Report – Nepal, 21 April 2016 provides as follows in relation to divorce (in the context of the treatment of women):
According to the Women’s Foundation Nepal (a non-profit NGO that assists women and children victims of domestic violence, abuse and poverty), it is difficult to obtain a divorce in Nepal. Legal changes have made it possible for a woman to divorce her husband and still keep some of the property, and even to gain child custody rights. However, such court cases can be lengthy and expensive and it can take many months to obtain a divorce if the woman makes any kind of property or custody claims. Social stigma against divorced women, who can be seen to have contravened family honour, is high.[6]
[6] DFAT Country Report – Nepal, 21 April 2016, para 3.53
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Nepal, and accordingly his claims will be assessed against Nepal.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, the applicant positively indicated to Departmental officials in July 2017 that there were no reasons why he could not return to Nepal and that he just did not want to return. This is inconsistent with later claims that the applicant fears returning to Nepal on the various grounds claimed.
The indication by the applicant that there were no reasons why he could not return to Nepal was provided in response to a specific question in the Compliance Client Interview dated [July] 2017, indicated in the written record of the interview. This information was put to the applicant in the Tribunal hearing pursuant to the procedural requirements of s.424AA of the Act. The Tribunal indicated that this information is relevant because it was inconsistent with claims now that the applicant faces harm in Nepal based on a gang looking for him and seeking to harm him, being divorced, or due to mental health issues. In response, the applicant indicated that he did not feel like revealing these reasons when he was detained as he was not happy to have been detained.
The Tribunal does not accept this as explaining why the applicant would not reveal in this interview significant reasons why he could not return to Nepal, particularly if they related to his safety. Even if the applicant did not know of the option of a Protection visa, the Tribunal considers that being asked if there were reasons why he could not return to Nepal would alert the applicant to the fact that the Australian government may be reluctant to remove the applicant to Nepal if there were significant reasons, particularly relating to his safety.
Secondly, the applicant’s account of a gang searching for him approximately 10 years after an encounter in which he was threatened and harmed was implausible to the Tribunal, in the circumstances described by the applicant.
In the Tribunal hearing, the applicant indicated that the adverse encounter took place in 2007 or 2008. He indicated that he, and a group of fellow drug users, were told by this gang to stop their activities and their occupation of a particular area in Kathmandu, and that led to the encounter. The applicant indicated that he was punched. The applicant indicated that, although there were some other subsequent occasions in which he encountered these individuals, he was never again physically harmed in the, at least, one year period until he left for Australia. The applicant indicated that this gang continues to wish to extract revenge on him because they were not able to occupy the space that the applicant and his friends were occupying.
The Tribunal put to the applicant that it seemed highly implausible that one incident, around 10 years ago, would create issues for the applicant on return to Nepal today. The nature of the incident described did not make it likely that this gang would be seeking to pursue the matter many years later. In response, the applicant indicated that he was attacked in [a] club in [Australian City 1]. The applicant indicated that the person who attacked him could have been linked to the gang in Nepal. When further questioned on this incident by the Tribunal, the applicant agreed that this was mere speculation.
Considering all of the evidence, the Tribunal does not consider it plausible that a territorial dispute between gangs around 10 years ago, resulting in one incidents of physical harm suffered by the applicant, would be of such significance that individuals involved would be pursuing the applicant 10 years later. That also takes into account that the applicant never again suffered physical harm from this gang in the year or so following the incident until he left for Australia, notwithstanding that there were encounters with this gang. The Tribunal considers it entirely speculative, bordering on fanciful, that the applicant being assaulted in [a] club in [Australian City 1] has any links to this issue, in the absence of the applicant providing any meaningful evidence of such a link.
Thirdly, the applicant’s return to Nepal in 2014 for about one month is not consistent with him claiming to fear serious or significant harm on return to Nepal for the reasons claimed. In the Tribunal hearing, the applicant indicated that he stayed with his mother and spent a few days trekking in the Himalayas. He indicated that he caught up with friends. He indicated that he had no difficulties in this period.

It is not consistent with the applicant fearing harm from the gang who he indicates are pursuing him that he would return to Kathmandu. The applicant provided no meaningful explanation to this issue in the hearing.
Fourthly, the applicant did not repeat in the hearing written claims of discrimination and adverse treatment on return to Nepal in 2014 based on being divorced. Further, independent information before the Tribunal does not support the claim that the applicant would be subject to significant discrimination or adverse treatment based on being divorced, as a male.
In the Tribunal hearing the applicant indicated that he had no problems when he returned to Nepal in 2014. He specifically indicated that there was no adverse comment or mistreatment from his mother. These claims are in contrast to the written claims in which the applicant indicated that he was socially ostracised on this visit due to being divorced and that he believes his family members will mistreat him due to being divorced.
In response, in the hearing, the applicant indicated that he speculates that his family will mistreat him.
The Tribunal considers that, if the applicant’s family or friends were going to mistreat him based on being divorced, then they would have done so on his visit in 2014. Further, the failure of the applicant in hearing to reiterate written claims of adverse treatment on his visit in 2014 due to being divorced is undermining of the truth of those claims.
Further, the independent information contained in this decision indicates that, generally speaking, it is the wife in the relationship who is blamed for divorce by society and suffers problems, rather than the man. This is consistent with Nepal being a patriarchal society. This information was put to the applicant in hearing. The applicant maintained that he would be discriminated against.
The Tribunal does not consider that the applicant’s claims that he was, or would be, subject to significant ostracism or discrimination based on being divorced is consistent with independent information.
Fifthly, there is no medical evidence to support claims that the applicant suffers from any significant mental health issues. In the hearing, the applicant indicated that, prior to his recent immigration detention, he had seen a psychiatrist on one occasion in 2010 relating to difficulties concerning his divorce. The applicant indicated that there was no medication prescribed or follow-up action.
The applicant referred to some consultations with a psychiatrist in [the] Detention Centre. The Tribunal asked the applicant if he had been diagnosed with any specific condition. The applicant referred vaguely to being told by the psychiatrist that he ‘had some issues’.
Whilst the Tribunal is prepared to accept that the applicant’s detention and uncertainty concerning his immigration status would be creating stress for the applicant, in the absence of supporting evidence, and considering the other credibility issues relating to the applicant, the Tribunal is not satisfied that the applicant is suffering from any significant mental health condition.
Sixthly, the delay by the applicant of many years after first arriving in Australia in applying for the Protection visa is not consistent with the applicant fearing harm based on the gang seeking to find and harm him or based on being a divorcee. The applicant claims that he came to Australia in 2009 to avoid harm from the gang. The applicant was divorced in 2010. Yet, the applicant did not apply for the Protection visa until many years later in 2017, on the expiration of his [temporary] visa.
In response in the hearing, the applicant indicated that he wanted to make his way on his own, and did not want to be a refugee. The Tribunal does not consider that this explains why the applicant would not have acted to obtain the protection of the Australian government, and a permanent right to reside in Australia, if he feared persecution or significant harm based on being harmed by a gang or based on being divorced.
The cumulative impact of these six credibility issues are significantly undermining of the applicant’s overall credibility and his claims for protection.
The Tribunal has taken into account the photograph of the ‘wanted’ poster of the applicant claimed to have been sent by the applicant’s brother from the Nepal. This evidence does not overcome the cumulative impact of the credibility issues, particularly the plausibility of the gang seeking to search for and harm the applicant many years after the claimed incident and the fact that the applicant indicated no fear of returning to Nepal in the Compliance Client Interview from the gang or otherwise. The poster could have been easily been created using common software by anyone.
The Tribunal is prepared to accept that there was an altercation between the applicant and a gang in 2007 or 2006. The Tribunal is not otherwise satisfied with the truth of the applicant’s claims. The Tribunal is not satisfied that this gang have been subsequently searching for the applicant or have an ongoing desire to harm him, or would harm the applicant if he returned to Nepal. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm from this gang.
The Tribunal is not satisfied that the applicant has suffered any serious or significant harm based on being divorced on his return visits to Nepal. The Tribunal is not satisfied that the applicant has been ostracised or subject to adverse treatment by family, friends or acquaintances based on being divorced. The Tribunal is not satisfied that the applicant has been, or would be considered, impotent or gay because he was divorced. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in Nepal based on being divorced.
The Tribunal is not satisfied that the applicant suffers from any significant mental health conditions that would lead to him facing a real chance of serious or significant harm on return to Nepal due to inferior medical treatment or for any other reason. In any event, the Tribunal would not be satisfied that inferior medical treatment would result in serious harm for a refugee criterion reason, or would meet the definition of significant harm, requiring as it does an intention to cause harm in relation to defined categories of cruel and inhuman treatment or punishment, and degrading treatment or punishment.
In summary, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed, or for any other reasons.
The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for any reason set out in s.5J(1) of the Act.
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 chance that he will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2147

31 October 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction