1811483 (Refugee)
[2024] AATA 3042
•24 April 2024
1811483 (Refugee) [2024] AATA 3042 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1811483
COUNTRY OF REFERENCE: Nepal
MEMBER:Alison Murphy
DATE:24 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 24 April 2024 at 2:28pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – joined All Nepal National Free Students Union (ANNFSU) – sister organisation of Nepal Communist Party (Unified Marxist and Leninist) (CPN (UML) – elected President of the Free Students Union – threats from extremist Terai groups – Australian citizen child – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a family group, all citizens of Nepal. The first named applicant is a [age]‑year‑old male (the applicant husband). The second named applicant is a [age]‑year‑old female who is married to the applicant husband (the applicant wife) and the third named applicant is their 10-year-old daughter. They applied for the visas on 4 September 2017 and the delegate refused to grant the visas on the basis that they are not owed protection by Australia.
The applicant husband first appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. At that hearing, he sought an adjournment on the basis that the applicant wife was sick and they wished to obtain migration advice. The Tribunal granted the adjournment.
The applicant husband next appeared before the Tribunal on 5 April 2024 to give evidence and present arguments. At hearing he told the Tribunal that the applicant wife was aware of the hearing but had stayed home to look after their children, that they did not wish the hearing to be further adjourned and that the applicant wife was happy for her husband to speak to the Tribunal for both of them. The applicant husband stated that he had consulted a migration agent and they had decided that the agent would not attend the hearing.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As at the date of the Tribunal’s decision, the relevant report is DFAT Country Information Report: Nepal dated 1 March 2024. The Tribunal has also had regard to DFAT’s earlier Country Information Report: Nepal dated 1 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether any of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
There is no dispute that the applicant husband and the applicant wife are Nepalese citizens and copies of their passports are contained on the Departmental file. The Tribunal finds they are citizens of Nepal and has assessed their claims against Nepal as the country of nationality and the receiving country.
The applicant child was a Nepalese citizen at the time the visa application was lodged and a copy of her Nepalese passport is contained on the Department’s file. The applicant husband gave evidence that she had since become an Australian citizen as a consequence of being resident here for a period of 10 years since her birth. The Department’s movement and ICSE records indicate that the Department now recognises her as an Australian citizen and the Tribunal finds accordingly.
The applicants’ personal backgrounds
The applicant husband is a [age]-year-old male born in [Rupandehi] in Nepal. In the visa application he states he lived at the same address from birth until December 2007 when he travelled to Australia for the first time aged [age]. He grew up in a household comprising his parents and brother. His father passed away in 2010 and his mother[still] lives in the family [home]. The applicant’s brother is an [occupation].
The applicant wife is a [age]-year-old female born [in] Nepal. In the visa application she states she lived at the same address from birth until October 2008 when she travelled to Australia.
The applicants are of Hindu religion.
The delegate’s decision records that the applicant husband first arrived in Australia in December 2007 and the applicant wife arrived in October 2008, each of them holding a student visa. The applicant husband gave evidence that he and the applicant wife had been in a long-term relationship prior to their arrival in Australia. They were legally married in Australia in December 2008 and held a religious marriage ceremony in front of family and friends [in] December 2011 [in] Victoria.
The applicant husband departed Australia for a week in June 2009, three weeks in June 2010 and three weeks in July 2010. At hearing the applicant husband gave evidence that he returned to Nepal on each of these occasions because his father was very sick.
The applicant child was born in Australia in [2013] and the family returned to Nepal in July/August 2014 for their daughter’s rice-weaning ceremony and a ceremony to welcome the applicant wife into the applicant husband’s family home.
The applicant husband and wife were granted further student visas, the last of which ceased on 18 July 2015. They remained unlawfully in Australia until they lodged the protection visa application in September 2017 and were granted a bridging visa in October 2017.
The applicant husband and wife had a son[on date]. That child was born after the protection visa application was refused by the delegate and for that reason he is not included in the review application.
In a letter to the Tribunal shortly before the hearing and in his oral evidence at hearing, the applicant husband stated that he suffered from alcoholism between approximately 2015 and 2023. He stopped drinking in 2022 but continued to experience seizures related to alcohol and entered rehabilitation in 2023. He was treated with medication to stop cravings as well as an anti-seizure medication which he continues to take.
The Tribunal accepts the above matters to be true.
The applicants’ claims for protection
In the protection visa application, the applicant stated that after finishing school, he went to the [College 1] to study a Bachelor [degree], but due to unavoidable circumstances he didn’t complete that qualification. However, during his studies he joined the All Nepal National Free Students Union (ANNFSU), a leading student organisation working for the rights of students and the sister organisation of the Nepal Communist Party (Unified Marxist and Leninist) (CPN (UML)), which advocates unity, patriarchy and self-reliance among Nepalese citizens.
He claims he was elected the President of the Free Students Union at [College 1] for two years, before he went on to work as a district member of the same organisation in 2004. During that time he joined [Company 1], which he describes as [deleted]. He states he was passionate about this work and completed four successful years in the profession.
The applicant husband claims that he left Nepal to pursue his education, but his circumstances have since changed and he faces threats from extremist Terai groups in Nepal.
Shortly before the hearing the applicant provided a written statement to the Tribunal elaborating on his claims and his current circumstances. At hearing the applicant gave evidence that was materially consistent with both his written claims and statements at interview with the delegate. The Tribunal considers him to be a credible witness and accepts his account of events in Nepal as follows:
·After finishing school, he attended the [College 1] to study a Bachelor [degree], travelling to Australia before he completed that course. At the time he came to Australia, he still had approximately six months left to complete his Bachelor [degree];
·During his studies he joined the ANNFSU, a student organisation working for the rights of students and affiliated with the CPN (UML);
·He was elected the President of the ANNFSU at [College 1] for two years in 2004 and his two-year term was extended to four years after the Union’s elections were delayed. He was also appointed district member of ANNFSU for two years and worked for [Company 1], finishing up there about mid-2007. At hearing the applicant clarified that he was employed [for] that [company]. He left Nepal for Australia before the end of his term as President of the ANNFSU at [College 1];
·At the time the applicant came to Australia in December 2007, he intended to complete his studies and return to Nepal with his (now) wife and family;
·The applicant returned to Nepal in 2009 and twice in 2010 because his father was suffering from [medical condition] and passed away during his last visit. He returned again in 2014 for the rice-weaning ceremony of his daughter and a cultural ceremony welcoming his wife to his family home;
·While in Nepal in mid-2014, he was invited by his former colleagues at [College 1] to speak on federal, state and economic viability in Nepal. As the CPN (UML) did not support the separatist demands of the Terai people, he too believed that Nepal should remain unified unlike some separatist groups active in the Terai region of Nepal. He spoke out against separatism on ethnic or cultural grounds, considering that if Nepal had to be divided it should be along geographical lines (north to south or by the river);
·After giving his talk against cultural or ethnic separatism, he received a threatening telephone call on the family’s home phone in Nepal. The caller referred to his public statement opposing separatism and told him he must withdraw his statement. The applicant didn’t take the call seriously and returned to Australia as planned;
·After returning to Australia, his brother told him that a member of the Terai Madheshi organisation had contacted him threatening to kill the applicant if they found him. At hearing he states he was not sure how many times those people contacted his brother, but he believes it was a couple or a few times, all in 2014 and early 2015. His brother tried to report the threats to the police, but a police officer told him it was not a big issue;
·Initially he didn’t take the threats seriously but over a period of months he became more fearful. In 2016, [someone] who held a similar political role with a politically aligned student organisation, Durga Tiwari, was shot and killed. The Tribunal notes that Durga Tiwari’s death was widely reported in the media and relevant articles are referenced in the delegate’s decision;
·The applicant started drinking heavily and by 2018 had descended into alcoholism. He suffered seizures related to alcohol and remembers little of the events between 2018 and the time he stopped drinking in 2022;
·At hearing the applicant gave evidence that neither he nor his family have received any further threats since 2014/early 2015.
The Tribunal accepts each of the above matters to be true.
Risk of harm on return to Nepal
The applicant claims that if he returns to Nepal, he will face harm from Terai separatists and others because of his activities for the ANNFSU and CPN (UML). At hearing he stated that he had no problem with his country, just the political goons that threatened him.
The Tribunal has accepted that [Durga] Tiwari, the chairman of the Youth Association Nepal for Rupandehi, also affiliated with the CPN (UML), was shot and killed in December 2016 as claimed. However, as noted in the delegate’s decision, media reports do not indicate he was killed by separatists or because of his political opinion, rather they report he was killed by an organised criminal gang due to a personal vendetta against him by a former colleague.[1] For these reasons the Tribunal does not accept Durga Tiwari’s death has any bearing on the applicant’s risk of harm on return to Nepal.
[1] Articles cited at page 8 of the delegate’s decision: UML youth leader shot dead in Rupandehi – The Himalayan Times – Nepal's No.1 English Daily Newspaper | Nepal News, Latest Politics, Business, World, Sports, Entertainment, Travel, Life Style News; Eight suspects arrested in Tiwari murder case (kathmandupost.com).
In assessing the applicant’s claims to fear harm on return to Nepal for reasons of his political opinion and his past activities with the ANNFSU or CPN (UML), the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward-looking test. As discussed with the applicant at hearing, there have been very significant changes to the political and security environment in Nepal in the 10 years since he was last there.
Firstly, a new Constitution came into effect in 2015, reportedly marking a significant shift in Nepali politics and creating seven provinces based on ethno-linguistic identity and economic viability.[2] The new Constitution came into effect after the four major parties agreed to negotiations about the contents of the new Constitution and 85% of the Constituent Assembly lawmakers approved the new Constitution.[3] National elections in 2017 saw landslide results in favour of the Left Alliance comprised of the CPN (UML) and the CPN (Maoist Centre) parties and a coalition of those two parties won elections in November 2022.[4] At hearing I discussed with the applicant that it appeared the political party with which he was affiliated is now in government in Nepal. The applicant agreed that was the case and said his association with that party was in the past.
[2] DFAT Country Information Report: Nepal, 1 March 2024 at 2.33–2.35.
[3] DFAT Country Information Report: Nepal, 1 March 2019 at 2.5; 2.6.
[4] DFAT Country Information Report: Nepal, 1 March 2024 at 2.33–2.35.
Secondly, the Terai independence movement has reportedly dissipated in recent years, with the prominent secessionist leader Chandra Kant Raut signing a deal with the Nepalese Communist Party in 2019, pledging to honour the ‘sovereignty’ and ‘territorial integrity’ of the country. Chandra Kant Raut denounced violence and agreed to join mainstream politics and formed the Janamat Party, formerly known as the Alliance for Independent Madhesh. He was elected a member of parliament in the 2022 elections along with 5 other members of the Janamat Party, which is now the 8th largest party in the country and forms part of the governing coalition government.[5]
[5] Nepal: CK Raut joins mainstream politics averting conflict? | News | Al Jazeera.
Thirdly, political violence has reportedly declined over the last few years while the number of peaceful protests has risen. It is reported that student unions affiliated with major political parties sometimes clash violently, but that neither professors nor students face repercussions for political speech, and peaceful campus protests are tolerated.[6]
[6] Country policy and information note: political affiliation, Nepal, November 2023 (accessible) – GOV.UK (>
When invited to comment on the above information at hearing, the applicant stated that he didn’t disagree with it but that he didn’t really know because he hadn’t read any newspapers or followed any political events in Nepal since 2018 and he has little memory of anything that occurred between 2018 and 2023 while he was affected by alcoholism. When asked if he had discussed these events with his family in Nepal he said he hadn’t, although they are aware he has sought protection and the reasons for that.
At the hearing the Tribunal also discussed with the applicant a UK Home Office Policy and Information Note for Nepal which reports that in general, leaders, members and supporters of opposition parties are not at real risk of persecution or serious harm from state actors, and it would only be in exceptional or very limited cases that an applicant would face a continuing risk of harm by virtue of being perceived to be a Maoist or at the hands of Maoists.[7] The applicant agreed with that information, saying it was a long time ago that people were at risk of harm from Maoists.
[7] Country policy and information note: political affiliation, Nepal, November 2023 (accessible) – GOV.UK ( type="1">
Given the applicant’s evidence that he had not read newspapers or followed political events in Nepal since 2018, the Tribunal sent him copies of the country information reports discussed at hearing and invited him to make further written comments on those reports after the hearing. The applicant responded to that information on 19 April 2024, confirming that he had studied the reports sent to him by the Tribunal. He stated that the political situation in Nepal was still very volatile and not as settled as it appeared on the surface, rather the newly enforced federalism, secularism and declaration of a republic (which the Tribunal understands to be a reference to the new Constitution) is still a matter of controversy and had been an issue in the street riots and demonstrations which resulted in a loss of life in the past week.
He said that while the political situation in Nepal may appear to be settled, in reality the people and activists who represented the former political notions are targeted and their safety compromised. He doesn’t feel confident in facing Nepalese society as there are implied threats and prejudice towards him. He has no confidence in Nepal’s administrative and judicial systems and believes that political mobs influenced and interfered with the bureaucracy which could not be impartial in his case. He has contacted friends and family back in Nepal and the reports they sent back were gruesome with a message of insecurity.
The applicant stated that besides these things he has adopted Australia as his second home and one of his daughters is an Australian citizen. If he has to return to Nepal as a result of the Tribunal’s decision, there will be no one to look after her and she has frequent asthma attacks and gets distressed if he is not around her. He wishes to stay and start a new life in Australia with his family.
The Tribunal has carefully considered the applicant’s comments on the country information discussed with him at the hearing. The applicant did not refer the Tribunal to any media reports or other country information to support his assertion that the political situation in Nepal remains very volatile and that people and activists who undertook political activities prior to the passing of the Constitution are targeted and their safety compromised. He makes reference to ‘gruesome’ reports he has received from family and friends, but provides no detail of the substance of these reports.
The Tribunal accepts that the applicant has built a new life in Australia and does not wish to return to Nepal. However, on the basis of the country information cited above, the Tribunal does not accept there to be a real chance that any person or group would seek to harm the applicant if he returns to Nepal, now or in the reasonably foreseeable future.
In making that assessment the Tribunal notes that 10 years have passed since the applicant undertook any political activities in Nepal. The political party with whom he was previously affiliated, CPN (UML), is now part of the governing coalition. The Terai separatist movement from whom he received threats in 2014 has dissipated, with its prominent secessionist leader Chandra Kant Raut denouncing violence and joining mainstream politics from within his newly formed Janamat Party. Chandra Kant Raut is now a member of Parliament along with 5 other members of his Janamat Party, which forms part of the governing coalition government. As well, political violence has reportedly declined in recent years and the number of peaceful protests has risen. For these reasons the Tribunal does not accept there to be a real chance the applicant will face harm from the Terai separatists who threatened him in 2014 if he returns to Nepal, or members of any other political party or group.
While the Tribunal accepts that there continue to be sporadic violent clashes between student unions affiliated with major political parties, the applicant is no longer a student and his evidence is that he no longer follows or reads about political events in Nepal. Even if that were not the case and the applicant was to return to his political activities with the ANNFSU and CPN (UML), the sporadic and occasional nature of those clashes, in the context of an overall decline in political violence in Nepal, causes the Tribunal not to accept there to be a real chance that the applicant would be harmed in such a clash. The country information cited above indicating that in general even leaders, members and supporters of opposition parties are not at real risk of persecution or serious harm from state actors and the Tribunal notes that the applicant’s former political associations were with the CPN (UML) which now forms government. For these reasons the Tribunal does not accept there to be a real chance the applicant would face harm from state actors for any reason relating to his past political activities or his political opinion in support of the CPN (UML).
For all of the above reasons the Tribunal does not accept there to be a real chance that the applicant would be harmed by any person, party or group for reasons of his political opinion if he returns to Nepal, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[8] For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm by any person or group for reasons of his political activities or political opinion if he returns to Nepal.
[8] MIAC v SZQRB [2013] FCAFC 33.
The applicant does not claim that any person or group would seek to harm him for any reason other those recounted above. It follows that he does not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. There is no suggestion that he 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 any of the criteria in s 36(2).
The applicant wife and daughter
The applicant wife did not attend the Tribunal hearings or otherwise provide any information to the Tribunal. In the visa application, she states only that she is claiming protection for the same reasons as her spouse and provides no other information. For the reasons set out above the Tribunal has accepted the applicant husband’s account of his past political activities in Nepal, but it has not accepted there to be a real chance that any person or group will seek to harm him, nor a real risk that he will be subjected to significant harm if he returns to Nepal now or in the foreseeable future.
In view of the Tribunal’s findings about the applicant husband, the Tribunal does not accept there to be a real chance that any person or group will seek to harm the applicant wife for reasons of her husband’s past political activities, nor a real risk that she will be subjected to significant harm if she returns to Nepal. It follows that she does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. As she is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, she does not satisfy any of the criteria in s 36(2).
As noted above, the third named applicant has been recognised by the Department as an Australian citizen and therefore she is not a ‘non-citizen’. As such she cannot meet the requirements of s 36(2)(a), s 36(2)(aa), s 36(2)(b) or s 36(2)(c) and she cannot be granted the protection visa.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and they cannot be granted the visas.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Alison Murphy
MemberATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Standing
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