1813234 (Refugee)

1813234 (Refugee) [2023] AATA 2310 (20 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jeri Levinsky (MARN: 0214675)
CASE NUMBER:  1813234
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Luke Hardy
DATE:20 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 April 2023 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil-speaking Muslim – fear of harm from the Bodu Bala Sena (BBS) – credibility concerns – inconsistent and far-fetched – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a Tamil-speaking Muslim citizen of Sri Lanka. He arrived in Australia on a three-month visitor visa [in] September 2016. He lodged a PV application at he end of three months on 21 December 2016. The delegate refused to grant the visa on credibility grounds on 7 May 2018. The applicant sought independent merits review and the matter was constituted to me.
The applicant appeared before the Tribunal on 14 April 2023 to give evidence and present arguments. His adviser attended the Tribunal hearing by telephone.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil- English medium.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made to the Department
[The applicant] claimed he lived in [named] Province. He claimed started a [company] in partnership with his cousin [Mr A], In December 2014. He claimed that on 16 September 2015, they rented a vehicle for two days to a man who said he was from the neighbouring village. He said that two men aged in their 30s came to pick up the car and returned it in good condition, but for a cloth hanging on the back seat that appeared to be stained with blood. If the returned it after two days that would have been as early as 17 September 2015.
[The applicant] said he asked the clients about this and was told, “That’s none of your business. And you will not talk about this matter ever again to anyone.” He claimed he said, “I think I had better talk to the police about this.” He claimed he started to go towards the office to make the phone call, whereupon one of the men pulled out a hand gun and shot at him as he started to run away. He claimed the shot missed him but that in running away he hit his head and had to be treated in a hospital in Colombo later that day. He claims he was discharged the next day and moved from his home to his aunt’s house. In a second statement he said he stayed in a series of “secret” places about which his family knew no details. He claimed his business partner ascertained that the clients with the gun were members of the sometimes notoriously violent pro-ethnic Sinhalese Buddhist nationalist group called Bodu Bala Sena (BBS).
[The applicant] claimed he tried to leave Sri Lanka for the UK but was refused a visa. He said his business partner helped to hire an agent who obtained for him a visitor visa for Australia. He claimed his partner told him never to report the matter to the police. He said he did not contact the police due to fearing the police favoured the BBS.
[The applicant] claimed that one night two men came to his door step and tried to drag him away. Apparently they failed, but detail is thin. He claimed that “Nearly after three months I was able to reach the airport secretly and reach Australia.”
[The applicant] claimed in his original PV application that he operated the [business] with his partner until September 2016 when he flew to Australia. Likewise he gave the one address for all of his time in Sri Lanka up until that departure. He departed legally on a passport under his own name.
[The applicant] submitted a copy of a medical certificate dated 17 and 18 September 2015 detailing an injury to his head caused by an “accident.”
[The applicant] later submitted material about another incident which he claimed was related to the shooting, the shooters and the BBS. He claimed that a cheque book operated by his business partner was accidentally left in a car as it was being hired out and was fraudulently used by the hirer. [The applicant] supported this claims with a purported police report by the partner who, [the applicant] claimed, believed the hirer to be with the BBS. This was the same business partner who had allegedly told [the applicant] not to report BBS matters to the police. In any event, his report is translated as follows:
… I possessed a Cheque book containing 25 pages issued by [Bank 1] [specified] branch bearing Account No. […]. My cousin [Mr A] rights with this account. This Cheque book got lost in January 2017 while it was kept in my car. I complained to the bank about this matter on 17 of January 2017. There is a pending case [number] in the [Magistrate's Court] filed by Special Crime Investigation Department I hadn't lodged an entry in police regarding the loss of this Cheque book and I need a copy of the complaint in order to submit to the court Therefore I make this complain[t]. That is all what I have to say. Read over and explained. Accepted and signed … 04.07.2017
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which includes a summary of evidence given and concerns raised for his comment. The delegate asked [the applicant] what he did with the car in the weeks following the incident and the response evidently lacked detail.
[The applicant] told the delegate that the [company] shut down following the shooting incident for five to six months whereupon his cousin re-commenced operations. That would mean it was not operational until around New Year 2015-16 but was total operational throughout 2016.
The delegate asked [the applicant] about the matter of the cheque book. [The applicant] said that the cheque book was issued jointly in the names of his cousin and himself, due to their joint interest in the business. However, this is contradicted in the purported police statement in which [the applicant] in not referred to as a joint account holder or signatory and another person is instead.
[The applicant] told the delegate that as a result of having misplaced a cheque book, he and his cousin had a court case pending against them. He explained that the car hirer found the cheque book and used it fraudulently. He said the case was actioned by disaffected payees. [The applicant] told the delegate he believed the BBS was behind both the court case and the misuse of the cheque book, but provided no evidence is provided in support of this claim.
Evidence to the Tribunal
[The applicant] submitted the medical certificate discussed above. He submitted evidence of the establishment of the [company], although a 2015 date is given for its commencement. He also submitted an attorney’s letter about his business partner being a defendant in a court matter.
Another submission is a statement from a business partner asserting that he used two friends in the Sinhalese community to help him establish on the strength of popular knowledge or hearsay that the clients who returned the car with the bloodstained rag in it were members of BBS. It is suggested in evidence these two individuals are themselves involved with the BBS.
[The applicant] submitted, along with translations, two purported civilian complaints to the police, both made in the name of and signed by his father.
The earlier of these is dated 7 November 2018, two years since [the applicant]’s PV application and six months after the delegate’s decision. It says that on the previous evening two men came to the family home asking after [the applicant] and when told he was abroad accused them of lying and threatened them using vulgar language. It says the men threatened to kill [the applicant] wherever he might be. The author says he made the statement to seek justice in the matter, but the statement is factually thin and provides no context to assist the police.
The later police statement is dated 2 April 2023, which was just about a week after [the applicant] received his Tribunal hearing invitation. This is also purportedly a statement from [the applicant]’s father. It says two men came to make death threats at the family home in 2016 whereupon [the applicant] was sent to Australia. It says the same two men came back in 2018 and 2019 and again made death threats. This adds up to three occasions on which death threats were allegedly made and after which no escalation occurred. The statement concludes thus:
We told them that our son was living in another country. They did not believe our words. Thereafter those two men did not come to our house. Further investigation in this regard is not expected. My aim in making this statement is only to obtain a copy of the complaint. That’s all I have to state.
In both the 2018 and 2023 statements, the author, [the applicant]’s father, declared to the police that he was residing with his wife and other son, [the applicant]’s younger brother. At the Tribunal hearing, [the applicant] told me is parents have lived apart for several years. He claimed at the Tribunal that the whole family used to live in [Town 1] until his mother and brother moved to [Town 2] about a year or two after he, [the applicant], came to Australia. He said his father moved on his own to [Town 3]. In the 2018 police statement, the father said that his wife and younger son were residing together with him in [Town 2]; according to the 2023 statement they are all living together, now in [Town 3]. He said his father rarely stays with his family due to work being away from home.
[The applicant] provided inconsistent evidence about when and for how long the [business] operated after the shooting incident. Whereas his PV application says he worked with the company from December 2014 through to September 2016, the month of his flight to Australia, he said in his statement of claims that the company closed its doors for five or six months after the shooting incident in September 2015. He gave me two different versions of events at the hearing. He said his name was attached to the business the whole time although he was not involved with it because he had stopped working for it in September 2015. Then, contradicting this, he said the business was shut down entirely from September 2015 until some time after he came to Australia. I questioned the discrepancy between the two different oral versions of events; [the applicant] did not resolve it. I put to him that information he was now giving me was not give to the Department and he said this was because the Department had not asked him. In fact the Department did ask him about his work and his business in the application form and, in the course of making his original PV application, he volunteered two different versions of events to the Department.
I asked [the applicant] how the closure of the business even for a few months would have affected his business partner. He did not appear to know. He said, “He’d have found another job.” When I put to him that he seemed oddly uninterested in the claimed circumstances he said he did not ask his partner about this. I put to him that it seemed odd for business partners not to discuss this in the process of freezing their company’s operations and he said it had been unnecessary for him to enquire.
[The applicant] said his partner did not resume operating the [business] until one year after he, [the applicant], came to Australia. That would have been around September 2017. He said the cheque book episode occurred one or two years after he arrived in Australia. That means the earliest it could have happened would have been September 2017 if the business was not operating until then. I asked [the applicant] why the cheque book issue was relevant to his case and he said he thought that the people who threatened him were responsible for the fraudulent use of the cheque book. I asked him if this were mere speculation on his part and he then changed his evidence: he said his business partner informed him that they were the same people, and went on to deny having said, as he had indeed said, “I thought …”
I asked [the applicant] why he thought his business partner would have continued to operate the [business] under repeated pressure from the BBS and, having expressed the assumption that his business partner would have found another job, now said his business partner had no other job. It struck me by this stage in the hearing that [the applicant] was giving ad hoc answers to questions with no consideration to consistency.
Meanwhile, it seemed to me odd in the claimed circumstances that the partner would have continued to do business with people he knew to have threatened it and at least one of its proprietors in the past. In addition, it seemed incongruous in the claimed circumstances that the BBS, given its alleged attitude to how it had been treated by the [company] on 17 September 2015 (so badly that one of its members tried to shoot [the applicant]) was still turning up and paying to rent a vehicle. In this way, [the applicant]’s story seemed far-fetched and fanciful.
I put to [the applicant] that the business partner’s complaint to police is signed and dated “04.07.2017” which argues that the cheque book fraud occurred much less than one or two years after he, [the applicant] came to Australia. In addition, the date indicates it occurred while the [business] was not operating and still several months before it re-opened. Addressing this incongruity, [the applicant] said that his previous reference to “one or two years” described when he first found out about the cheque book fraud and not when it actually occurred. I took him back to our earlier dialogue on the subject and showed him how his was not an accurate recollection of the evidence he had given. He did not resolve the discrepancy.
I took [the applicant] to the statements about the two men who helped identify the BBS as the culprits in the bloodstained rag incident. I put to him that there was no detail in the evidence as to how these people could have know precisely who had visited the [company] and on behalf of whom they had made the alleged threats. He said the two friends of his business partner had attended a BBS procession and knew people who affiliated with Buddhist monks. I put to [the applicant] that, on the evidence so far, neither of the partner’s friends had seen the faces of the men who brought the car back on 17 September 2017. In reply, he merely said they were his partner’s friends and found out. On the evidence before me it is hard to give any weight the statements about the friends suggesting BBS involvement.
We discussed the two statement to police purportedly made by [the applicant]’s father. In particular, I drew [the applicant]’s attention to his father having essentially suggested in the recent 2023 statement that the problem went away in or around 2019 to the extent that no further investigation is warranted and that he just wants a copy of the statement for the sake of having one. It seemed somewhat absurd to be making a complaint to police at the same time as advising them an investigation was unnecessary because the only purpose of the exercise was to have a transcript of its execution. I asked [the applicant] if the statement had been sought disingenuously for the purpose of creating supporting material for the claims in this case. He said it was not. He said that his father had bene frustrated that his 2018 report to police had not been followed up and that he therefore felt a genuine need to go back to the police to provoke a response in 2023. I questioned how long it had apparently taken for [the applicant]’s father to act on the purported frustration. I also drew his attention to the last sentences in the statement, which say: “Thereafter those two men did not come to our house. Further investigation in this regard is not expected. My aim in making this statement is only to obtain a copy of the complaint.”

[The applicant] mentioned a home invasion by the BBS in 2019 in which the house was vandalised and left in disarray. Opening his mobile telephone, he showed me around seven photographs of the inside of a residence in some disarray: a bedroom with the mattress lifted off the bed and onto its side; a kitchen with various pots and pans on the floor, though all sitting somewhat logically spaced and upright; and various images of untidiness such as mess on tables. [The applicant] said these photographs depicted a vandalising of his house by BBS in 2019. All the photographs appeared to be dated this last 8 March (2023). [The applicant] said the date referred only to when he uploaded then from another mobile telephone. I drew his attention to how neatly the pots and pans appeared to be laid out in at least one of the photographs and to how this did not appear to suggest vandalising of any kind; he did not have a helpful response.
I put to [the applicant] that his father’s 2023 report to police made no mention of this violence in 2019; it only referred to verbal threats made on the occasion. [The applicant] said that this was because the police left that part of his father’s report out of their transcription of it, there having been a Buddhist monk present at the time of the raid. I put to him that it seemed absurd for the police to omit references to vandalising due to the presence of a monk but not omit threats of murder made in the same company. In response, [the applicant] said he could not account for what other people omitted.
I put to [the applicant] that it was necessary to look at documents like the police statements from a range of viewpoints due to the reported[1] ease with which official documents can be fabricated in Sri Lanka.
[1] DFAT Country Information Report: Sri Lanka, 23 December 2021, paragraph 5.45: “DFAT assesses that document fraud is common in Sri Lanka …”
At the end of the hearing, I invited [the applicant]’s adviser to make closing oral submissions. In reply she said if I needed further clarification on any issue she would be happy to respond in a statement. I considered this suggestion. I indicated I did not seek further clarification in response to any of the questions I had asked. There was no further suggestion of closing or post-hearing submissions.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220 .
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
The nexus between [the applicant]’s claims and the five criteria in s.5J(1)(a) are at best nebulous. His claims are about criminal behaviour provoked in highly individual circumstances. I did not seek further clarification regarding this issue because it became clear throughout the hearing that [the applicant]’s substantive claims were manifestly inconsistent and far-fetched. I am utterly confident that he is a comprehensively unreliable witness in this matter and that his claimed encounters with the BBS are a complete invention. This being so, I give no weight to the various statements he has presented in support of his case. To highlight just one example, whereas the business partner names someone else as his co-signatory and joint account holder in the “04.07.2017” statement about the cheque book, [the applicant] claims he himself was joint account holder. These are two mutually exclusive facts. Meanwhile, [the applicant] claims he was still included in the company’s bank business whereas he elsewise claims that he removed himself from the company before he came to Australia in September 2016. I conclude that fabulations abound in this matter, to the overwhelming detriment of [the applicant]’s credibility.
I accept that [the applicant] is a Tamil-speaking Muslim and would be cognisable as such to others including ethnic Sinhalese and Buddhists. However, I am not satisfied on the evidence before me that this gives rise to a real chance of [the applicant] being persecuted, separately or cumulatively, in Sri Lanka in the reasonably foreseeable future.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Sri Lanka, either separately or cumulatively, in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Sri Lanka, I find that Sri Lanka is the receiving country in this matter.
[The applicant] claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant] protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sri Lanka, there is a real risk that [The applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2310

20 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction