1819140 (Refugee)

[2022] AATA 5137

1819140 (Refugee) [2022] AATA 5137 (9 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819140

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Angela Cranston

DATE:9 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 9 December 2022 at 15.03pm

CATCHWORDS  
REFUGEE – protection visa – Sierra Leone – race – Temne – political opinion – All Peoples Congress (APC) supporter – fear of Sierra Leone Peoples Party (SLPP) – credibility concerns – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65 
Migration Regulations 1994 (Cth), Schedule 2 

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 2 May 2018. In her application, the applicant claimed the following:

I am afraid to return to Sierra Leone because I fear SLPP gangs will harm or kill me. I campaigned for the All Peoples Congress (APC) against the Sierra Leone Peoples Party (SLPP). In March 2018 the SLPP won the election and have been violently attacking APC campaigners. I am a well known [occupation] and Temne so I have been targeted. They have already attacked my finacee and threatened my son.

My name is [the applicant]. I was born [date]. I am a Sierra Leonean. I am a Christian by religion, I am applying for a protection visa in order for me not to be harmed in my above stated country.

I left Sierra Leone [in] March 2018 to participate in [event] as an [occupation].

During my stay at the [event] the presidential result of our country was announced and the main opposition was the victor. In this change there have been a great political violence going on in the country in which the ruling party is terrorising the supporters and leaders of the former government. I as a [occupation] was in support of the past government and I was also in their campaign team before I travelled. If I go back the Sierra Leone the thugs of the ruling party will attack me tortured and rape me because they are all over the country and there is no were that I will re-locate to that country that they will not find out and this terrorising has taken a tribal balance in which these of us who are Temne’s have been badly tortured, some sent to prison and some even get killed. 

And the authorities do not give any protection because they are in support of it and if I go back they will not protect me and these thugs are all over the country searching for those of us that were recognised during the campaign period.

During my stay in Sierra Leone before I travelled to [event],I was threatened by the opposition side that are now the ruling government that if they came to power, they will hunt me down, ruin my life and that of my family in which they do attack my house [in] April 2018, tortured my fiancé and even threatened to kill my son if they do not tell my present location. They are everywhere in the country searching for me and if I go back they will capture me and I will be seriously dealt with even murder me secretly and the president in his independent speech also made it clear that the country is not safe and that there has been some genocide practice and this situation is getting worse by the day so this is my reason for applying for protection visa so that I will not face torture, rape or been killed.

3.    Also provided were photos that appear to show wounds.

4.    The delegate refused to grant the visa and the applicant applied for review.

5.    The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.

6.    The applicant stated that she had completed her own protection visa application and it was correct.

7.    The applicant stated she was living in Freetown before she came to Australia in March 2018. Her ex-fiance remained in Sierra Leone

8.    The applicant stated she left Sierra Leone and came to Australia for [event], that before she came to Australia nothing bad had happened to her but after she was in Australia she started to have threatening remarks from political thugs. When asked if there were any threats when she was in Sierra Leone she said during the campaign they threatened her and said that when they won they would come for her. She also said that in Sierra Leone she was campaigning and going from house to house and the thugs said if they won they would come for her. When the Tribunal asked for specifics, she said she was in [working] during the election campaign, the thugs came to her directly when she was in a house where she was campaigning and said we are coming for you after the election and that this happened a month before the election in 2018. When asked what happened she said 5 two thugs came and threatened her. When asked what she did as a result she said she told them we know we will win. She did not go to the police because the police did not recognise those things. Nothing else happened while she was in Sierra Leone.

9.     The applicant said she could not return to Sierra Leone because they were looking for her and had gone to her house in April 2018 after the election. When asked how she knew that she said she had messages from social media and she could not contact her family members because they were scared that the thugs would find out about her. The Tribunal put to her that she came to Australia for [event] so if people came looking for in April 2018 everyone would know where she was because it was public information. She said not necessarily. When asked why she needed the secrecy and people could not contact her, she stated they were threatened. The Tribunal put to her it was finding it difficult to understand why she learnt from social media and she said the family was afraid to contact her because they did not want to her to return because she would be harmed and that if people came to her house her family would want to warn her. She said they were afraid that thus would learn where the applicant was. The Tribunal put to her that when the department talked to her about the photos relating to the alleged attack she said that it happened [in] February 2018 and that she was at home when her fiancé was hurt and her child was attacked. She said she was in Australia and it happened in April 2018.

1. The Tribunal asked about the APC and she said it was a political party she loved because they were good people and they helped the country as a whole. She said she loved this party and decided to help and tell people to vote. She then stated she was not into the party in that she could say everything about the party because she was not a member but she was a supporter and it was a good party and when they were in power the country benefited. When asked how many APC supporters there were in Sierra Leone, she did not know but then said about 85 to 95% of the country supported the APC and it had the majority of supporters.

2. The applicant stated she campaigned for the APC for two weeks which involvesd going to houses and talking to people.  She said she went to more than 60 houses during the two weeks she was [working] in both the morning and the afternoon and agreed she was very busy. When asked what the election results were after the second round she stated she could not remember. When asked how many people voted for the APC she said she did not know. When asked how close the vote for the president was she said it was close but could not remember how close. She knew the next election was in 2023 but did not know that it had been announced for 24 June.

3. The Tribunal asked why the SLPP would attack her home if they won. She stated they meant it when they told her they would come for her. The Tribunal put to her it had not read anything that suggested that anyone with her profile would be targeted. She said she was not sure why it was not in the media because it happened. The Tribunal put to her the US State Department Report said that the 2018 presidential election was regarded by most observers as free and fair and unlike previous years there was no reports of political violence among competing parties. The Tribunal put to her that the APC candidate Samura Kamara obtained 48.2% of the vote which suggested that maybe half of the country and not 90% of the people supported the APC. The Tribunal also put to her that she did not appear to know much about the APC, it did not appear to the Tribunal that she had that much interest in politics.  The Tribunal put to her that she was in a country where half the population supported the APC, she was not a member, and even if it accepted that she knocked on houses, the Tribunal may not accept that someone with her profile was targeted in the manner she described. She said she heard everything from social media, they had attacked her family and her family could not contact her because they were worried the thugs would work out where she was.

4. After discussion, the applicant indicated that she did not want the Tribunal to talk to any of her nominated witnesses.

5. The Tribunal put to her that it was difficult to accept that what she said was true given that she did not seem to know much about the APC, that is she told the Department when they asked that they did good work and they supported [occupation]s but that was all she knew,  she did not know the election results, she did not know when the next presidential election was to be held and the Tribunal may struggle to accept that she did campaign the APC and even if it found she did, the Tribunal may find it hard to accept someone with her supporter profile would be targeted in the manner she described.  The Tribunal also put to her that it may find that she initially told the Department that she was in Sierra Leone when her fiancé was harmed and her child was threatened [in] February 2018 and that she subsequently changed that evidence during the interview and said it was in April 2018. The Tribunal also put to her that it may find it difficult to accept that her family would not contact her after such an incident because they were worried that the thugs would then discover where she was even though she was in Australia for [event] and a simple Google search would have revealed that.

6. She said she had always said the [April] and had never changed it. She also said she did not have any reason to lie. She said she tried to contact her family but had been unable to do so and had obtained her information elsewhere.  The Tribunal put to her that there may have been some violence, however it was struggling to accept that there was the level of violence she alleged.

7. She also stated her life was not safe in Sierra Leone because she was an APC supporter but there were no other reasons why she could not return.

8. Following the hearing, the Tribunal sent the following and asked for any country information that supported her claims:

At Departmental interview on 17 March 2018 where a Krio interpreter was used it is recorded that the following conversation occurred:
Q. (referring to the photos lodged with the protection visa application) Who are these?
A. My fiancé
Q. When were these photos taken?
A. [Date] February 2018
Q. What happened?
A. They attacked him
Q. Who attacked your fiancé?
A. The thugs in our country. The SLPP thugs
Q. Do you know what happened?
A. I was at home when we were attacked and my fiancé was hurt and my child was
threatened because I was supporting the APC and I am a [occupation]….
Q. Do you have contact with your fiancé?
A. Since the attack no
Q. When was he attacked?
A. On [Date] April

This is relevant because the Tribunal may find that your evidence in relation to when
your fiancé was allegedly harmed and if you were there has changed. If the Tribunal
finds this, then subject to your comments it would affirm the decision under review.

At Departmental interview on 17 March 2018, it is recorded that the following
conversation occurred:
Q. Tell me what you know about this party?
A. The APC is a good party…
Q. Tell me about the APC party?
A. I cannot tell you I don’t know so deep about it because I am just a supporter and
they help people a lot they help with the [occupation]s they support us, I’m just a supporter.
Q. Can you tell me about their policies do you know any of their policies of the APC
their policies or their ideas… What they believe in and what they try to do?
A. The APC party believes in good work they believe in good work, they like someone
who is hard-working.
Q. How are they different from the SLPP, what is different about them?
A. The APC they support a lot if you need help they will help you and because I am an
[occupation] they have helped me in [my field of work].
This is relevant because the Tribunal may find that your knowledge of the APC as
displayed at departmental interview and hearing is not consistent with your alleged
political profile. If the Tribunal finds this, then subject to your comments it would affirm the decision under review.

1. The Tribunal received the following response on 29 November 2022:

Please read page 3 of my protection visa records from my interview on the 17 May 2018 where I said on [date] of April 2008 in my house got attacked by the (SLPP) thugs and I was in Australia already by then. And as of the moment there’s another fight going on in the parliamentary house in Sierra Leone. That’s to show that the political fight will not stop in my life is at risk me going back there the country is not safe place. Protect here so my life will be in good hands.

1. The Tribunal also received the following:

I told the Immigration on the 17 May 2018 and the Administrative Appeals Tribunal on the 15 November 2022 that I am a supporter of the All Peoples Congress Party (APC) in Sierra Leone.

I still stand on my words that I campaign for the APC Party for the 2018 election during my [preparation] for [event] 2018 and because I am an [occupation] and I can influence a lot of people to vote, so I got threatening by the Sierra Leone People’s Party (SLPP) thugs while I was doing the campaign from house to house after my [work]. They keep threatening me saying they will come for me after the election because they would win but I keep telling them the (thugs) that they can’t because I believe my party will win. I was in Australia when they call the results for the election, and the SLPP thugs went to my house in Sierra Leone [in] April 2018 after the result has being announced as they promise to do before the election but unfortunately I was not there by then and the thugs end up attacking my fiancé and threatened to hurt my son if they don’t see me or get hold of me. By that time my family couldn’t contact me because of fear of being tracked /tapped so I got the information from the neighbours, I was so worry and I tried to contact them the next day but I could not get through them.

Like I said I don’t know too deep about the party but I liked the party (APC) and I believed that they have done a lot of good things and they have help me in my career as an [occupation] to pursuit my dreams and even now that they have done a lot of good things and they have help me in my career as an [occupation] to pursuit my dreams and even now that they are not in power they are still doing great things in the country and helping out other [occupation].

When the (SLPP) thugs threatened me when I was doing the campaign on 2018 during my [work], I couldn’t go to the police because the police would not do anything about that. In Sierra Leone the police only stand for where they can get something from they don’t care about how the people feel or even have respect for women or children. But I told some of the (APC) members and some of the [occupation]s that were not present where the treats was made so they can know but another [occupation] were there and they see and heard everything. The different between the (APC) and the SLPP is that the APC is always for the people and the country as a whole. While the SLPP do things for themselves and their family. See what happened on August in Sierra Leone innocent people lose their life, mothers lose their children while children loses their parents. The country is no longer safe. That’s why I am still asking for protection in Australia because if I go back my life would be in danger. I will get hold by those (SLPP) thugs and I will get harm and another election is coming again next year, they would be waiting to harm and kill a lot of innocent supporter and if I go back I wont be excluded. My kids are there suffering and the country is not safe for them either and I want to stay in Australia so I can have a better life for myself and my kids because I want the best for them in life.

That would only happen if I get protected here and make a better future for me and my kids. Lately I have being struggling with my health too and having somehow of depression, if not for the good medical facilities here I should have not survived. My life is not safe in Sierra Leone. Please, I want to be protected. Even last week there was another fight in the parliament house in Sierra Leone fighting each other because of the right decision opposition party APC wanted to take. This fight could never stop so please I am still asking for protection here in Australia for me to live long without getting killed or harmed by those SLPP thugs.

1. Also provided was a letter from [Mr A] of the “All People Congress Motto: Action Progress Commttxent” dated [in] November 2022 stating the applicant participated actively in the 2018 presidential and parliamentary elections campaign in constituency [number], in the [specified] part of Freetown, Sierra Leone, that on [date] April 2018 the Sierra Leone People’s party supporters attacked her home and injured her fiancé.

Country Information

1. According to BTI 2020 (bti-project.org)

General elections were held in Sierra Leone in March 2018 to elect the president, parliament and local councils. Incumbent President Ernest Bai Koroma was constitutionally ineligible to run again, after having served two terms. Neither the candidate from the All People’s Congress (APC), Samura Kamara, nor the candidate from the Sierra Leone People’s Party (SLPP), Julius Maada Bio, received the number of votes required to win the presidency in the first round. In the second round, the opposition leader Bio won by a slight margin, receiving 51.8% of the votes against 48.2% for the APC candidate Kamara. However, the APC took the majority of seats in the parliament. The election was deemed “free and fair” by international observers, and violence between supporters of the two parties remained on a low level. The transition of power was overall smooth and formally strengthened democratic procedures. In mobilizing the electorate, however, both parties resorted to exploiting existing ethno-regional divides within the country. The stronghold of the SLPP lies historically in the south with the Mende and the Limba, while the APC relies mainly on the Temne of the north. As in the past, political mass support was generated by accentuating ethnicity rather than presenting competing political visions and programs. This resulted in the deepening of societal antagonisms and contravened the peace consolidation processes.

1. According to Sierra Leone announces date for 2023 presidential elections -Xinhua (news.cn), the Electoral Commission of Sierra Leone has declared June 24 as the official date for the country's 2023 presidential elections.

1. According to numerous web pages and newspaper reports, the applicant participated in [event. Details of the applicant’s participation redacted.]

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee definition reasons in Sierra Leone and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of their being removed from Australia to Sierra Leone, there is a real risk that she will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In her protection visa application, the applicant stated that she feared returning to Sierra Leone because she feared SLPP gangs who would harm or kill her and that she had campaigned for the APC. She also stated that in March 2018 the SLPP won the election and had been violently attacking APC campaigners and that because she was a well-known [occupation] and Temne she had been targeted and they had already attacked her fiancé and threatened her son.  She also stated that before she travelled to Australia and while she was in Sierra Leone she was threatened by the opposition, that they attacked her house on [date] April 2018 and tortured her fiancé and threatened to kill her son if they did not tell her present location, that they were everywhere in the country searching for her and that if she returned she would be captured and seriously dealt with.  

4. However, and as indicated to the applicant at hearing, the Tribunal needs to consider whether it accepts that the applicant did campaign for the APC and whether she and her family have been targeted for the reasons claimed.

5. At departmental interview, the applicant displayed little knowledge about the APC, that is she stated it was a good party but then said she didn’t know so deep about it because she was just a supporter and they helped people a lot and they helped the [occupation]s. In addition, when asked about their policies or their ideas and what they believed in and what they tried to do, she stated the APC party believed in good work and liked someone who was hard-working and when asked how they were different from the SLPP, said they support a lot if you need help, they will help you and because she was an [occupation] they helped her in [her field of work]. At hearing, the applicant stated that the APC were good people and helped the country as a whole, but was not into the party in that she could not say everything about the party because she was not a member and only a supporter. She was also unable to provide accurate evidence about how many Sierra Leoneans supported the APC, could not remember the results of the presidential election after the second round but was able to indicate that it was close and knew that the next election was to be held in 2023 but did not know the actual date.  Post hearing, she acknowledged that she did not know “too deep” about the party but liked it because they had done a lot of good things and had helped her in her career and helped other [occupation]s and that the difference between the APC and the SLPP was that the APC was always for the people and the country as a whole whereas the SLPP did things for themselves and their family. She also stated that because she was an [occupation], she could influence a lot of people to vote.

6. The Tribunal finds that the applicant’s minimalist knowledge and simplistic answers in relation to the APC as displayed at departmental interview and hearing are not consistent with her alleged active campaigning political profile. Neither does her lack of knowledge as to when the next Presidential election is to be held in 2023 persuade the Tribunal that she has much interest in Sierra Leonean politics. Neither does the Tribunal find the applicant’s evidence about the timing of her alleged campaigning convincing, that is she stated she allegedly campaigned for two weeks in the month before the election by going to more than 60 houses at the same time she said she was [preparing] twice daily for [event] and was presumably focused on that endeavour.

7. The Tribunal also finds her evidence at hearing in relation to her alleged campaigning was simplistic, repetitive, and lacked detail indicative of events that have occurred.

8. In addition, the Tribunal finds that the applicant’s evidence in relation to the alleged consequences of her campaigning has changed, that is based on the oral recording of the Departmental interview the Tribunal finds the applicant initially stated at Departmental interview that photos relating to the SLPP attack on her fiancé were taken on 8 February 2018 (which was when she was in Sierra Leone), that she was at home when ‘we’ were attacked and her fiancé was hurt and her child was threatened because she was supporting the APC however she subsequently changed that evidence at the Departmental interview and said the attack occurred on [date] April (when she was in Australia). When this was put to the applicant at hearing, she stated that she had always said that the events occurred on the [date] April however the oral recording of the Departmental interview suggests otherwise. Although after hearing the applicant referred to the Department’s written decision to submit that she consistently stated [date] April 2018, given the oral recording, the Tribunal does not accept that submission.  In addition, the applicant’s suggestion that her family were unwilling to contact her after the alleged attack because they were afraid to let people know where she was even though she was an [occupation] competing in [event] is unconvincing given the publicity surrounding [event] and its [occupation]s, that is if people wanted to know the applicant’s location, a simple google search would have serviced.

9. In reaching these conclusions, the Tribunal has considered the letter from [Mr A] which contains grammatical errors. The letter said that [Mr A] is part of the All Peoples Congress and that the applicant participated in the 2018 campaign and her home was attacked on [date] April 2018 however given the Tribunal’s articulated concerns, it is not persuaded that this letter reflects the truth.  The Tribunal has also considered the photos that appear to show wounds, however given its overall concerns it is not persuaded that these photos are evidence of any alleged attack.  

10. In sum, the Tribunal does not accept that the applicant’s claims are credible or that she used her profile as an [occupation] to campaign for the APC, nor that she nor her family were targeted as a result nor that they were targeted or suffered persecution for any other reason including that the applicant was Temne. While the Tribunal accepts the applicant may be an APC supporter, the country information before the Tribunal does not support the applicant’s claims that someone with her APC supporter profile was targeted during or after the 2018 election campaign.  

11. Neither does the Tribunal accept the applicant’s claim that she will be targeted in future for any reasons including that she remained in Australia after [event] nor that the country is not safe.  While the applicant first claimed post hearing that she has signs of depression and if not for the good medical facilities in Australia would not have survived, there is no medical evidence in support of this and the Tribunal is not satisfied that based on this assertion or for any other reason there is a real chance of serious harm to her in the reasonably foreseeable future in Sierra Leone.  

12. 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).

13. 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).

14. The Tribunal rejects the applicant’s claims that she has used her profile as an [occupation] to campaign for the APC nor that she or her family suffered significant harm in Sierra Leone as a result nor that they were targeted or suffered significant harm for any other reason including that she may be an APC supporter or that the applicant is Temne. Neither does the Tribunal accept that the applicant will be targeted in future for any reasons including that she remained in Australia after [event] nor that the country is not safe. While the applicant has claimed that she wants to remain in Australia so that she can have a better life for herself and her children and that she has signs of depression and if not for the good medical facilities in Australia would not have survived, there is no medical evidence in support of this and the Tribunal is not satisfied that based on this assertion there is a real risk of significant harm to her on return to Sierra Leone or for any other reason.

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

2. 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

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

Angela Cranston
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.

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1. Protection visas – criteria provided for by this Act

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1. 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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