1834198 (Refugee)

1834198 (Refugee) [2019] AATA 5630 (10 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834198
COUNTRY OF REFERENCE:                   Cameroon
MEMBER:Christopher Smolicz
DATE:10 December 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 December 2019 at 9:11am
CATCHWORDS
REFUGEE – protection visa – Cameroon – actual or imputed political opinion – membership and activity in opposition political party – credibility – inconsistent evidence – minor role in party – false documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Cameroon, applied for the visa on 25 November 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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 (the Department), 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.
Background
The applicant took part in a hearing before the Tribunal on 15 November 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The applicant provided the Tribunal with a copy of the delegate’s decision for the purpose of the review application.
The applicant is [age] years old. He was born in [Location], Ouest, (West Region) Cameroon. He is from the Bamileke ethnic group and is a Catholic. He speaks, reads and writes French and identifies as a Francophone. He completed his Baccalaureate studies and trained as an [occupation] in Cameroon. He married in May 2016 and his wife and three children have remained in Yaounde.
The applicant arrived in Australia [in] October 2016 as a holder of a [specified] visa [for a specified purpose in a location]. He travelled on a Republic of Cameroon passport issued [in] 2016. The passport remains valid until [2021].
Issue
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because of his actual or imputed political opinion.
Summary of substantive claims
The applicant provided the following brief information in his application for protection in support of his claims.
He is a member of the opposition political party the Social Democratic Front (SDF). He left Cameroon because he took part in an anti-government demonstration [in] February 2008. He was hit and knocked unconscious during the protest. Someone took him to hospital. He left Cameroon because the police were looking for him and wanted to kill him. The police arrested his [relative] and tortured him until he died. He tried to move around the country to avoid persecution. He fears he will be arrested and killed if he returns to Cameroon. The authorities are unable to protect him because he is a member of the SDF who took part in the 2008 demonstration.
The applicant provided copies of the following documents in support of his application:
·     SDF membership card issued [in] June 2005.
·     Correspondence in the English language dated [June] 2005 titled “Attestation of Activist” issued by the President of the SDF Electoral District of Yaounde claiming the applicant has been a member of the [specified group] since [May] 2004.
·     Document written in the French language titled “Convocation” [summons] dated [March] 2008 issued by the police General Delegation for National Security (Délégation générale à la Sûreté nationale (DGSN) requesting the applicant to present himself at the police station in the [specified] district of Yaounde on [the next day in] March 2008 to answer various charges.
The applicant took part in a protection interview with the Department. The applicant’s evidence is detailed in the delegate’s decision.
The applicant claimed he is not [a specified person] and travelled to Australia on a false visa.
The applicant said he only had copies of the documents detailed above and they were provided to him by his lawyer in Cameroon. His home was destroyed in Cameroon in 2008 so he did not have the original SDF membership card. The SDF retained their own lawyer ([Mr A]) and he sent every SDF member the convocation letter which was received from the police. The lawyer did not respond to the convocation letter and did not attend the police station because he wanted more information. When asked if there were any consequences for not attending the police station, the applicant did not respond.
He was asked who organised the protest in Douala in February 2008. He said that all members were told about it. He had been a member since 2004. Members received a notice about the event. He was asked how he received notice of the hearing. The applicant stated that the SDF meetings were held every two weeks in Yaounde where he lived and was registered. They were told at the meeting that “the people were going to change the constitution”. He said that no other group apart from the SDF attended the meeting. He was asked if any Francophones (like himself) attended the protest, he said they did not.
The applicant stated that [in] February 2008 he attended a protest in Douala, Cameroon. He was not able to explain why he travelled to Douala, which is almost four hours away from his home by car (233 km) when there were protests held in Yaounde at the same time.
The applicant said he sustained [an] injury and was hospitalised for four or five days along with other friends. He has no evidence to support his hospital stay. When asked what the protest was about he said that people in power wanted to stay in power.
Country information
The Tribunal has had regard to country information and notes that Cameroon has a multiparty system of government but the Cameroon People’s Democratic Movement has remained in power since its creation in 1985 and in practice its president Paul Biya retains the power and control of the legislation.[1]
[1] USDOS Cameroon 2018 Human Rights Report
The SDF was launched as a political party in early 1990 and was legalised in 1991 and is one of the most active opposition parties in Cameroon.
Some sources state that the party’s support is concentrated in western Cameroon (US 8 Apr. 2011, sect. 3; PHW 2011, 227; Political Parties of the World 2009, 100).
According to Political Parties of the World, the North West Province is “the most anti-[President Paul] Biya part of the Anglophone area of Cameroon” (ibid.). Freedom House describes the SDF as a party that is led by Anglophones (2011). According to International Crisis Group, the party is associated with the Anglophone minority in Cameroon, but rejected the idea of independence for the minority (25 May 2010, 18–19).
The International Crisis Group states, however, that the SDF has also obtained support in the rest of the country (25 May 2010, 18). The SDF is particularly present in the North West Province (ibid.; PHW 2011, 227; Political Parties of the World 2009, 100). Political Parties of the World states that the North West Province is the only province in which Ni John Fru Ndi, leader of the SDF, won a majority of the votes in the 2004 presidential elections (ibid.).
Radio France internationale specified that, during the October 2011 presidential elections, Ni John Fru Ndi won 54 per cent of the votes [translation] “in the Anglophone North West”, the only region in the country in which Biya did not dominate (22 Oct. 2011). It was also in that province that the party won 19 of its 22 seats in the National Assembly in 2002, and 11 of the 20 North West Province seats in 2007 (Political Parties of the World 2009, 99-100).
In relation to the February 2008 anti-government demonstrations the Tribunal has had regard to the following information, which was also referred to by the delegate:
On February 13, in the Bessengue neighbourhood the Douala GMI disrupted an SDF march to protest against constitutional reform. The police used water cannon, trucks, and tear gas to disperse demonstrators in addition to beatings with rubber batons.
During the February riots, which spread to 31 localities including Yaounde and Douala, and the subsequent government crackdown, security forces shot and killed demonstrators and rioters. While the government reported 40 persons killed, NGOs such as La Maison des Droits de l’Homme claimed that security forces killed over 100 persons.
...
On March 2, DGRE officers arrested SDF parliamentarian Jean Michel Nintcheu from Littoral Region at the Douala International Airport, while he was about to travel to France. Despite Nintcheu’s parliamentary immunity, the DGRE officers confiscated his passport but released him after an hour of detention and without any formal charges. On June 10, officials returned Nintcheu’s passport to him.[2]
Consideration of claims and evidence
[2] United States Department of State (Bureau of Democracy, Human Rights, and Labor) (25 February 2009) - 2008 Country Reports on Human Rights Practices – Cameroon) section 2b & 2d
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal finds significant inconsistencies in the applicant’s claims and finds that the applicant is not a credible witness.
The Tribunal questioned the applicant about why he travelled to Australia in October 2016.
The applicant said he was escaping from repression in Cameroon and travelled to Australia to seek asylum because the police were looking for him.
When asked to describe his role in the SDF the applicant said he was a “member” since 2004. He would help organise meetings by arranging chairs and putting up canopies to make sure people were comfortable.
The Tribunal finds it unusual that the applicant as a Francophone would be a member of the SDF which is predominantly an Anglophone party.
The applicant said he took part in a protest [in] February 2008 because the president wanted to change the constitution so that he could remain in power. He said the protest did not eventuate because the police attended as they were setting up the podium. The leader said a few words and cancelled the protest. The police used tear gas and shot real bullets and killed some protestors. He was hit in the head by the police during the scuffle, knocked unconscious and was taken to hospital for three to four days. He does not have any medical reports as evidence of his injuries.
The Tribunal asked the applicant how the police knew his name and that he was present at the demonstration. The applicant said the police attended at the SDF office and took a file with a list of all members’ names. The Tribunal notes that it is unclear how the applicant would know what documents were provided to the police and why they would seek to summons all members of the SDF.
The Tribunal asked the applicant if the police came to the hospital looking for him. The applicant said the police did not come to the hospital.
The Tribunal asked the applicant what he did after he left the hospital. He said he did not attend at the police station and went into hiding and kept a low profile. He claims the police were looking for all the SDF members.
The Tribunal has also had regard to the applicant’s evidence regarding his role in the demonstration. He claims to have helped to construct the stage. He claims he has not taken part in any other demonstrations which does not seem consistent with him being a person of interest to the authorities.
The Tribunal finds this evidence demonstrates that his role was peripheral and minor. He was not an organiser of the protest. In the circumstances it is unclear why a convocation would be issued by the DGSN seeking to speak to the applicant in circumstances where he did not come to the adverse attention of the authorities and was not identified by the police during the demonstration.
The Tribunal questioned the applicant about his SDF membership card, attestation letter and convocation. The applicant said he approached the SDF lawyer and he gave him the card and the convocation before he travelled to Australia. He claims the lawyer kept copies of all the SDF member’s documents on file. The Tribunal has considered the documents submitted by the applicant in support of his application. The Tribunal is concerned about the provenance and authenticity of the documents. The Tribunal finds it unusual that the police would serve the SDF lawyer with convocations in relation to its members rather than serving the document personally on the members of interest to their investigation. The Tribunal has also considered the applicant’s evidence and finds it unusual that he would approach the SDF lawyer in 2016 asking for a copy of his membership card issued in 2005.
The Tribunal also told the applicant it found it unusual that he would be issued with a letter of attestation of activism by the President of the SDF Electoral District of Yaounde in 2005 before he took part in any demonstrations. It also finds it unusual that the letter would be issued only in the English language in circumstances where he claims his English language skills were limited.
The applicant said the letter was written in English because the SDF was an Anglophone party. He claims the letter of attestation was issued to all members. The Tribunal notes that the SDF membership card was written in both the English and French languages and was purportedly issued on the same day ([June] 2005) as the attestation of activism letter. The Tribunal finds it unusual that the letter refers to the applicant as a “member of the [specified group] since [May] 2004” in circumstances where he was issued with the membership card in 2005. The Tribunal finds it unclear what purpose the letter would serve in circumstances where the applicant was also issued with a membership card. The Tribunal does not accept that the SDF membership card and attestation letter are genuine contemporaneous documents that were issued to the applicant in 2005.
The Tribunal finds the SDF membership card, convocation and letter of activism are false documents which were manufactured to support his claim for protection. The Tribunal raised this issue with the applicant at the hearing. In making this finding the Tribunal has had regard to country information referred to in the delegate’s decision that confirms that document fraud is prevalent in Cameroon and that fraudulent “convocations” and other types of documents can be easily obtained. The Tribunal also finds the applicant’s claim that he was wanted by the police because he was a member of the SDF who took part in one demonstration in 2008 inconsistent with evidence that he continued to live, work and have a family in Cameroon from 2008 until he departed in October 2016.
The Tribunal makes this finding based on the following evidence which was discussed with the applicant at the hearing.
First, according to his claim form 866C (question 84) he declared that he was operating a business in Yaounde from March 2005 to October 2016. At the hearing he also confirmed that he operated his own [shop] in Yaounde since 2007 and his wife was working at a local [workplace]. The Tribunal finds that the applicant’s conduct in operating a business is not consistent with his claims to be hiding from the authorities after he took part in the demonstration.
Secondly, in form 866B he declared that two of his children were born in Yaounde in [month year] and [month year] and that his family resided in the same location. The Tribunal finds that the applicant’s family life is inconsistent with a person who was in hiding. The Tribunal also notes that there is no evidence that his wife was approached or questioned by the authorities when they were unable to find the applicant after he failed to respond to the convocation.
Thirdly, the applicant confirmed at the hearing and in his application form that he was married [in] May 2016 at the local Town Hall in Yaounde. According to the delegate’s decision the ceremony was officiated by the Mayor. The Tribunal finds that the public nature of the applicant’s wedding ceremony is not consistent with a person who claims to be in hiding from the authorities.
Fourthly, the Tribunal notes the applicant was issued with a marriage certificate by the authorities of Cameroon. According to the marriage certificate he had to provide a photograph and his National Identity Card as proof of identification.

Fifthly, the Tribunal finds the applicant was issued with a Republic of Cameroon passport [in] 2016 in Yaounde by the DGSN. He was able to depart Cameroon in October 2016 without being stopped or questioned at the airport by the authorities. Country information confirms that the DGSN is the official name of the national police in Cameroon and is the same agency which issued the convocation and is the same agency said to be pursuing the applicant.[3] The Tribunal finds it inconsistent that the authorities that are seeking to cause him harm because of his anti-government activities would issue the applicant with a passport and enable him to depart the country.
[3] Canada: Immigration and Refugee Board of Canada, Cameroon: Notices to appear issued by the General Delegation for National Security (Délégation générale à la Sûreté nationale, DGSN), including the issuing procedure; the content and appearance of the notices to appear, and whether it is the same at all police stations in the country; possibility of obtaining a fraudulent notice to appear (2012-October 2013), 23 October 2013, CMR104623.FE, available at: >
The Tribunal finds that the above evidence does not support the applicant’s claim that he is a person of interest to the authorities, failed to respond to the convocation and was in hiding from the authorities for eight years before he travelled to Australia in October 2016.
In making this finding the Tribunal has considered the applicant’s explanation that he was able to obtain a marriage certificate, the passport and depart Cameroon through the connection of a friend. The Tribunal found this evidence vague and lacking in detail. The Tribunal finds that such actions would require a significant amount of risk, planning and cost. They would require co-operation with government officials. The applicant said during his interview, as detailed in the delegate’s decision that his brother-in-law had a connection (Mr [B]) who assisted him in the process. He claims that it normally takes 21 days to issue a passport but he was able to obtain it the next day. He claims his photographs and fingerprints were taken even though the office was closed. The Tribunal has considered the applicant’s explanation but finds it lacking in credibility and has given it limited weight.
The applicant also claimed he would only attend Yaounde at night for two days and only see his family occasionally. The applicant said he would not carry any identification documents and when he was stopped by the authorities he would not give his real name and pay a bribe. The Tribunal has given this evidence little weight. The Tribunal does not find it credible that he was wanted by the authorities and was in hiding for eight years in circumstances where he operated a business in Yaounde, married at a public venue and had provided proof of identification to obtain his passport and marriage certificate and departed Cameroon as part of an official government delegation. The Tribunal finds that the applicant was able to operate a business in Yaounde, marry and raise a family and depart Cameroon because he was not a person of interest to the authorities because of his anti-government political opinion.
The Tribunal explained to the applicant that it must exercise caution in accepting his evidence in circumstances where he also claims that he provided false information to the Australian authorities to enable him to obtain a visa and travel to Australia [for a specified purpose], eight years after he claims he took part in protest activity in Cameroon and came to the adverse attention of the authorities.
The delegate’s decision notes that during his temporary short stay visa the applicant was endorsed to travel to Australia by the Cameroon [specified] authority to represent Cameroon [for a specific purpose]. The Tribunal does not finds this evidence is consistent with his claims that he was wanted by the Cameroonian authorities.
The applicant claims that he was not [a specified person] and did not represent Cameroon at [a specified event]. He claims his brother-in-law introduced him to a person in Cameroon who assisted him obtain the visa. He claims he had no knowledge to which country he was travelling to or on what visa. He claims he has a friend at the airport who also assisted him depart Cameroon without any problems. The Tribunal has considered the applicant’s explanation and has given it little weight.
The Tribunal put to the applicant at the hearing that it did not seem plausible that he would travel on false visa documents and not know anything about the visa type or the country where he was travelling. The Tribunal also noted that according to the delegate’s decision he was required to complete and sign a PAX card on the flight to Australia. On the applicant’s card under “profession” it states [specified]. This information is not consistent with the applicant’s claim that he did not know he was traveling [for a specified purpose] in Australia.
In response the applicant said that it was only the day before he departed Cameroon that he was told he was travelling to Australia as part of a delegation. He claims someone from the delegation may have filed out his PAX card for him. The Tribunal has considered the applicant’s evidence and does not accept that it is credible. The Tribunal does not accept the applicant would have been issued a passport, obtained an invitation to the [event] and be able to depart Cameroon international airport by plane as part of an official government delegation if he was a person who was wanted by the Cameroon authorities because of his anti-government political opinion.
The applicant said at the hearing that his [his brother-in-law] was taken by the authorities, tortured and killed. The Tribunal also found this claim inconsistent, vague and lacking in detail. The Tribunal noted that in his claim form (question 89) he said that his ‘uncle’ was arrested, tortured and died. In response the applicant said his sister’s husband was like a father to him. The Tribunal was not provided with any other evidence to support the claim that his brother-in-law was tortured and killed by the authorities. There is no evidence from the applicant’s sister. It is unclear when he was killed and why he was tortured. The Tribunal finds it surprising that the brother-in-law was not approached by the authorities sooner if the applicant was wanted by the police because he failed to respond to the summons.
The Tribunal has also had regard to the timing of the applicant’s departure from Cameroon. As detailed above the Tribunal does not accept as credible the applicant’s evidence that he had no knowledge that he was travelling to Australia as part of a delegation to take part in the [event] until the day before he departed. The Tribunal finds it difficult to accept that the applicant would wait eight years before making a decision to depart Cameroon and his departure would happen to coincide with the [event] in Perth, Australia held [in] October 2016 and [November] 2016. The applicant provided no evidence about any attempt to depart Cameroon at an earlier stage. In response to the Tribunal’s concerns the applicant claims he could not depart earlier because he did not have a passport.
In conclusion, having considered the applicant’s evidence the Tribunal does not accept the applicant was escaping persecution in Cameroon because he is an SDF member who took part in an anti-government demonstration in February 2008 and was wanted by the authorities. The Tribunal does not accept the applicant was injured during the protests, or was hospitalised. The Tribunal does not accept that the applicant has come to the adverse attention of the Cameroon authorities. The Tribunal does not accept that the applicant had been in hiding from the authorities until he departed Cameroon in October 2016.
Having rejected the applicant’s claims the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Cameroon in the reasonably foreseeable future because of his actual or imputed political opinion. The Tribunal finds that the applicant’s fear of persecution is not well-founded.
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).
The Tribunal has also considered the applicant’s claims, having regard to the complementary protection provisions.
The types of harm that fall under the complementary protection provisions are exhaustively defined by s.36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment, or the person will be subjected to degrading treatment or punishment.
As detailed above the Tribunal did not find the applicant to be a credible witness. The Tribunal does not accept he is a member of the SDF. The Tribunal does not accept that the applicant has come to the adverse attention of the Cameroon authorities because of his role in the February 2008 protest or because he is an SDF member whose name has come to the attention of the authorities and failed to respond to the convocation.
For the reasons set out above, the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Cameroon there is a real risk that he will suffer serious harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…

[2019] AATA 5630

10 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction