1910176 (Refugee)

1910176 (Refugee) [2019] AATA 5849 (13 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1910176
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:13 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 June 2019 at 12:10pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – claim that ISIS are targeting Shi’a – targeted for inter-tribal dispute – returnee from a foreign country – lacks family connections – claim is vague and not supported by evidence – large support network – inconsistencies – lack of a profile – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424AA, 499
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 Immigration on 17 April 2019 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 Iraq, applied for the visa on 13 September 2018.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
AAT Hearing
The applicant’s file was gone through and he was told that he was asked to provide information regarding the names, locations and status of all his uncles and aunts as well as documentary evidence to prove the same. He claimed that he had lost his phone on which all the information was stored, and then that his father had sent all the documents to [Detention Centre 1] in the property area and he hadn’t received them.
Asked what documents he was going to provide, he claimed his family was going to write them down for him and sent it to [Detention Centre 1]. Asked why he sent them to [Detention Centre 1] and not to the tribunal, the applicant claimed that his father didn’t know how to send them to the Tribunal. He was then asked whether he had had a discussion with his father about his relatives’ whereabouts and could describe them to the Tribunal, he said that he had.
Asked what his claims were, he claimed that he didn’t know who would harm him. He had no family there. He claimed that he may be killed but didn’t know who would do this. Asked why he would be targeted in particular, he said he didn’t know what to reply to that. It was explained to him why he had to make out a case as to why he in particular would be harmed rather than just some general fear, it was unlikely his fear would be well-founded. He claimed that he understood and then said it was because of his religion and that his uncle had been killed and this started everything and they wanted his father. They had to leave Iraq.
He claimed that his uncle was killed in 1999. Asked why he would be of interest 20 years after this event, he said he didn’t know as he was [age] years old. His uncle had been hanged and they came looking for his father to join the army. The applicant was asked why he would be of interest [number] years later with a Shi’a dominated government now in power.
He said it wasn’t just there and he said it wasn’t just them it was ISIS as they were everywhere, including in Basra where he was originally from. Asked if he had any evidence of this he said he didn’t but it was on the news. It was put to him that the population of Iraq was over 20 million and was asked why he would be targeted and he claimed he wasn’t saying that he would be targeted but it was dangerous there.
It was explained to him that he had to make out a claim regarding himself, and was asked why he would be targeted as a Shi’a. He said that because he came from a different country he could be targeted for kidnapping as they thought he was rich. Asked if he had evidence that people coming from overseas were kidnapped he said he didn’t but he had heard this. Regarding his Shi’a faith, he claimed that ISIS was targeting the Shi’a. It was put to him that the Iraqi PM declared victory over ISIS last year and his one word response to this was not intelligible.
Asked what relatives he had in Iraq, he claimed that he had one uncle but didn’t know where he was as they had no contact with him. This was his father’s half-brother. He had no other relatives there in Iraq; one maternal auntie in [Country 1] and was married. Another uncle was in [Country 1]. They were both [Country 1] citizens. Another maternal uncle was in [Country 2] but he didn’t know what citizenship he had as he hadn’t spoken to him. He wasn’t aware of any cousins.
Asked if his aunts and uncles had children he said that they did and they were in [Country 1] and were [Country 1] citizens. His maternal uncle was half-Iraqi and half-[Country 1]. He then said he didn’t know if he was a [Country 1] citizen. He was advised that he needed to be accurate as he had previously said that his uncle was a [Country 1] citizen. His maternal auntie was a [Country 1] citizen as she had married a [Country 1 citizen] (but was herself a Bidoon). He said his mother had two sisters and the other was in [Country 2] (he denied that he had said he had an uncle in [Country 2] and said it was an aunt).
His father had one half-brother only, who was in Iraq but with whom they had no contact. There were no other brothers or sisters. The person hanged in 1999 was his father’s full brother and he had no other full brothers. The hanged brother’s wife was in Iraq and they had a boy and a girl but he didn’t know where any of them. Asked if anyone tried to have contact with them he said that they hadn’t. He knew nothing about them. Asked if his father had not tried to keep in contact with his niece and nephew, and he said he didn’t live with his family and had never asked them about his cousins.
Asked why he couldn’t return to Iraq he claimed that he had no family there as they were all in Australia. It was put to him that he had two cousins and he said that he didn’t know them and he couldn’t live with them. It was put to him that they could provide an initial point of contact and he said that he didn’t know anything about them. It was put to him that there was a difference between inconvenience and serious harm and he said that he knew nothing about them at all.
It was put to him that it was understood that his family was in Australia but it was what faced him in Iraq. He claimed he didn’t know the people in Iraq and couldn’t live with them and have them support him for the rest of his life. He claimed his life was here and he had a partner and was married. Asked when he was married he claimed that it was seven months ago. Asked if he had a marriage certificate he said that he didn’t.
He was asked to provide it and he said that he didn’t get officially married but was engaged as they couldn’t be married in [Detention Centre 1]. It was put to him that the Tribunal was aware of people being legally married in [Detention Centre 1] and he asked how this was the case. It was put to him that he had claimed to be married when he wasn’t and had already been told to be accurate in what he said as his credibility needed to be assessed.
His mother and brother were then brought in to appear as witnesses and were sworn in. The applicant’s mother was asked about their situation in Iraq which was the focus of the Tribunal’s considerations. She claimed that in Iraq no one could live as a normal human being. She was told to be specific as there were more than 20 million people there, many of whom lived there without problems.
She said that Iraq consisted of tribes and there were conflicts between them. The police couldn’t help them. Asked why her son would be targeted, she claimed that the tribes had conflict and foreign countries were funding their district and were supporting the tribe that is opposed to their tribe. Asked why her son would be of interest, she claimed that he was a member of the targeted family. They were being targeted by people from London who were sending funds to the police in their district where they used to live. One of her paternal cousins was killed in London two or three months ago.
Asked if she had sisters and brothers, she claimed that she had two brothers in Zubayr (Iraq) and sisters in [Country 3], [Country 2] and four in [Country 1]. The ones in [Country 1] didn’t have citizenship as they were Bidoons – the applicant’s mother had Iraqi citizenship. The sister in [Country 2] had [Country 2] citizenship from marrying [a Country 1 citizen]. Her brothers in Zubayr had four and two wives respectively but she didn’t know how many children they had.
Asked how they were able to survive in Zubayr, she claimed they had adapted to the environment. Asked why her son wouldn’t be able to adapt to the environment, she claimed that his family was here and nobody would support or take care of him. Asked if her husband had brothers and sisters, she claimed that his family was poor and lived in the desert. Asked how many siblings he had, she claimed he had four brothers and four sisters. They lived in Zubayr or perhaps the desert areas – they all lived in Iraq.
Her relationship with them wasn’t good. Her husband had a normal relationship with them. It was put to her that the applicant had 10 aunts or uncles and lots of cousins in southern Iraq so had lots of support. She was asked why he couldn’t return there and she claimed that in this current situation nobody could give anyone support. There were murders and nobody would ask support from anyone other than their family. Her husband’s family didn’t like her and they wouldn’t like the applicant as a result. The applicant’s brother offered up a letter of support and was told it would be taken into consideration but the focus of the Tribunal was the situation in Iraq.
The applicant was advised about s 424AA and it was put to him that his mother had advised the Tribunal that his father had several brothers and sisters in Zubayr and she had brothers there as well after he had only mentioned his uncle’s wife was in Iraq only with a boy and a girl. The inconsistencies between what his mother told the Tribunal and what he claimed may lead the member to conclude that he wasn’t being truthful regarding the family support available to him in Iraq.
He claimed that his father’s siblings were only half-siblings and he had told the Tribunal he had two maternal uncles; one in [Country 1] and one in [Country 2] and that was all he knew. If they’re in Zubayr it didn’t really matter and he hadn’t lied about that.
Also under s 424AA it was put to him that his mother spoke about a family/tribal dispute with support from overseas but that he had made no mention of this. The inconsistency again raised questions about how truthful that claim was. He claimed this happened very recently and he hadn’t mentioned it before. It was a long story about her brother killing someone else and he had never written it on his statement for protection because it had only happened recently.
Country information was put to him that people could re-integrate into southern Iraq, particularly if they had family/tribal connections, and that he spoke the language and had quite a few relatives in southern Iraq so could be able to re-integrate. He claimed that he didn’t know people because they were his father’s step-siblings and wouldn’t talk to them. There were also big dramas there in Iraq at the moment and he had no one to support him and give him money.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year-old single male. I accept that he is an Iraqi citizen and his claim will be assessed accordingly. He arrived in Australia [in] July 2005 on a refugee visa, which was cancelled in 2017 on character grounds after serving a prison sentence. He applied for protection in September 2018.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claim to be vague, inconsistent and lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.
Family support in Iraq
I do not accept that the applicant lacks family support in Iraq. This is a key element of his claim as country information indicates that it would be difficult to re-integrate without familial or tribal support networks, but that it is possible in southern Iraq for those with local familial networks.[1] Given the applicant was last in Iraq around 15 years ago, it is reasonable to expect that he would need such networks to make his return viable.
[1] DFAT Country Information Report – Iraq, 9 October 2018
The applicant was asked (folio 86) prior to the hearing to provide a list of all maternal and paternal uncles, aunts and cousins, their locations and evidentiary proof of their residency/citizenship status. In a statement prior to the hearing (folio 85) he said he would provide such a list separately but that there were a ‘couple of uncle under law’ but that his ‘father doesn’t know about them well’. No separate list was ever provided.
I am satisfied that the applicant has sought to disguise the reality of his familial situation in order to paint a picture of someone lacking such a network, when in reality he has a significant degree of family support. When asked at hearing what family he had in Iraq, he claimed that he only had a paternal half-uncle and the wife of a deceased paternal full uncle in Iraq. He also claimed that he had no contact with either of them. He also claimed that he had two maternal aunties (one in [Country 1] who was a [Country 1] citizen through marriage and one in [Country 2]) and a maternal uncle in [Country 1].
His mother however told the member that she had two brothers in Iraq, four sisters in [Country 1] and sisters in [Country 3] and [Country 2], while her husband had four sisters and four brothers all in Iraq. This is a significant inconsistency and I believe a result of the applicant trying to hide the degree of family support he actually has in Iraq if he were to be returned there.
I do not accept that the error was because he was only referring to his paternal uncles, not half-uncles. It lacks credibility that the applicant would fail to mention the presence of eight uncles and aunts (regardless of whether they were step or full siblings) when asked about any relatives he had in Iraq. It also does not explain why he failed to mention the presence of two maternal uncles in Iraq. His rather vague claim when asked about the two maternal uncles he had neglected to mention that ‘it didn’t really matter’ or that he only knew them to be in [Country 2] and [Country 1] was unconvincing and I give it little weight.
I do not accept the applicant’s mother’s claims that her family-in-law didn’t really like her and therefore would not accept her son, nor do I accept that there is a tribal dispute targeting their tribe in Iraq and that foreign money was being used to support the other tribe. Not only was the claim very vague and not supported by any evidence, it was never made by the applicant prior to the hearing. The applicant claimed it was a long story about his maternal uncle killing someone else but it had only happened recently so he had not mentioned it before.
Nowhere in his statements written just prior to the hearing (folios 82-85) is there any reference to an uncle killing someone or a tribal dispute. Nor is there any mention of this in the references written by his brother prior to the hearing (folio 94) or his alleged partner after the hearing (folios 95-98). It is reasonable to believe that if there was a tribal dispute resulting from a murder committed by an uncle this would have been mentioned by someone other than his mother at hearing.
Given I do not accept that the mother is being truthful when she says about the presence of a tribal dispute, I also do not accept that her family-in-law do not like her and therefore would not like the applicant. There is also inconsistency in the description of the father’s relationship with his family in Iraq. The applicant claimed that his father ‘didn’t know about them well’, yet the mother said that her husband (the applicant’s father) had a normal relationship with his family.

Because the mother and father have good relations with at least their own sides of the family in Iraq, it is reasonable to conclude that the applicant would be supported, at least in terms of accommodation and board, until he was able to find his feet in Iraq in terms of employment by one or other (if not both) side of the extended family.
Other Issues
I do not accept that the applicant will be of interest to the authorities because his uncle was hanged 20 years ago and the authorities came looking for his father. The applicant was a child at the time and the Saddam-era government apparatus has been completely changed since that time. I am willing to accept that the uncle was hanged by the Saddam regime in 1999, but I do not accept that the applicant was or ever will be wanted by the authorities because of this. He was unable to articulate a reason as to why he would be of interest when asked.
I also do not accept that the applicant would be wanted by Islamic State. Again, he could not say why he would be targeted other than it was dangerous in Iraq. The Iraqi prime minister declared that Islamic State was defeated in Iraq in December 2017[2] and country information indicates that there are only isolated incidents of violence in Shi’a-dominated areas but that Shi’a may be at moderate risk of violence during pilgrimages and religious festivals. He has not indicated that he is religiously observant but did claim that Islamic State was targeting Shi’a.
[2] accessed 11 June 2016
Given he has a large number of family members who have lived in Iraq through the most dangerous phases of the last few years, and continue to live there, it is reasonable to believe that they will be able to advise and assist the applicant to enable him to adapt to the current security situation. I do not accept that the applicant will be individually targeted as a Shi’a given his lack of a profile, or that he would inadvertently be targeted given the advice and support his family can give him.
I also do not accept that he would be kidnapped as a returnee from a foreign country. There is no country information available that supports such a claim, nor was any provided to the Tribunal. He said that this claim was based on what he had heard from people and, given his lack of credibility and the lack of evidence I am not satisfied that this will happen to the applicant.
I accept that the applicant came to Australia as a teenager and that he has not been to Iraq for many years. Yet I also note that the applicant is a native Arabic speaker, has a large family support network that I have found would be able to support the applicant to re-establish himself in the south of the country. Although the applicant claimed to have been married while in prison, when he was asked for a copy of the marriage certificate he then claimed that he was not married but would be later.
I have taken into account the letter of support from the person who claims they would be married at the first opportunity. My findings have nothing to do with his relationship in Australia, and are simply focused on his claim to fear serious harm in Iraq. On that issue I have found the applicant to be less than forthcoming, and inconsistent in his evidence.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the that the applicant will be killed by Islamic State because he is Shi’a, that he will be targeted because his uncle was hanged in 1999, that he will be kidnapped because he is a returnee from a foreign country, targeted in an inter-tribal dispute or that he lacks any family connections in Iraq, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
While I accept that the security situation has previously been unstable in parts of Iraq, I am not satisfied that this alone constitutes a real risk of significant harm. Islamic State has been essentially defeated and Iraqi government control reasserted over those areas it held.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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.
Rodger Shanahan
Member

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

[2019] AATA 5849

13 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction