1926228 (Refugee)

1926228 (Refugee) [2019] AATA 5263 (13 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926228
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Tania Flood
DATE:13 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 13 November 2019 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – mental health – civil war – witnessed father’s death and confined in refugee camp as a child – serious criminal offence and imprisonment in Australia – humanitarian visa cancelled – application for protection visa – diagnosis of and treatment for complex PTSD – personal and financial support – mental health facilities and treatment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 18 September 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was born in Sierra Leone but fled to [Country 1] during the civil war. He arrived in Australia with his mother and [siblings] [in] September 2009 after being granted Global Special Humanitarian visas (subclass XB202). He was later convicted of a serious offence in Australia attracting a prison sentence. In 2017 his Global Special Humanitarian visa was cancelled. In February 2018 he was released from criminal custody and detained under s.189 (1) of the Act. The applicant appealed the decision to cancel his Global Special Humanitarian visa but was unsuccessful. The applicant applied for a Protection visa on 23 July 2019. The delegate refused to grant the visa on the basis that the applicant will not suffer harm upon return to Sierra Leone for reason of his mental health, his parent’s former activism or in connection with his father’s former property and land.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Sierra Leone for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sierra Leone there is a real risk he will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims and evidence
The applicant’s written claims for protection are outlined in a statutory declaration dated 20 July 2019. The claims are summarised as follows:
His father, who was an activist against child circumcision and child soldier recruitment, was killed in front of him when he was [age] years old. His mother took him and his siblings to [Country 1] where they remained as refugees for many years before being granted humanitarian visas to Australia.
It is not safe for him to return to Sierra Leone because secret killings occur which the government cannot control and people are still losing their lives due to political tensions between the government and the opposition.
The people who killed his father and took his properties may think that he will seek revenge or want to reclaim the properties if he returns. He fears these people will physically torture him, use black magic on him and/or kill him. His siblings have received warnings not to return to Sierra Leone.
He will face psychological trauma if forced to return as the memories of the past will harm him mentally. He will have no support, no accommodation, no money and no access to mental health services in Sierra Leone.
When interviewed by the delegate the applicant added that people with mental illness are stigmatised and considered unstable in Sierra Leone. He submitted that this will further limit his employment opportunities in Sierra Leone.
The applicant repeated these claims before the Tribunal. He also produced the following documents in support of his claim:
-    Copy of a submission to the Department dated 26 August 2019
-    Copy of a Statutory Declaration from the applicant’s mother dated 18 August 2017
-    Copy of a Statutory Declaration from [Mr A], [Church] dated 17 August 2017
-    Copy of a Statutory Declaration from [Ms B], family friend of the applicant, dated 30 August 2017
-    Copy of a Statutory Declaration from [Mr C], Senior Pastor, [Church] dated 18 August 2017
-    Copy of a letter from Mr [D], [Office holder] of [Organisation 1] to the Department dated 9 August 2017
-    Copy of a letter from Mr [E], [Organisation 2] dated 16 August 2017
-    A signed petition from members of the African Community in support of the applicant
-    Psychological Report dated 25 August 2019
FINDINGS AND REASONS
Country of reference
The applicant previously produced evidence to the Department to support his claimed Sierra Leonean nationality. In the absence of any information to the contrary the Tribunal accepts he is a national of Sierra Leone.
The applicant’s mental health
The Tribunal has first considered the claims arising from the applicant’s diagnosed mental health condition.
During the Tribunal hearing the applicant stated that he suffered a lot as a child having witnessed his father’s death and being subjected to years of confinement in a refugee camp. He said he came under a lot of stress when sitting for his higher school certificate (HSC) which happened to coincide with the anniversary of his father’s death. He said he achieved a poor HSC result which made him feel insecure and inadequate. He said he did not seek help and his situation worsened when his relationship with his girlfriend started to break down. He said this led to a suicide attempt. He stated that while in prison his mental health deteriorated. He said he had nightmares and became increasingly anxious as he was reminded of being in a refugee camp. He said he sought help through the prison’s medical service and commenced counselling and went on medication. He said he has continued to avail himself of counselling, both in prison and in immigration detention, and has never interrupted his medication regime since commencing on anti-depressants about five years ago.
Before the Tribunal is a copy of a Psychological Report dated 18 August 2019. The report outlines the applicant’s family background in a manner consistent with his written claims and oral evidence to the Tribunal. The report indicates that the applicant underwent a structured clinical interview and was administered a number of standardised psychometric tests by a qualified psychologist. The resulting diagnosis is that the applicant is suffering from Complex Post Traumatic Stress (Complex PTSD) and major depressive disorder which is recurrent and severe. The report notes the applicant has been taking anti-depressant medication (Avanza 30mg) since late 2014. His evidence to the Tribunal is that the dosage has recently been increased to 45mg. The Tribunal accepts on the expert medical evidence available that the applicant has Complex PTSD and severe depression for which he requires ongoing and uninterrupted pharmaceutical and complementary treatment, including psychological counselling.
The applicant told the Tribunal that people with mental illnesses are stigmatised and for this reason he will be mistreated, denied employment and other essential services. He claims he will have no financial or familial support and that these pressures will only worsen his mental condition. He said in such circumstances he would be inclined to give up on life.
The delegate found that the applicant has a network of connections in Sierra Leone, including a girlfriend, extended family, family friends and former friends from his time in [Country] from whom he could draw support if he returned to his country of birth. Further, the delegate concluded the applicant could rely on financial support from his family in Australia.
The applicant’s mother was unable to attend the hearing but the applicant’s evidence is that she is working as [an Occupation 1]. He said his [siblings] are enrolled university students who also do some casual [Occupation 1] work. The Tribunal accepts this is the case. The Tribunal agrees with the delegate’s assessment that the applicant’s family is likely to offer him some financial support if he returns to Sierra Leone. However, given the family’s declared income sources and the cost of living in Sydney the Tribunal finds that any financial support will be limited by their means.
Based on the applicant’s oral evidence the Tribunal accepts he does not have a girlfriend in Sierra Leone and that as he left the country when he was [age] years old he effectively does not know any of his extended family or his parents friends. The Tribunal discussed with the applicant the delegate’s observation that his [Social media] account reveals numerous contacts in Sierra Leone and evidence that he and his mother have or are providing financial support to persons in Sierra Leone which arguably might be reciprocated if he returns. The applicant responded that he is sometimes contacted be persons claiming to be from his extended family or connected to his family in some way and that he has added such persons to his list of “friends” on [Social media]. However, he said he has never exchanged more than a few pleasantries with them and could not expect them to support him. The applicant acknowledged that he and more particularly his mother have provided financial support to persons in Sierra Leone. He said that his mother has assisted persons who helped them when they were living as refugees in [Country] and other needy persons she knows in Sierra Leone who have reached out for help. He pointed out that these circumstances show those people are in need of assistance themselves and cannot be expected to support him in such circumstances. The Tribunal was persuaded by the applicant’s evidence and accepts there is no certainty he could rely on emotional support and/or other assistance from persons he either does not know personally or with whom he has established fleeting Facebook connections.
The delegate found that the applicant does not demonstrate physical symptoms associated with severe mental illness to a level that would cause him to be identified as mentally ill by members of the community in Sierra Leone. The Tribunal discussed this with the applicant during the hearing and asked him to explain how people in Sierra Leone would become aware he has a mental health condition. He replied that he talks openly about his situation in order to help others who are experiencing similar problems. He said that rumours will spread and in any event he will be required to attend a clinic to obtain medication and treatment and people would observe this and question him about his health. The applicant’s uncle gave evidence that the applicant will be traumatised if he returns to Sierra Leone and his behaviour will reflect this and be evident to others. His representative added that the applicant requires medication and if for some reason he does not get it his anxiety will increase and his mental health will result in behaviour which is noticeable to others.
In considering this issue the Tribunal had regard to the psychological report provided in submissions which relevantly notes the following in respect of PTSD. It is often viewed as one category when it is in fact a very complicated disorder with varying symptoms that affects victims of different traumatic events.[1] It is a disorder of reactivity and avoidance and its psychopathology is characteristically expressed during interactions with the interpersonal or physical environment.[2] It is for this reason that individuals with PTSD are consumed by concerns for their personal safety and they persistently scan the environment for threatening stimuli. The difficulty encountered in treating PTSD is that individuals are not able to process the fact that the threat, which was previously present in their life, no longer poses a risk once the person has relocated to another environment. To the individual with PTSD the threat is always present and they sometimes act inappropriately as they construe their environment as dangerous and threatening.
[1] Hamner, MB (1997) Psychotic features and combat-associated PTSD, Depression and Anxiety Vol 5.
[2] Friedman, MJ (2011) PTSD and related disorders. In DJ Stein, MJ Friedman (eds) 2011, Post-traumatic stress disorder, UK, Wiley-Blackwell Publishers
The Tribunal accepts the applicant has Complex PTSD and that he will find himself in an unfamiliar and uncertain environment if he returns to Sierra Leone. While he might have some financial support from his family in Australia the Tribunal is satisfied he will lack the important emotional support he requires and which his family could give him if he remained in Australia. The Tribunal agrees with the submissions made at hearing that without this support there is a chance the applicant will become mentally unwell and demonstrate behaviours of a mentally unwell person, including acting inappropriately in certain situations, if he returns to Sierra Leone. Together with the fact he will be required to seek public services for his condition the Tribunal agrees there is a chance which is not remote that his mental health issues will become evident within the community.
The Tribunal has had regard to independent reporting on the situation facing persons with mental illnesses in Sierra Leone. Relevantly, an article in the Sierra Leone Telegraph dated 9 October 2015[3] states the following:
Sierra Leone has very few mental health workers, a single psychiatrist, two psychiatric nurses and a handful of social workers and counsellors. There is therefore a desperate need for more mental health workers in Sierra Leone.
But the situation in Sierra Leone is exacerbated by the fact that it is extremely difficult to recruit students into psychiatry, which is frowned upon and stigmatised in all African countries …
In a brief chat, a mental health patient, who prefers anonymity, said this about some of the social problems in post war Sierra Leone and that of the Ebola outbreak: “The dignity of many people with mental health conditions is not respected. People with mental health conditions in Sierra Leone and the world in particular experience stigma, discrimination and wide-ranging violations which strips them of their dignity”.
This mental health patient, who has recovered from the illness, further said that many people suffering from mental illness are subjected to physical, sexual and emotional abuse, and neglect in hospitals and prisons, but also in the communities.
A father, whose son is suffering from a mental health condition, says that any person with mental health problems in Sierra Leone faces a high level of stigma and discrimination. “They are tagged as having mental health problems; they experience social deprivation; losing their jobs; losing social prestige and becoming isolated from their families and society”, he said.
[3] “Mental Health – The Silent Crisis in Sierra Leone”, Sierra Leone Telegraph, 9 October 2015
It is further reported[4] that:
Stigmatisation is probably the major problem in the area of mental health, and it affects every aspect of the work done by the International Medical Corps, including attendance at clinics, compliance with medication, and particularly the availability of social support for people who are mentally ill. Brief surveys showed that most of the community believed mentally ill people to be evil, violent, lazy, stupid, unable to marry or have children, and unfit to vote.
[4] “Tackling mental health in Sierra Leone”, The BMJ, 29 September 2005
A more recent report from a local Sierra Leonean non-government health agency states:
There is little awareness of mental health in Sierra Leone and beliefs that mental health problems are a result of witchcraft are prevalent.[5]
[5] “AdvocAid reaches mental health milestone for female detainees in Kenema”, AdvocAid, 5 February 2018

The US Department of State[6] reports:
The Persons with Disabilities Act prohibits discrimination against persons with physical, sensory, intellectual and mental disabilities in employment and provision of state services, including judicial services. The government did not effectively implement laws and programs to provide access to buildings, information and communications. The government-funded Commission on Persons with Disabilities is charged with protecting the rights and promoting the welfare of persons with disabilities. Given the high rate of general unemployment, work opportunities for persons with disabilities were few, and begging by them was commonplace. Children with disabilities were also less likely to attend school than other children.
There was considerable discrimination against persons with mental disabilities. The vast majority of persons with mental disabilities received no treatment or public services. The Sierra Leone Psychiatric Hospital in Kissy, the only inpatient psychiatric institution that served persons with mental disabilities was underfunded. It had only one consulting psychiatrist, patients were not provided sufficient food and restraints were primitive and dehumanizing. The hospital lacked running water and only sporadic electricity. Only basic medications were available.
[6] “Sierra Leone 2017 Human Rights Report, in Country Reports on Human Rights Practices for 2017, Bureau of Democracy, Human Rights and Labour, United States Department of State, 2018
An NGO in Sierra Leone surveyed attitudes to mentally ill persons and reports:
It has been over a decade since then, but progress has been slow. Despite efforts by international organisations and aid agencies to channel funding towards mental healthcare, there is still only one hospital in the country equipped to treat patients with mental health issues, meaning many have to rely on traditional healers. Meanwhile awareness campaigns aimed at educating people about mental health also still have a long way to go. A study of Sierra Leoneans’ perceptions of mental health in 2002 found that 25% thought psychological conditions were associated with “spirits, curses or demons”. Many of these understandings and many of the stigmas around mental health still remain today…[7]
[7] “Africa: Nurses Not Curses – Witchcraft Beliefs and Mental Health in Sierra Leone”, WAMM, 29 December 2015
Further reporting on traditional attitudes notes:
Sierra Leone like most African countries is highly traditional. Sickness especially mental health-related, is often associated with witchcraft or bad juju. Thus, in most cases the first port of call to treat mental illness is traditional healers (herbalists) or spiritualists seeking divine intervention.
It is also reported that in addition to social deprivation; losing their jobs; losing social prestige and becoming isolated from their families and societies, persons with serious mental health conditions are reported to suffer inhuman forms of liberty-deprivation under the auspices of an outdated legal framework, the ‘Lunacy Act’ (1902). Some patients were reportedly kept in isolation for months and many were physically restrained with chains and padlocks and the dosages given of psychiatric medications are high.[8]
[8] Van Gog, JG, Talking about the Sierra Leone ‘Kresyad’: An ethnographic exploration of the Sierra Leone psychiatric hospital (unpublished Msc Thesis), 2009, cited in Alemu W, Funk, M, Gakurah T, Bash-Taqi D, Bruni A, Sinclair J, Kobie A, Muana A, Samai M, Eaton J, WHO profile on mental health in development (WHO proMIND): Sierra Leone World Health Organisation, Geneva, 2012.
The Tribunal notes these and similar reports are referenced in the delegates decision. In addition the delegate referred to reports which indicate the government is taking steps to increase treatment for, and raise awareness about, mental health since the Ebola outbreak in 2014.[9]
[9] “Invisible scars? Mental health provision in Sierra Leone’, Peace Insight, 8 December 2017; “Improving access to mental health services in Sierra Leone”, World Health Organisation, 20 April 2018; “KLSP – Mental Health”, Kings Sierra Leone Partnership, 31 December 2018; Sierra Leone: A long road towards mental health reform’, Politico SL, 3 October 2018.
Based on this information the Tribunal is satisfied that substantial endemic discriminatory assumptions about mentally ill persons continue to be present in Sierra Leonean society and in the medical profession despite any recent attempts by the government to improve the rights and treatment facilities for mentally ill patients. As noted above the Tribunal finds the applicant’s mental health will likely deteriorate if he returns to Sierra Leone due to his diagnosis, the uncertain conditions he will encounter and the lack of emotional support from close relatives. The Tribunal accepts that in such circumstances his behaviour is likely to reveal he is affected by mental illness.
Based on the country information outlined above, the Tribunal is satisfied that there is a real chance the applicant will be stigmatised by the community and regarded as an evil person or someone affected by demons or witchcraft. In such circumstances the Tribunal finds that the applicant faces a real chance of societal discrimination including abuse, isolation, neglect and/or physical harm. The Tribunal is satisfied that such treatment amounts to serious harm. Additionally, the Tribunal finds the applicant’s mental health could also be further exacerbated if he seeks professional intervention in Sierra Leone due to a reported lack of understanding, education and fear on the part of psychiatric health professionals leading to mistreatment and neglect of mentally ill patients.
The Tribunal finds the reason for the harm will be the applicant’s membership of a particular social group – “persons suffering from mental illness in Sierra Leone”. This is because of common and ongoing prejudicial attitudes towards persons with mental illness due to superstitious perceptions about the mentally ill. The Tribunal is satisfied that persons suffering mental illness in Sierra Leone have a characteristic common to all members – their mental illness. This characteristic is an illness and not the shared fear of persecution and the possession of that characteristic distinguish the group from society at large.
Despite the work reportedly undertaken by international agencies to assist the Sierra Leonean government to improve its approach to mental illness independent reporting nevertheless highlights ongoing deficiencies in light of ineffective implementation of laws and programs. Therefore the Tribunal is not satisfied that effective state protection will be available to the applicant against the harm he fears. As the situation for mentally ill patients is state-wide the Tribunal finds the applicant will be at risk of serious harm anywhere in Sierra Leone.
For these reasons, the Tribunal finds the applicant has a well-founded fear of persecution if he returns to Sierra Leone now or in the reasonably foreseeable future for reason of his membership of a particular social group – “persons suffering from mental illness in Sierra Leone”. Therefore the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
In view of this finding, the Tribunal has not found it necessary to consider the other claims raised by the applicant in his written and oral submissions.
The Tribunal notes that s.36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. In this case the applicant’s grounds for claiming protection arose after he was resettled in Australia. There are no possible steps he could have taken to avail himself of a right to enter and reside in a third country, notwithstanding any arrangements that may exist under the auspices of the Organisation for African Unity (OAU) for visa free entry and residence in neighbouring African states.
Additionally, s.36(4)(a) of the Act provides that subsection (3) does not apply in relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There is information before the Tribunal which indicates that discriminatory and prejudicial societal and institutional attitudes towards people with mental illnesses are reportedly little different in neighbouring countries such as Togo, Liberia, Guinea and Ghana.[10] The Tribunal is satisfied that the applicant is saved by s.36(4)(a) of the Act.
[10] “The Chains of Mental Illness in West Africa”, The New York Times, 11 October 2015
Notwithstanding the above, the Tribunal notes there may be some potentially relevant public interest questions in regard to this matter and acknowledges the submission made by the applicant’s representative that it is open to it to make a finding in respect of s.36(1C) of the Act. In this regard the Tribunal notes that as the primary decision maker was not satisfied the applicant met the criteria for a Protection visa, no primary decision was made in respect of the provisions at s.36(1C) of the Act. In any event, the provisions in clause 4.33(4)(b) and (c) of the Regulations, which provide what are not permissible directions in a Part 7 review, satisfy the Tribunal that it does not have jurisdiction to consider whether the applicant is a danger to Australia’s security; or where the applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tania Flood
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 5263

13 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice