1928313 (Refugee)

1928313 (Refugee) [2020] AATA 700 (16 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1928313
COUNTRY OF REFERENCE:                   India
MEMBER:Damian Creedon
DATE:16 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2020 at 4:12pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexual male – well-foundedness of fear – negative social attitudes and ostracism – evidence of experiencing violence – vague generalisations – no real risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 2 October 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 India, applied for the visa on 10 September 2019. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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 the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age] year old man from Amritsar, Punjab, India.
The applicant is of the Sikh faith, and is of Punjabi ethnicity.
The applicant is single. His mother resides in India together with his siblings ([specified]). His father passed away in 2010.
The applicant completed his secondary education and the first academic year of a [Qualification 1] in India before deciding to undertake international study in Australia.
The applicant arrived in Australia [in] September 2015 pursuant to a [student] visa, valid until 2 August 2017.
On 2 August 2017 the applicant lodged an application for a [second student] visa. That application was refused on 8 November 2017 and on 14 December 2017 the applicant became an unlawful non-citizen.
On 3 August 2018 the applicant was located by Victoria Police and detained under s.189(1) of the Act.
On 10 September 2019 the applicant lodged an application for a Protection Visa.
Claims:
In his application for a protection visa[1] the applicant made the following claims:
[1] Document Reference No. [number]; Generated: Tue, 10 Sep 2019
a.When he was in school he told a ‘few of his friends’ that he was gay and they started treating him differently, calling him ‘taxi’ and a ‘tempo’ to embarrass him and he was not included in the cricket team anymore.
b.He was sexually abused by the senior students after he told his friends about his sexuality.
c.He did not seek help in India as he did not want to let anyone else know about his sexuality because ‘all people think the same way’.
d.The applicant could not move to other parts of India because he has no financial help.
e.His parents disowned him when they ‘found out’ that he is gay.
f.He states that he fears for his life from his family, former friends, and the wider community.
g.He states that his family feel that he has brought shame on them for being gay.
h.He states that he would be prosecuted for being gay by all ‘sects’ of the community and there are lots of examples of people like him being prosecuted and ‘even killed’ by the wider community.
i.He fears that he ‘would be harmed, prosecuted and may even be killed by family, former friends, relatives and the wider community’.
j.He states that the authorities in India are ‘highly corrupt’ and have heavy caseloads and that authorities in India cannot protect him in any way.
k.He states that he cannot relocate in India because he has no financial assistance; he states that he also has ‘mental health problems’ because of his childhood abuses. He states that he has stress and depression because he still things about his childhood traumas ‘all the time’.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a.The applicant’s protection visa application forms completed on 10 September 2019 (visa application);
b.The applicant’s identity documents being a certified copy of his passport obtained from the Department’s file;
c.The protection visa decision record dated 2 October 2019 (delegate’s decision record); and
d.The review application form which included a copy of the delegate’s decision record.
The Tribunal has also had regard to:
a.the Department of Foreign Affairs and Trade’s (DFAT)’s most recent ‘Country Information Report on India’, published on 17 October 2018 (DFAT Report); and
b.The United Kingdom Home Office’s ‘Country Policy and Information Note – India: Sexual orientation and gender identity and expression’, published on 1 October 2018 (UKHO Note).
Country of reference / receiving country:
The applicant claims to be an Indian national. Based on the copy of his passport provided to the Department of Immigration and Border Protection (the Department) by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that India is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended a hearing on 6 March 2020. He was not represented. The hearing was assisted by an interpreter in the Punjabi and English languages.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant stated that he had filled out the forms himself, with the assistance of a friend. He said that contents were true and correct and that he did not wish to add anything to them.
The applicant confirmed that he completed his high school education in India and the first academic year of [Qualification 1] before deciding to undertake international study in Australia.
The applicant stated that he arrived in Australia [in] September 2015 on a Student visa. When asked by the Tribunal what his motives were in seeking to study in Australia the applicant stated that it was his intention to complete his study and to then follow a visa pathway towards an eventual application for permanent residence in Australia.
The Tribunal discussed with the applicant when he believed he discovered that he had an interest in males. The applicant stated that this had occurred at around [age] years of age. The applicant further stated that it was at around this age that he became aware that he had no interest in girls and only had an interest in ‘boys’.[2] When pressed by the Tribunal, the applicant stated to the effect that at around that age a girl had proposed to him and that he had found that he was not at all attracted to her and that he preferred ‘boys’. He stated that he had confided his sexual preferences in one of his school friends, that that person had ‘leaked’ the news and that his family came to know of his sexuality. He stated that, when his family came to know, there was a ‘big fight’ and his family had tried to push him into a marriage
[2] The Tribunal understood the applicant’s reference to ‘boys’ in the giving of his evidence to be intended by the applicant as a reference to ‘males’. Where the term appears in the Tribunal’s decision it is used in that way.
The applicant stated that ‘news’ of his sexuality also reached others in his school and that he was bullied by other students and excluded from school sporting teams.
The applicant stated that he had not been sexually active in India, and that he only became sexually active upon his arrival in Australia. When pressed by the Tribunal the applicant stated that it was ‘eight or nine’ months after his arrival in Australia that he first became sexually active and that he was introduced to his first sexual partner by a mutual friend. The applicant stated that the relationship lasted for ‘five or six’ months, although he was keen for it to last longer.
The Tribunal asked the applicant whether he had had other sexual relationships in Australia. The applicant stated that while he was living in Melbourne he attended a ‘gay club’ which he identified by name. The Tribunal asked the applicant where that club was located in Melbourne, the nature of its target clientele and to describe its internal layout. The applicant provided this information without hesitation and with an ease and confidence sufficient to persuade the Tribunal that the applicant had attended the club and was familiar with it. The applicant stated in evidence that he went to the club to meet sexual partners. The applicant also stated that he attended a ‘gay club’ in Perth, again identifying it by name and providing sufficient details to persuade the Tribunal of the cogency of his evidence. Overall, the Tribunal found the manner of the applicant’s presentation of this evidence persuasive. In particular the Tribunal is persuaded that the applicant attended the clubs as he described in evidence and that he did so to meet male sexual partners.
The Tribunal asked the applicant why he feared to return to India. The applicant stated that the wider community ‘where he lives’ in India does not accept the concept of ‘gay’. He stated that ‘where he lives’ the people are ‘uneducated and backward’.
He stated that, because of the prevailing community attitudes towards LGBTI people, he suffered from ‘anxiety and depression’ in his youth. He stated that when his family came to know of his sexuality there was a ‘big fight’ and that because of this he fears returning to India. When pressed by the Tribunal, the applicant stated that he felt he had brought ‘shame’ on his family. He stated that only his family, a ‘few’ college friends and a ‘few’ others ‘around the village’ know of his sexuality, but that if it became more widely known in his home community things would be ‘very hard’ for him.
When asked to explain what he meant by things being ‘very hard’ the applicant stated that his family do not accept one of ‘their children’ being gay and that the broader community did not understand how it felt to him, that it was something that was intrinsically a part of him, not a superficial decision that he could change at will.
The Tribunal asked the applicant whether, in consequence of the community’s attitude, he feared for his safety in India to which the applicant replied ‘absolutely’. When pressed by the Tribunal the applicant stated that his ‘parents’[3] did not understand him and that his brother threatened him saying that ‘he (his brother) would make a man of him (the applicant)’. When further pressed by the Tribunal the applicant stated that, by this comment, his brother meant to convey that he did not believe that the applicant was gay and that he would ‘make him’ into a straight man. The applicant also stated that his uncle threatened him by the use of abusive language towards him.
[3] By which the Tribunal understood the applicant to mean his mother.
When asked by the Tribunal whether he had had threats of violence made against him, the applicant stated that his uncle and his brother had threatened violence against him. When asked whether he had experienced violence, the applicant stated that he had not, although he immediately contradicted this statement saying that his brother had ‘hit’ him once, and he reiterated that his sexuality had caused a ‘big fight’ with his family.
The applicant stated that he had last spoken with his brother shortly after his arrival in Australia and that he had last spoken to his mother in 2017. He stated that he has had no contact with his family since 2017.
When asked whether he has a fear of violence other than from his family, the applicant stated that others in his village will find out and ‘be on his uncle’s side’. The applicant stated that they would ‘beat him’ and ‘abuse him’. He stated that his uncle threatened that he should ‘become a man or he (his uncle) would kill him (the applicant)’.
When asked whether he could seek protection from the police, the applicant stated that in Punjab ‘everybody knows’ that the police are corrupt and would accept monetary payments to take sides. He stated that the police would not do anything to help him without money.
The Tribunal asked the applicant about relocating in India and suggested that he could move to Mumbai or Delhi, each of which have a more open and tolerant community. As an example, the Tribunal discussed with the applicant an article from the Times of India regarding the 2019 ‘Queer Pride Parade’ held in Delhi.[4] The applicant stated that both Delhi and Mumbai were ‘expensive cities’ and that he had no financial help or assistance and that he could not support himself to live in those locations.
[4] See: (accessed 15 March 2020).
When asked whether he would feel safe in Delhi, the applicant stated that he knew no-one in Delhi and that it would not be difficult for his brother or his uncle to find him there. When pressed by the Tribunal the applicant stated that his brother and uncle had contacts and friends in those cities.
When asked whether the police in Delhi could protect him from threats of violence, particularly in light of the occurrence of the annual ‘Queer Pride Parade’, the applicant stated that the police would provide protection ‘one time’, but was adamant that his family would find him eventually.
The Tribunal discussed with the applicant the following country information taken from the DFAT Report:
3.55 Until a September 2018 Supreme Court judgement, Section 377 of the Penal Code criminalised homosexuality. LGBTI people claimed that, while the law was not regularly enforced, it was used as a way to extract bribes or as a means of extortion. Homosexuality is now legal in India but LGBTI groups say this has not changed societal views on LGBTI people.
…
3.60 DFAT assesses that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.
The applicant stated to the effect that, since arriving in Australia he rarely followed Indian news. When asked for his reaction to the Supreme Court’s decision, the applicant stated to the effect that the ‘government’ might ‘make a rule’ but that that would not change society’s views.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. Overall, the Tribunal is persuaded by the applicant’s oral testimony that he is a homosexual male. In particular the Tribunal is persuaded that:
a.the applicant first began to encounter his homosexuality at or around the age of [age];
b.he expressed his sexual preferences to a school friend and his ‘news’ was ‘leaked’ to other students and to his family;
c.his sexuality caused a ‘big fight’ with his family which, at times, included the threat of violence;
d.the applicant became sexually active after his arrival in Australia, he lived as a homosexual male here and he has had homosexual partners.
The Tribunal also accepts that the applicant wishes to stay in Australia to make a future for himself.
However, the Tribunal considers that the applicant’s evidence was vague and lacking in detail in respect of his claims to holding a well-founded fear of persecution. The applicant’s only direct evidence of experiencing violence was the incident he described with his brother and the threats made by his uncle. The applicant’s responses to the Tribunal’s questions in respect of his fears were brief and he offered no detail.
As to his more ‘general’ fears, the applicant also tended to speak less from personal experience but rather from a generalised fear of negative social attitudes, ostracism and judgement in his home country. Despite being pressed for detail, the applicant was unable to describe his fears other than in vague generalisations.
Country information
The Tribunal has read and had regard to the DFAT Report, as discussed with the applicant, and has read and had regard to the UKHO Note and in particular to the following paragraphs:
In respect of the State Treatment of gay men:
In the Country Guidance case MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC) (heard on 24 February 2012 and 10 October 2013 and promulgated 12 February 2014), the Upper Tribunal (UT) held that ‘Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual activity’, however, ‘Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.’ (para 174b).[5]
[5] UKHO Note – India, para 2.4.5
…
In MD the UT held that:
Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police...; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory or which would otherwise reach the threshold required for protection under the Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3 ECHR.’ (paragraph 174c).[6]
[6] UKHO Note – India, para 2.3.9
…
In general, state treatment of LGBT persons, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm.[7]
In respect of societal treatment of gay men.
In MD, the UT held that ‘Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow’ (para 174d).[8]
The UT also found that some persons who are, or are perceived to be, same-sex oriented males, suffer ill treatment, extortion, harassment and discrimination from the general populace, but that the prevalence of such incidents is not such that there is, in general, a real risk of persecution or serious harm for an openly same-sex oriented male (paragraph 174c).[9]
…
In general, the societal treatment of LGBT people in India, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm.[10]
Cumulative claims
[7] UKHO Note – India, para 2.4.13
[8] UKHO Note – India, para 2.4.14
[9] UKHO Note – India, para 2.4.15
[10] UKHO Note – India, para 2.4.18
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to India. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to India now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to India. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he will suffer significant harm.
Overall conclusion:
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.
Damian Creedon
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.
…

[2020] AATA 700

16 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice