2003912 (Refugee)

[2023] AATA 1991

2003912 (Refugee) [2023] AATA 1991 (10 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBERS:  2003912 and 2111569 

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Wayne Pennell

DATE:10 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicant protection visas.

Statement made on 10 March 2023 at 3:30pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member of BNP – protested against Awami League – Awami League filed false murder case against applicant – accused of involvement in violent protests – Muslim – would be suspected of supporting Jamaat e Islami political group – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’). The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there was a real risk he would suffer significant harm. Nor was the delegate satisfied that the applicant was a refugee as defined by the Act[1] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[2] 

   [1]Migration Act 1958 (Cth), s 5H.

   [2]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

2. The applicant was born in Bangladesh and is currently aged [age].  His father remains living there, as does [siblings] and [half-siblings].  His mother passed away in 2009.  He has limited education and attended primary school for five years and then a further year at secondary school.  Since his arrival in Australia, he has married.  He and his wife now have a child who is aged [age].  The circumstances of his marriage are discussed later in these reasons. 

3. In regard to the circumstances that led the applicant arriving in Australia, in March 2007, at the age of [age], he lawfully departed Bangladesh and travelled to [Country 1].  He remained living and working in [Country 1] for five years.  Sometime in late 2012, he met a person in [Country 1] who told him about coming to Australia.  He later lawfully departed [Country 1] and travelled to [Country 2] where he boarded a boat and travelled across the ocean to Australia.  He is recorded within the Department’s records as an unauthorised maritime arrival after entering Australia in an area of water at Ashmore Island.  He was then taken to an immigration detention centre in Darwin [in] February 2013.  The Department’s records also show that he was later issued with a bridging visa and released into the community on 21 May 2013.

4. On 18 February 2016, the Department invited the applicant to apply for either a temporary protection visa or a safe haven enterprise visa (‘SHEV’).  Subsequently, on 23 August 2016, the applicant lodged with the Department his SHEV application.

5. That application was later assessed by the delegate, and after carefully considering all of the material relevant to the applicant’s application, the delegate was not satisfied there were substantial grounds for believing that there was a real risk he would suffer significant harm if he returned to Bangladesh and his application was refused.[3] 

   [3]Delegate’s decision of 24 May 2017.

6. When the applicant was notified of the delegate’s decision, the Department informed him that because he was considered as a ‘fast track applicant’ under the Act, the delegate’s refusal decision had been referred to the Immigration Assessment Authority (‘IAA’) for review.[4]  That IAA review was subsequently undertaken, resulting in the affirming of the delegate’s decision.

   [4]Pursuant to the Migration Act 1958 (Cth), Part 7AA.

7. Subsequently,[5] the Full Federal Court handed down a judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 where the Court determined that the appointment of the proclaimed port in the Territory of Ashmore and Cartier Islands as a proclaimed port was invalid.

   [5]On 6 August 2018.

8. That decision meant that any person who arrived in Australia via the Territory of Ashmore and Cartier Islands between 23 January 2002 and 1 June 2013, and did not subsequently enter Australia at an excised offshore place, were not unauthorised maritime arrivals.  The effect of the Court’s judgment was that the applicant is not an unauthorised maritime arrival, and therefore not a fast track applicant, and the delegate’s decision to refuse his SHEV application was not a fast track decision.[6]  Instead, it was a reviewable decision and able to be reviewed by the Tribunal.[7]

   [6]Migration Act 1958 (Cth), s 5(1).

   [7]Migration Act 1958 (Cth), s 411.

9. The applicant’s SHEV application was then re-assessed by the Department with a determination being made that he was not a ‘fast track applicant’ as earlier found.[8] The Department invited the applicant to seek a review of the delegate’s decision pursuant to the Act. Subsequently, the applicant lodged an application with the Tribunal to review the delegate’s decision with respect to his SHEV application. Accompanying that application was a copy of the delegate’s decision.[9]    

   [8]On 24 February 2020.

   [9]On 28 February 2020.

10. Sometime later, the applicant lodged with the Department an application for a protection visa.[10]  The claims specified in that application mirrored the claims made in his SHEV application and when the application was later assessed by the delegate, the conclusion reached was to refuse his application.[11]  He then lodged an application with the Tribunal to review the delegate’s decision.[12]  Accompanying that application was a copy of the delegate’s decision.

    [10]Application lodged on 14 October 2010.

    [11]Delegate’s decision made on 12 August 2021.

    [12]Application lodged with the Tribunal on 31 August 2021.

11. At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to his applications, but it was unable to make a favourable decision on that information alone.[13]  He was invited to give oral evidence and present arguments at a hearing.[14]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present his arguments.

    [13]The Tribunal advised the applicant on 18 January 2023.

    [14]The Tribunal’s review hearing was listed for 16 February 2023.

12. The hearing was originally scheduled for 16 February 2023, however, at the request of the applicant’s representative, Abu Siddque from Abu Legal, the hearing was postponed.  The representative advised that he was unavailable on the scheduled day of the hearing, and it would suit him if the hearing was rescheduled to another date.  In accordance with that request, the Tribunal rescheduled the hearing.[15]  The Tribunal notes that without any explanation for his absence, the representative did not attend the rescheduled hearing with the applicant. 

    [15]Hearing rescheduled for 9 March 2023.

    CRITERIA FOR A PROTECTION VISA

13. The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[16]  That is, the applicant 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.

    [16]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

14. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[17]

    [17]Migration Act1958 (Cth), s 36(2)(a).

15. 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.[18]  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.[19]

    [18]Migration Act1958 (Cth), s 5H(1)(a).

    [19]Migration Act1958 (Cth), s 5H(1)(b).

16. The Act also provides that 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, and 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.[20] 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 the Act, which are extracted in the attachment to this decision.[21]

    [20]Migration Act 1958 (Cth), s 5J(1).

    [21]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

17. If a person is found not to meet the refugee criterion in the Act,[22] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[23] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[24]

    [22]Migration Act 1958 (Cth), s 36(2)(a).

    [23]Migration Act 1958 (Cth), s 36(2)(aa).

    [24]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

18. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[25]

    [25]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

19. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[26]

    [26]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

20. The applicant claims to be a citizen of Bangladesh.  Since his arrival in Australia, he has generally been consistent regarding his identity and place or origin.  In support of his identity, he provided uncertified copies of his birth certificate and a certificate from Chairman, Daulatpur Manikganj Union attesting to his identity.  The Tribunal is satisfied that there is no reason to consider that the documents provided are bogus documents.[27]

    [27]Migration Act 1958 (Cth), s 5(1).

21. Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[28]  The Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[29]

    [28]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

    [29]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

22. In accordance with Ministerial Direction No. 84 made under the Act,[30] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [30]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS

23. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Bangladesh, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[31]

    [31]Migration Act 1958 (Cth), s 36(2).

24. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed.  Similarly, because the applicant claims he faces 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 the statutory elements are made out.

25. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[32]  Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[33]

    [32]Migration Act 1958 (Cth), s 5AAA.

    [33]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    APPLICANT’S CLAIMS AND THE EVIDENCE

26. The applicant claimed that when he lived in Bangladesh, he had many friends in the Bangladesh Nationalist Party (‘BNP’) political party.  The BNP was, and still is, the opposition party to another political party in Bangladesh known as the Awami League.  He claimed that in 2006, when he was just [age] years old, he accompanied his friends to protests in Dhaka in opposition to the Awami League.  He claimed that the protests he attended would often become violent and there were many fights between BNP and the Awami League in Dhaka in October, November and December 2006.  He attended those protests because he supported the BNP and wanted to oppose the Awami League.  He claimed that his father was very worried about him  attending the protests because they regularly became violent, and many people died. 

27. The applicant went on to claim that he recalled his father telling him that there was a murder case filed against the applicant by the Awami League. He also claimed that his father showed him the notice which confirmed this.  The notice accused the applicant of protesting and being involved with protest violence.  He said that his father was told by the Awami League that the case would be dismissed if the applicant joined the Awami League.

28. The applicant claimed that in January 2007 the Bangladesh Army took control of the country and started cracking down on political activists on both sides.  Because his father had earlier told him of the murder case against him, this scared him.  He said that the army detained people who were involved in the political unrest and took them away.  He feared being captured and was afraid that he would be tortured because of that murder case.  He claimed that his father arranged a [Country 1] visa for the applicant and sent him out of Bangladesh. 

29. The applicant claimed that he arrived in [Country 1] [in] March 2007 and found [employment].   He claimed that his employer was an abuser and threatened to send the applicant back to Bangladesh.  He claimed that after spending five years in [Country 1], he borrowed money from family and friends and paid someone to help him get to Australia.  He lawfully left [Country 1] and travelled to [Country 2].  

30. The applicant claimed that if he was forced to return to Bangladesh, he feared that he would be harmed by the Awami League who are currently in power in Bangladesh.  He said he feared that he would be tortured, first by the cadres of Awami League, and then be subjected to torture and humiliation in custody if they recall his previous murder case; or put a false new case against him.  He also claimed that he feared that the murder case against him would be prolonged, and he would be held in custody undergoing more torture and humiliation before he was forced to admit to crimes he did not commit.

31. The applicant also claimed that a further fear he held related to him being a Muslim.  He said that if he did to return to Bangladesh, the Awami League would likely mistake him for a supporter of Jamaat e Islami, who is the government’s opposition.  He went on to claim that he feared he would be persecuted because the Awami League would believe that he was a supporter of Jamaat e Islami political group.  Because the Awami League fear Islamic terrorism, he dreaded that because on his appearance  he would be mistaken for a terrorist.   

32. In regard to who the applicant thought would be the perpetrators of harm to him, and whether he could relocate to another part of Bangladesh for safety, he said that the Awami League would inflict the harm upon him and relocating to another area would not help as the Awami League are in power.  He also claimed that the current authorities would not protect him as they would be the perpetrators of the harm.

33. The applicant concluded his claims by saying that he feared that if he was forced to return to Bangladesh, he may be subjected to harm including torture, cruel or inhumane treatment or punishment and/or degrading treatment or punishment because of his previous support of the BNP political party; along with the previously filed against me and his physical appearance and active Muslim faith.

34. In summary, the applicant’s claims for protection are:

    ·He was a member of the BNP and he attended protests against the Awami League with his friends;

    ·The Awami League filed a false murder case against him, and he was scared of being captured and tortured due to his false murder case;

    ·He was accused of protesting and being involved in violent protests; and

    ·He is a Muslim, and the Awami League would believe that he supported the Jamaat e Islami political group. 

    Applicant’s evidence at the review hearing

1. When asked to explain to the Tribunal his claims and why he cannot return to Bangladesh, or what it was that was preventing him from returning, he outlined the environment in Australia where the citizens were friendly, and the people were well mannered as a reason he does not want to go back. 

2. He then went on to disclose to the Tribunal that he was now married.  He met his wife in 2018 when she travelled to Australia from Bangladesh to visit her sister.  They married and she returned to Bangladesh.  In 2019, their child was born in Bangladesh.  His wife and child have since returned to Australia on visitor visas, and they stayed for three months.  They returned to Bangladesh late last year.

3. Specifically outlined to him during the hearing were the claims that he made in his application as to why he was seeking a protection visa.  In responding to the Tribunal’s questions about whether there was any basis to those claims, he disclosed that although he was a BNP supporter, he had never been a member of that political party but was a supporter of BNP and had attended protests.  When asked about his claim that the Awami League filed a false murder case against him, he told the Tribunal that this claim was not true.  There was no case filed against him, however he expressed a concern and speculated that he may be harmed in the future if someone did make a false claim against him. 

4. When specifically asked by the Tribunal whether his claim that he had a well-founded fear that if he was forced to return to Bangladesh, he would be persecuted and subjected to harm including torture, cruel or inhumane treatment or punishment and/or degrading treatment or punishment.  His response was that he did not have that fear.

   Tribunal findings

5. In respect to the applicant being a Muslim, notwithstanding the Tribunal accepting this claim, it does not accept that he is at risk of harm because he is a Muslim.  Available for the Tribunal’s consideration is significant and credible country information in relation to Bangladesh.  In a recent DFAT Country Information Report on Bangladesh, it references a 2021 US Department of State International Religious Freedom Report on Bangladesh which provides that 89 per cent of the population of Bangladesh is Sunni Muslim and 10 per cent is Hindu.  The remaining population is mostly Christian or Buddhist.[34]  The country information does not support any hypotheses of the applicant being harmed because he is a practising Muslim, although the Tribunal does recognise that the only occasion where a Muslim person would face a high risk of violence was if they converted Christianity (or any other religion), but the risk would then depend on individual circumstances.[35]  There is no evidence to suggest that the applicant has, or has contemplated this. 

   [34]The DFAT Country Information Report, Bangladesh, 30 November 2022, page 16, paragraph 3.33.

   [35]The DFAT Country Information Report, Bangladesh, 30 November 2022, page 20, paragraph 3.60.

6. When giving careful consideration to the applicant’s comment at the hearing that although there was never a murder case filed against him by the Awami League, he was concerned that he may be harmed in the future if someone did make a false claim against him.  The Tribunal considered his comment and finds that there is no basis to any speculative fear.  When carefully assessing the fictional claim which the applicant has always maintained regarding the Awami League filing a false murder case against him, it is questionable as to the credibility of the applicant and whether that speculation he expressed should be accepted. 

7. In respect to any speculative claim, the Tribunal is guided by the High Court’s determination in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, where it was established that mere speculation cannot establish a well-founded fear.  A fear of persecution is not well founded if it is merely assumed or of it is mere speculation.  The High Court went on to find:

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[36]

   [36]     MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

8. Further to his speculative claim, the Tribunal finds this to be a fresh or new claim, and the Act provides that because the applicant raises a claim that was not earlier raised with the delegate, the Tribunal is to draw an unfavourable inference as to the credibility of the claim, if the Tribunal was satisfied the applicant did not have a reasonable excuse why the claim was not raised, or the evidence was not presented earlier. The Tribunal finds that the applicant does not have a reasonable excuse for not raising this speculative claim earlier with the delegate and the claim is rejected.

   Refugee findings

9. The applicant claims he was a member of the BNP and he attended protests against the Awami League with his friends.  Although the Tribunal finds that he was a supporter of the BNP political party, and had attended protests, the evidence does not support his claims that he is at risk of harm because of those claims.

10. He further claimed that he left Bangladesh because the Awami League had fabricated a murder case against him, he feared persecution and if he was captured, he would be subjected to torture.  The applicant disclosed to the Tribunal that this claim is fictional, there was never any murder case filed against him by the Awami League.  On the basis of the applicant’s own disclosure, the Tribunal rejects that claim. 

11. He further claimed that he was a Muslim, and the Awami League would believe that he supported the Jamaat e Islami political group.  AS already found by the Tribunal, this claim is rejected as the country information does not support his claim.  When considering the questionable credibility of the fictitious nature of his claims, the Tribunal rejects the claim that because of his religious faith, he will be persecution in Bangladesh.

12. For completeness, having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s applications, the Tribunal finds that there is not a real risk that the applicant would suffer serious harm if he returned to Bangladesh because of any of the claims he made. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

    Complementary protection considerations

13. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given his disclosures that his claims were fictional, the Tribunal does not accept that if he returned to Bangladesh now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.

    Conclusion: refugee criterion

14. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

    Conclusion: complementary protection criterion

15. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, he will be exposed to a real risk of suffering significant harm.

    Overall conclusion

16. 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 section 36(2)(a) of the Act.

17. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

18. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.

    DECISION

19. The Tribunal affirms the decisions not to grant the applicant protection visas in case numbers 2003912 and 2111569.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    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.

    …