2007571 (Refugee)

2007571 (Refugee) [2020] AATA 5123 (6 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2007571

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Christopher Smolicz
DATE:6 November 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 6 November 2020 at 2:51 PM

CATCHWORDS
REFUGEE – protection visa – Bangladesh – particular social group – love marriages – obtaining parents’ consent to the marriage – family disapprove of the marriage – financial assistance for studies – fear or forced separation – return visits to Bangladesh – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 9 April 2020 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
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 (DFAT) (DFAT Country Information Report Bangladesh 22 August 2019) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The first named applicant (the applicant) is [age] years old. He was born in [his home town in] Narayanganj, Bangladesh. The second named applicant is [age] years old and was born in [her home town in] Comilla, Bangladesh. They married in Bangladesh in June 2013 and are both of the Muslim faith.
The applicant arrived in Australia [in] July 2012 travelling on a [student] visa. [In] April 2014 he was joined by the second named applicant who travelled to Australia as his dependent spouse. The applicants were subsequently granted further student visas and on 8 February 2016 they were granted a subclass 485 Temporary Skilled Provisional visa which was valid until 8 February 2018.
Since arriving in Australia, the applicant has returned to Bangladesh on the following occasions:
·     [February] 2013 to [March] 2013
·     [Between dates in] June 2013
·     [Between dates in] April 2015
·     [February] 2016 to [February] 2016
·     [April] 2016 to [May] 2016
The second named applicant has returned to Bangladesh on the following occasions since she arrived in Australia:
·[Between the same dates in] April 2015
·[June] 2016 to [August] 2016.
The applicants applied for the protection visas on 7 February 2018. The second named applicant did not make her own claims for protection and is seeking protection as a member of the same family unit as the first named applicant under s.36(2)(b) of the Act.
Issue
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he entered a “love marriage” with the second named applicant and fears harm from her father.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of substantive claims
The applicants took part in a hearing before the Tribunal on 21 October 2020.
The applicant said he lived at home with his parents in Bangladesh when he was attending school. When he was in his final year of schooling he commenced living with his sister and brother-in-law. His brother-in-law is a businessman in Bangladesh and assisted him financially to travel and study in Australia.
He first met the second named applicant in 2009 at his sister’s house. The second named applicant is his brother-in-law’s [relative]. They commenced dating, but he did not tell his family at the time.
In 2012 he travelled to Australia to study a [specified course]. He continued to be in a long-distance relationship with the second named applicant when he was in Australia. About 6 months after he arrived in Australia, he returned to visit his family in Bangladesh and his sister and brother-in-law found out he was in a relationship with the second named applicant. He does not know how they found out about the relationship.
The brother-in-law had some bad business dealings with the second named applicant’s father and did not approve of the relationship and told him to end it.
The applicant said his parents were “neutral” about the relationship and were not negative but deferred to the views of the brother-in-law. The applicant said he never formally asked his parents to consent to the marriage.
The applicant said he wanted to marry the second named applicant but it was difficult because he had to keep it secret from his parents. He asked the second named applicant’s father for his consent. The father-in-law initially did not approve but subsequently consented to the marriage on the condition that the applicant brings the second named applicant to Australia and convinces his parents to support the marriage. He was also required to comply with Muslim tradition (Mahr) and provided the bride with a gift which was agreed to be BDT 50,000,000 (approximately $84,000 AUD).
The applicant returned to Bangladesh in June 2013 and secretly married the second named applicant. The father-in-law paid for the wedding and the applicant purchased the ring. He did not tell his parents about the wedding and only the second named applicant’s family attended. One of his friends was a witness and he told him to keep it secret.
The applicant provided a copy of his marriage certificate from the ‘Government of the People’s Republic of Bangladesh Office of the Muslim Marriage Registrar’. This document lists both applicants’ names, dates of births and parents’ names. This document also states they were married [in] June 2013.
The applicant provided photographs depicting both of them on the day of their wedding in traditional clothing and a photo of the second named applicant with her parents taken on the day before the wedding “gave holoud”. The Tribunal notes that according to the delegate’s decision when the applicant’s wife applied for a visa to travel to Australia, she provided wedding photographs depicting a traditional wedding with a number of guests. The applicant said it was a small religious celebration held in the father-in-law’s home. The Tribunal finds it unusual that the applicant would have photos of the wedding if he wanted to keep it secret.
The Tribunal questioned the applicant about how the father-in-law found out that he had not obtained the consent of his parents to the marriage. The applicant said that in November 2011 his brother-in-law telephoned him in Australia and told him that he has found out about the marriage. The brother-in-law said he felt betrayed because he has been paying for the applicant’s studies in Australia and told him to end the relationship and he was not welcome at home. He told the applicant not to come back to Bangladesh and he stopped providing financial assistance. The applicant said he has not spoken to the brother-in-law since this date. He does not know how the brother-in-law found out. He suspects his sister told his parents. His parents called him that day because the sister had told them he was married. His mother has recently passed away. His father wants him to follow the brother-in-law’s wishes.
The Tribunal observed that it seemed strange that the brother-in-law only found out about the marriage in 2017 after they had been married for four years. The Tribunal also observed that the applicants had returned together to Bangladesh in April 2015 and it was strange that his family did not find out about the marriage at this time. The applicant maintained that his parents did not know about the marriage and all his friends knew it was a secret and did not say anything. The applicant said when he returned to Bangladesh in 2015 with his wife they lived separately, and he went to his brother-in-law’s home and the second named applicant went to stay with her family.
The Tribunal explained to the applicants that it must assess the claims for protection looking to the reasonably foreseeable future. The Tribunal noted that they had now been married for over seven years and asked why they feared returning to Bangladesh.
The applicant said that he is no longer welcomed by his family in Bangladesh. The father-in-law expected him to convince his parents to accept the marriage and was angry and will torture him. He fears the father-in-law will make sure they separate if they return to Bangladesh. The father-in-law will demand that he pay the Mahr which is a large amount of money.
The applicant conceded that he incorrectly referred to the father-in-law as a politician in his statement of claim. He confirmed that the father-in-law works for the local government. He does not fear his father-in-law will physically harm him if he returns to Bangladesh. The applicant said he does not have the money and the father-in-law will initiate legal proceedings and he will go to jail if he cannot pay the money. The Tribunal notes that the payment of money was a civil dispute. After further questioning the applicant conceded that no proceedings had been initiated and he had not spoken to the father-in-law and was speculating that he would issue legal proceedings to recover any money.
The Tribunal noted that the word torture has a specific meaning in the context of protection law and asked the applicant to explain what he meant by the word. The applicant said that he would suffer mental torture and anguish if returned to Bangladesh. The applicant conceded that he did not fear physical harm from anyone in Bangladesh because of his marriage to the second named applicant.
The applicant also provided a reference letter from [Mr A], his employer in Australia. The Tribunal has considered the letter and notes that the applicant is highly regarded by his Australian employee. The employer claims to know about the secret circumstances of his marriage. He wrote “…[The applicant] explained to me the complexities and challenges that faced him back in his former home in Bangladesh because of the choices that he and his wife had made. At this point the marriage was still being kept from their respective families several years later.” The Tribunal finds the information provided by [Mr A] is inconsistent with the applicant’s evidence that his father-in-law knew about the relationship, gave his consent to the marriage and paid for the wedding. The Tribunal has considered the letter but given this information little weight.
The Tribunal has also considered the brief country information provided by the applicant taken from Human Rights Watch and newspapers about the political and economic situation in Bangladesh and the difficulties faced by women.
Country information
In assessing the applicant’s claims the Tribunal has had regard to the following extracts from a country information report prepared by the Immigration and Refugee Board of Canada which examines arranged marriage practices in Bangladesh:
According to a 1988 United Nations study entitled First Marriage: Patterns and Determinants, in societies where the extended family prevails, the economic interests involved [in marriage] are ... important to large groups of people ..., [so] decisions pertaining to the formation of marriages are usually the responsibility of the family rather than of the bride and bridegroom themselves. ... through arranged marriage ... the kinship group has the ability to maintain control over its members and preserve or improve its assets and survival (UN 1988, 9).
Because of the important economic interests involved in the extended family, whom to marry is generally subject to great family and parental constraints. These constraints have implications for the social groups within which a marriage partner is sought and the particular individual selected as bride or bridegroom. The economic function as well as patterns of socialization strongly influences these selections, since they are very important in maintaining or improving the family's economic basis and its alliances with other kin groups. As a result, social criteria prevail in the selection of marriage partners ... (ibid.)
…
Sources indicate that in Bangladesh an arranged marriage may or may not involve the consent of the bride and groom (New Left Review Mar.-Apr. 1988, 101; UN 1990, 199), and others report that it is "common" for the bride and groom not to have met until the day of their marriage (The Ottawa Citizen 20 Sept. 1997; IPS 1 Apr. 1997; Abdullah and Zeidenstein 1982, 73-74). Even those marriages described as 'free choice' or love marriages often mean arranged-with-consent rather than no parental involvement (UN 1990, 200). Some arranged marriages may include a "courtship period" of several months duration to allow the couple to adjust and the relationship to mature (UN 1988, 48; The Ottawa Citizen 20 Sept. 1997). A hybrid of arranged and free choice is also possible: the couple "meet and agree on the match, informally, then parental approval is obtained and the family goes through the motion of arranged marriage to conform to tradition" (UN 1988, 48). Several sources indicate that professional matchmakers or marriage brokers are often involved in the matching process (White 1992, 99; Ahmed 1987, 2; UN 1988, 48;).
Rashida Nawaz, president of the Bangladesh-Canada Association in Ottawa, indicates that about 70 per cent of marriages in urban Bangladesh are arranged and about 30 per cent are love marriages in which the couple meet independently of their parents (23 Dec. 1997). She states that while she and several siblings had arranged marriages, several other of her siblings had love marriages. Nawaz, who has conducted research on marriage practices in Bangladesh and indicates that her comments primarily apply to the Muslim community, notes that common law or common law-equivalent situations are almost non-existent in Bangladesh, even in the cities. According to Nawaz, there is no standard method of matchmaking in Bangladesh; factors such as class, geographic location and religious community all affect how one's spouse is selected. In general marriage within kin groups or communities is less of a priority in Bangladesh than in Pakistan, and less important in urban areas than in rural. According to Nawaz, friends and relatives play the most important role in finding appropriate matches for marriageable children. Communities are fairly tightly knit in Bangladesh, even in urban areas, and people know who is available, as well as their age, education and income potential, and are always on the lookout for appropriate matches. Because of their social networks women play an important role in finding matches, states Nawaz, and adds that in every community there are people who take a particular interest in these sorts of matters…..When arranging a marriage the parents generally try to find the best possible match for their children, states Nawaz, although she concedes that the wishes of the parents may not always accord with those of the bride and groom. In the case of love marriages, even if the parents do not necessarily agree with the match, they will generally comply with the couple's wishes. A love marriage can take the form of a religious ceremony arranged by the parents, states Nawaz, or a civil ceremony at the office of the local qazi (judge). Some studies indicate that while love marriages are accepted in Bengali society, they are often "frowned on" and "discredited as being socially dishonorable and risky" (Blanchet 1996, 238; White 1992, 108). According to Nawaz, while this may be the case in the countryside, where virtually all marriages are arranged, love marriages were "not uncommon" among the urban middle class even 20 years ago (23 Dec. 1997).[1]
[1] Canada: Immigration and Refugee Board of Canada, Bangladesh: Information on arranged marriages, including information on the matching process and the role of the matchmaker, 1 January 1998, BGD28420.EX, available at: 3 November 2020]
The Tribunal also notes that Islamic marriages have to comply with traditions and religious practices. Reports confirm that the actual “Muslim wedding is known as a nikah. It is a simple ceremony, at which the bride does not have to be present so long as she sends two witnesses to the drawn-up agreement. Normally, the ceremony consists of reading from the Qur’an, and the exchange of vows in front of witnesses for both partners. No special religious official is necessary, but often the Imam is present and performs the ceremony. He may give a short sermon. There are certain things which are basic to all Muslim marriages. Marriages have to be declared publicly. They should never be undertaken in secret. The publicity is usually achieved by having a large feast, or walimah - a party specifically for the purpose of announcing publicly that the couple are married and entitled to each other.” [2] According to classical Islamic law two male witnesses are required for a valid marriage.[3]
[2] Hossain, Kamrul (2003). In Search of Equality: Marriage Related Laws for Muslim Women in Bangladesh. Journal of International Women’s Studies, 5(1), 96–113. Available at: fear of persecution

The applicants provided a religious certificate issued by the Office of the Muslim Marriage register in Bangladesh. The applicant confirmed at the hearing that the Islamic wedding ceremony (Nikah) was carried out by an Iman. The Tribunal accepts that the applicant and second named applicant married in Bangladesh in June 2013.
The applicant claims he fears returning to Bangladesh because he will not have any support from his family who disapprove of his marriage. He fears the father-in-law will force him to end his marriage and separate from the second named applicant because he has not obtained his parents consent to the marriage. He fears he will have to pay the Mahr and if he does not pay the money his father-in-law will commence legal proceedings.
The Tribunal has had regard to the applicant’s evidence and finds that neither he nor his wife have been threatened with physical harm by the father-in-law or the applicant’s family. The applicant conceded at the hearing that his father-in-law was not a well-known politician in the current government as originally claimed in his statement. The applicant gave evidence at the hearing that he does not fear physical harm if he returns to Bangladesh because of the circumstances of their marriage. As discussed with the applicant at the hearing, the Tribunal finds the essential or significant reason for the applicant’s fear of persecution in Bangladesh is because of a personal family dispute with his father-in-law over the circumstances surrounding his marriage. The Tribunal finds that the applicant does not fear persecution in Bangladesh for any of the reasons in s.5J(1)(a) of the Act.
Credibility of claims
Secondly, the Tribunal did not find the applicant’s evidence about the circumstances of his marriage to be credible. The Tribunal does not accept that the applicants took part in a secret Islamic marriage that was only attended by the second named applicant’s family and the applicant’s parents were not told of the relationship or the marriage. In making this finding the Tribunal had the following concerns with the applicant’s evidence.
The Tribunal finds it unusual that the applicant would arrange a secret marriage in Bangladesh in circumstances where he did not even try to seek to obtain his parents’ consent to the marriage. When questioned at the hearing the applicant claimed he did not seek the consent of his parents because he was influenced by the brother-in-law’s views and his parents were old. The Tribunal did not find the applicant’s response persuasive or credible. The Tribunal further finds the applicant’s evidence is not consistent with country information which suggests that the parents’ consent is important even in the context of a “love marriage” that was not arranged by the family.
The Tribunal has had regard to country information detailed above and finds Muslim marriages would usually have to be declared publicly and they should never be undertaken in secret. The Tribunal finds it unusual that the applicant’s father-in-law would consent to a secret Islamic religious marriage in circumstances where the applicant’s parents had no knowledge of the relationship and did not give any consent to the marriage. This Tribunal finds this evidence does not seem consistent with the country information detailed above.
The Tribunal finds it unusual that the second named applicant’s father would demand a Mahr in the amount of $84,000 from the applicant in circumstances, where he was still studying in Australia, had no full-time employment, no assets and did not have his parents’ consent to the marriage.
The Tribunal finds unusual that the father-in-law would give his consent to the marriage on the condition that the applicant had to convince his parents to accept the marriage after the event. According to his evidence he kept the marriage secret until they found out in November 2017. The applicant gave no evidence about his efforts to try to convince his parents to consent to the relationship after they married.
Importantly, the Tribunal finds the applicant’s evidence about the father-in-law’s angry reaction to the news of the marriage and that his parents had not given their consent unusual, inconsistent and lacking in credibility. The Tribunal does not find it consistent that the father-in-law would be angered in 2017 that the applicant’s parents had not consented to the marriage in circumstances where both the applicants returned to Bangladesh in 2015 and lived separately and kept the marriage a secret and the second named applicant’s father took no issue with this at the time.
In assessing the credibility of the applicants’ claims for protection the Tribunal has also had regard to the timing and delay of the protection visa application. The applicants married in June 2013 and have been living together in Australia since April 2014 on temporary visas. They have now been married for over seven years. According to the applicant’s evidence his parents found out about his marriage in November 2017 and this caused the conflict with the father-in-law. The Tribunal notes that the applicants did not apply for protection until 7 February 2018, the day before the Temporary Skilled Provisional visa expired. When the Tribunal raised its concerns with the applicant at the hearing the applicant said he was hopeful to get a business sponsorship so that he could remain in Australia but did not have enough money to apply for the business visa at the time. He obtained migration advice and applied for protection. The Tribunal asked the applicant if he applied for the protection visa because he feared harm in Bangladesh or because he wanted to remain in Australia. The applicant said he wanted to remain in Australia for both reasons. He is still hopeful that he will get business sponsorship.
In conclusion, the Tribunal has had regard to the inconsistencies in the evidence, the unusual nature of the agreement with the father-in-law and the timing of the protection visa application and finds that the applicant has manufactured his evidence about the family dispute so that he can remain in Australia.
In conclusion, the Tribunal is not satisfied that there is a real chance that if the applicant returns to Bangladesh he will face serious harm from his father-in-law or any other person because he married his wife in secret and without his parents’ consent. The Tribunal finds the applicant’s fear of persecution is not well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
As discussed above, the Tribunal did not find the applicant’s evidence about the circumstances of his marriage to be credible. The Tribunal does not accept that the applicants took part in a secret Islamic marriage in Bangladesh that was only attended by the second named applicant’s family and the applicant’s parents were not told of the relationship or the marriage. The Tribunal does not accept that the applicant’s father-in-law or any other person seeks to cause him or his wife significant harm because he has not obtained his parents’ consent to the marriage or for any other reason.
In conclusion, for the reasons stated above, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm because of the circumstances of his marriage to the second applicant.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal therefore also finds that the second named applicant does not satisfy s.36(2) based on 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 second named applicant does not satisfy the criterion in s.36(2).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
Member

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

[2020] AATA 5123

6 November 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction