2105061 (Refugee)

2105061 (Refugee) [2024] AATA 4392 (8 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)
CASE NUMBERS:  2105061 & 2405243
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Mara Moustafine
DATE:8 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 September 2024 at 10:08am
CATCHWORDS
REFUGEE – protection visa – Nepal – arrival by sea – considered as unauthorised maritime arrival at the time – statutory bars and court judgements affecting status and applications – reviews of two valid applications combined – claim of fear of harm from Maoists for not paying demanded donations discontinued – fear of harm from smugglers for publishing report about their activities – vague, inconsistent and implausible claims and evidence, and no copy of report provided – visa applications to other countries and passport with different details not declared – authenticity of documents – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 46A, 65, 91K, 427(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DBB16 v MIBP [2018] FCAFC 178
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo (1997) 191 CLR 559
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATIONS FOR REVIEW

These are applications for review of two separate reviewable decisions in respect of the same non-citizen, made by delegates of the Minister for Home Affairs on 10 August 2022 and 22 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of Nepal and is [Age] years old.
According to Departmental records, the applicant arrived in Australia [in] May 2013 by boat at Darwin and was considered to be an unauthorised maritime arrival (UMA) at the time. He was granted a UJ-449 visa on 11 July 2013. On 4 July 2016, the applicant was advised that the Minister had lifted the s 46A bar and he was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). The applicant applied for a SHEV on 26 September 2016 (the first SHEV application). Following the Full Federal Court judgment in DBB16 v MIBP [2018] FCAFC 178 of 6 August 2018, the applicant was found not to be a UMA but a Direct Entry Person. At that stage it was thought that the grant of the Class UJ-449 ‘Temporary safe haven visa’ meant that the applicant was subject to the bar in s 91K and therefore the 2016 SHEV application was invalid and could not be considered. On 8 November 2019, the Minister made a determination to lift the s 91K bar to allow persons affected by the DBB16 judgment and related matters to apply for a visa. The applicant applied for another SHEV on 21 October 2020 (the second SHEV application). Subsequent to a judgment of the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 on 4 May 2021, the Department reassessed the application made by the applicant on 22 September 2016 and determined it to be valid. On 10 August 2022 a delegate of the Minister for Home Affairs refused to grant the applicant a SHEV visa on his second application and on 22 February 2024 a delegate of the Minister for Home Affairs refused to grant the applicant a SHEV visa on his first application.
In view of the above circumstances, which have resulted in the applicant having two separate reviewable decisions made by delegates of the Minister in respect of the same non-citizen, the Tribunal has combined the two reviews pursuant to s 427(2). As detailed further below, the applicant was invited to appear before the Tribunal at a joint hearing of the two separate applications to give evidence and present arguments.
CLAIMS AND EVIDENCE
The first Safe Haven visa application (SHEV)
According to his first SHEV application form, the applicant was born on [Date] in [Village], Baglung district of Nepal. The applicant speaks, reads, and writes in Nepali and English. He identified his ethnicity as Nepali and his religion as Hindu. He completed secondary school in [Year] and worked as owner/manager of a [business] ([Year]-[Year]) and as a journalist on the [Newspaper] ([Year]-[Year]). He married in [Year] and his wife is in Nepal. The applicant’s parents and [brothers] are living in Nepal. The applicant departed Nepal for [Country 1] [in] February 2013 legally on his own passport then flew to [Country 2], where his passport was taken by the agent who arranged his travel to Australia by boat. He arrived in Darwin [in] May 2013. He stated that he had never been refused visas to any country other than Australia.
The applicant’s protection claims, as set out in his application form, can be summarised as follows:
a.He left Nepal to save his life from the Maoists, who targeted him and threatened his life for not supporting them by paying the requested donation and from the underground smugglers, who targeted him for publishing a newspaper report about the smuggling of [commodity].
b.He fears his life will be in danger if he returns to Nepal. The Maoists will abduct, torture, and possibly kill him for not paying the demanded donation. The smugglers might kill him because he published news against them. Because of the constant efforts of journalists, the smuggling of [commodity] has stopped but the smugglers are against the journalists who wrote against them.
c.The authorities will not protect him and he will not be able to relocate within Nepal. He reported these threats to the local police, but they ignored them as they cannot act against the Maoists because they are ruling the country. The smugglers are an underground group and bribe the authorities.
In a covering submission dated 20 September 2016, the applicant’s representative posited that the applicant was a victim of the Maoists and [commodity] smugglers. As a businessman operating a [business] in Kathmandu, he was contacted by the Maoists for donations. On some occasions he provided small donations but refused to do so when asked for a ‘huge amount’ and his life was threatened. He also worked as the Kathmandu correspondent for the [Newspaper] based in [Location]. During this time, he published news about the smuggling of [commodity] and subsequently received several threats that he would be killed within a week. He was in a hideout until the day he fled from Nepal.
Supporting documents provided included copies of his birth certificate, a business registration document, Nepali driving license, journalist appointment letter and press card and an untranslated article in Nepali from the front page of a newspaper bearing the English language title [Newspaper] and English language date of 23 January 2013 and a photograph of the applicant.
The applicant attended an interview with the Department on 19 June 2018 (the first interview). The interview was conducted with the assistance of an interpreter in the Nepali and English languages. Where relevant, the applicant’s oral evidence in the course of that interview is referred to further below.
According to the Department decision record, the applicant indicated in his SHEV visa application lodged on 22 September 2016 and at his first interview that he had never been refused visas to any country other than Australia. However, the Department put to him that he had, in fact, been refused a visa to [Country 1] in 2010, for which he applied using a passport with a slightly different spelling of his name and a birthdate of [Day 1, month, year], not [Day 2, month, year], as indicated in his application. The applicant then admitted that he had lodged a visa application for [Country 1] in [Year] but denied that the passport he used had a different birthdate. He added that he had also applied for visas to [Country 2] on two occasions in [Year].
The Department also raised with the applicant concerns about the authenticity of documents he provided in support of his application, including his Nepalese birth certificate issued [in] May 2012, his Nepalese driving licence issued [in] April 2012 and his journalist training certificate dated [May] 2010, which all contained the same photographic image of him; as well as the untranslated newspaper article and the newspaper employment card he provided which also appeared to contain identical photographic images of him.
On 15 January 2024 the Department sent the applicant a s 57 Natural Justice letter inviting his comment on adverse information in relation to his application, including the issues outlined above. The applicant responded on 20 February 2024. Regarding the different date of birth in the passport used to apply for the [Country 1] visa, the applicant claimed it was a ‘typo’.
On 22 February 2024, the delegate refused to grant the applicant a Protection visa as he was not satisfied that he was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. The delegate did not accept that the date of birth on the applicant’s Nepalese passport issued [in] 2004 and provided to [Country 1] authorities with his visa application was a ‘typo’; rather that the applicant had provided a false date of birth to the Department following his arrival in Australia in an attempt to conceal his previous visa applications to [Countries 1 and 2]. Noting that fraudulent documents were easily obtained in Nepal, the delegate placed no weight on documents provided by the applicant in support of his application and questioned the applicant’s overall credibility in light of false, inconsistent, and conflicting information provided in his dealings with the Department. He did not accept the applicant’s claims that he had worked as a journalist for the [Newspaper], received death threats from the Terai Tigers criminal group or feared harm from them for publishing an article exposing illegal smuggling of [commodity]. Noting the applicant’s evidence at interview that he did not fear persecution from the Maoists, he did not discuss this claim further as part of his Protection visa assessment.
The second SHEV application
The information provided in the applicant’s second SHEV application dated 21 October 2020 was consistent with the information in his first SHEV application, with the addition of details that he had a son born in [Year] and a sister and brother-in-law living in Australia. The applicant’s claims for protection were effectively the same as in his first application and he noted on the form ‘for details please refer to my claim submitted in my previous application’.
The applicant attended an interview with the Department on 1 December 2020 (the second interview). The interview was conducted with the assistance of an interpreter in the Nepali and English languages. Where relevant, the applicant’s oral evidence in the course of that interview is referred to further below.
In the second interview, the applicant again clarified that the Maoists asked for money but did not threaten him in Nepal and that he did not fear harm from the Maoists if he returned to Nepal. He claimed that he was threatened by the Terai Tigers criminal group in Nepal after he writing an article exposing [commodity] smugglers.
On 29 March 2021, the delegate refused to grant the applicant a Protection visa as he was not satisfied that he was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. He accepted the applicant’s evidence that the Maoists were not threatening him and did not consider the claim further. The delegate accepted that there were criminal gangs active in Nepal who may be involved in smuggling [commodity], noted the absence of country information regarding a group called Terai Tigers. He did not accept that the applicant worked as a journalist in Nepal or was threatened by a criminal gang after publishing a news report exposing [commodity] smuggling. He noted that the applicant had been asked to provide a translated copy of his article but had failed to do so and found that the untranslated newspaper report he provided from the [Newspaper] had been fabricated for the purpose of supporting the applicant’s claims.
Evidence before the Tribunal
On 21 April 2021, the applicant applied to the Tribunal for a review of the Department’s decision of 29 March 2021 to refuse his SHEV application of 21 October 2020. A copy of the decision record was provided for the purpose of the review.
On 18 March 2024, the applicant applied to the Tribunal for a review of the Department’s decision of 22 February 2024 to refuse the SHEV application of 26 September 2016. A copy of the decision record was provided for the purpose of the review.
The applicant was represented in relation to the reviews.
The Hearings
In view of circumstances which resulted in the applicant having two separate reviewable decisions made by delegates of the Minister in respect of the same non-citizen, the Tribunal has combined the two reviews pursuant to s 427(2). The applicant appeared before the Tribunal by MS Teams videoconference on 29 August 2024 to give evidence and present arguments relating to the issues arising in the two reviews. The hearing was adjourned due to technical difficulties and resumed on 2 September 2024. The Tribunal hearings were conducted with the assistance of interpreters in the Nepali and English languages.
At the beginning of the hearing the Tribunal noted that the applicant submitted the same written statement of claims in relation to both review applications and advised that the Tribunal would consider that statement, as well as all evidence provided in relation to each of the reviews, including the two interviews with the Department, recordings of which the Tribunal had listened to. The applicant confirmed that all evidence he had provided to date was true and correct and that he did not wish to make any changes or to add anything. The Tribunal discussed with the applicant his background and key aspects of his claims. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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: s 5AAA. 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, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Analysis, Findings and Reasons
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
Country of reference
The Tribunal notes the Department’s concerns regarding information and documents provided by the applicant to verify his identity. However, on the basis of his fluency in the Nepali language and other evidence accepted by the Department and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a national of Nepal and considers Nepal as the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
The applicant’s claims
In his written statement of claims submitted in relation to both his SHEV applications, the applicant stated that he feared harm from the Maoists who targeted him for not supporting them by paying the donation they requested, as well as from underground smugglers, who targeted him after he published a newspaper report about them smuggling [commodity].

However, in his two interviews with the Department, the applicant clarified that while the Maoists demanded money from him, they did not threaten him, and he did not fear harm from them. The applicant confirmed this at his hearing before the Tribunal. The Tribunal will, therefore, not consider his claim to fear harm from the Maoists any further.
Threat from Terai Tigers/underground smugglers
The applicant confirmed to the Tribunal at the hearing that the only harm he feared in Nepal was from the Terai Tigers, an underground criminal group operating in the Terai area near the Indian border. Although his statement of claims referred to them only as underground smugglers, the Tribunal accepts that the applicant identified them as ‘Terai Tigers’ from the time of his arrival interview and in his Departmental interviews.
The applicant consistently claimed that the Terai Tigers threatened him after he published a report about their involvement in [commodity] smuggling while working as a journalist for the [Newspaper]. He told the Tribunal that he worked for this newspaper in addition to running his [businesses] in Kathmandu in the two and a half years before he left Nepal. He said the newspaper was published in [Location], which he described as a ‘remote place’ far from Kathmandu, covering local news from the whole district, as well as important national news. It was a print only newspaper with no online presence and was sold in [Location] and the surrounding district through newspaper shops and sellers.
The applicant claimed that he gathered the information for his story from local police and neighbours in [Location 2] in the Terai area two or three weeks before he left Nepal in February 2013. On return to Kathmandu, he published just one report in which he stated that the Terai Tigers were involved in smuggling [commodity]. The applicant claimed that, on the same day the report was published, Terai Tigers called him on his mobile phone saying they would kill him for writing about them. He did not know how they obtained his mobile phone number, but said they called him again making threats four or five times in the following week. After going into hiding in Kathmandu, he left Nepal a week later.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Firstly, the applicant was vague about the content of the report he allegedly wrote, as well as details of the smuggling route through Nepal, which the Tribunal would have expected a journalist who had researched such a story to know. The applicant volunteered that, at the time most newspapers in Nepal were reporting on [commodity] smuggling and the long chain of people involved, including police and government officials working together for commission. However, he claimed to be the only one who wrote that the Terai Tigers group was involved, though he did not identify any individuals by name.
Secondly, as discussed with the applicant, the illegal smuggling of [commodity] from India through Nepal to China and the involvement of officials and criminal gangs in these operations had been publicised in Nepali media since 2007.[1] In light of this, the Tribunal is not satisfied that the applicant’s alleged report of such activities in [Year] would have been as significant news as he has suggested, nor that the publication of a single article in remote [Location] at this time would have put him at risk.
[1] [References]
Thirdly, as discussed with the applicant, the Tribunal finds it surprising that he did not provide a copy of the article he claimed to have published, which allegedly resulted in death threats against him and prompted him to flee Nepal. Asked about the untranslated newspaper report which he submitted to the Department, the applicant said this was a report about his disappearance and the death threats he received after exposing the smugglers written by another journalist. It had been sent to him by friends after he left Nepal. Although the applicant offered to provide a copy of his published report, the Tribunal observed that the Department decision record on his second application indicated that he had failed to provide a translated copy of this report when asked to do so. This raises doubts that the applicant ever wrote or published the article about [commodity] smuggling, as claimed.
Fourth, like the Department, the Tribunal was unable to find any information about the Terai Tigers criminal gang in country information on Nepal or in media reports about [commodity] smuggling. Asked for their name in Nepali, the applicant said they were just known as the Terai Tigers and were mercenaries who threatened locals for money. He claimed that the reason there was no information about them was because they were an underground local group, which was not recognised, and they did not identify themselves. The Tribunal is not persuaded by this explanation, especially as the applicant then contradicted himself by saying that the Terai Tigers identified themselves in pamphlets left in the village and that he knew about them from ‘the news’.
Fifth, when queried why the Terai Tigers would be so concerned about his report given his evidence that it did not identify anyone by name, the applicant shifted his evidence to say it was because a local politician from Terai associated with the Tigers was imprisoned after his article was published. Yet he was unable to name the politician or remember when he was imprisoned. The applicant said he learned about this while watching the news in [Country 1] after leaving Nepal. The Tribunal finds this dubious in light of the applicant’s claim that he received his first threat on the same day that his article was published, when he was still in Nepal.
Sixth, as discussed with the applicant, the Tribunal finds improbable that the Terai Tigers, base in the border area with India, could learn about his article, published in a print-only newspaper in remote [Location], identify his mobile phone number and call to threaten him all within one day. The Tribunal considers opportunistic the applicant’s response that [Location 1] was also a place where the Terai Tigers were actively working to smuggle [commodity] to China, given that no evidence was provided to support this.
Seventh, the Tribunal also finds implausible the applicant’s evidence regarding the sequence of events that allegedly took place between the time he published his newspaper report, was threatened by the Terai Tigers, and departed Nepal. The applicant indicated in his Protection visa application that he left Nepal for [Country 1] [in] February 2013. At the hearing he told the Tribunal that he left Nepal a week after receiving death threats from the Terai Tigers for a week and that a friend sent him a copy of the [Newspaper] news report about his disappearance after he left Nepal. Yet the Tribunal notes that the news report he provided was dated [January] 2013 (in English), a month before he left Nepal and before his own article was published. This leads the Tribunal to conclude that the news report provided was not authentic but fabricated to support the applicant’s claims.
As to why he is now afraid to return to Nepal, the applicant told the Tribunal that many of the Terai Tiger leaders who were arrested because of his news report were still in jail. He claimed that, although the Terai Tiger group had been dissolved, they were now working under a different name, which he did not know, but were still active in threatening people and demanding protection money. The applicant said he feared that if he returns to Nepal, these people will come to threaten and kill him as they blamed him for their relatives being sent to jail. The applicant provided no evidence to support these claims and the Tribunal considers them speculative. Moreover, even if the Tribunal accepted that he had been threatened by the Terai Tigers in 2013 for publishing an article about them in a local newspaper in remote [Location], which it does not, it finds implausible that he would be targeted by them over a decade later.
Further, as discussed with the applicant and noting the ready availability of fraudulent documents in Nepal[2], the Tribunal shares the Department’s concerns about his failure to disclose information about being refused visas to [Countries 1 and 2] and the provision of false identity information and fabricated documents in order to conceal this; as well as the fabricated news report about his alleged disappearance and threats against him for writing a story about red sandalwood smuggling. The Tribunal does not accept the applicant’s claim at the hearing that the reason he failed to include information about his visa applications on his Protection visa application form was that there was ‘nowhere to write it’ or that it was ‘not so relevant’; nor that incorrect date of birth on the passport provided to [Country 1] authorities was a ‘typo’. This further undermines the general credibility of the applicant’s evidence.
[2] DFAT, DFAT Country Information Report Nepal, March 2023, p.36.
Having considered all the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that the applicant was truthful about his experiences in Nepal or the reasons he left there, nor that he ever faced serious harm in Nepal. The Tribunal is not satisfied that the applicant worked as a journalist and wrote an article about the involvement of Terai Tigers or underground smugglers in [commodity] smuggling, was threatened or targeted by them for this reason, prompting him to leave Nepal to save his life. Nor does the Tribunal accept that the was threatened by the Maoists for not supporting them by paying the requested donation.
It follows that the Tribunal is not satisfied that the applicant will face serious or significant harm if he returns to Nepal now or in the reasonably foreseeable future. The Tribunal is not satisfied that the Terai Tigers or underground smugglers will threaten or kill the applicant because he published news against them; nor that the Maoists will threaten or kill him for not supporting them or paying the requested donation. In the Tribunal’s view the applicant fabricated his protection claims for the purpose of achieving a migration outcome.
On the evidence before it, the Tribunal is not satisfied that there is a real chance that if the applicant were to return to Nepal, he would face harm for any of the reason contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution.
For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.
CONCLUSIONS
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.
Mara Moustafine
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.
…

[2024] AATA 4392

8 September 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice

Appeal