2107800 (Refugee)
[2021] AATA 3831
•6 September 2021
2107800 (Refugee) [2021] AATA 3831 (6 September 2021)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 2107800
COUNTRY OF REFERENCE: Nepal
MEMBER: Roslyn Smidt
DATE: 6 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 9 September 2021 at 11:40 AM
CATCHWORDS
REFUGEE – protection visa – Nepal – harm from applicant’s family – sexual abuse – criminal conviction in Australia – adverse social media attention – treatment of the co-accused upon return to Nepal – particular social group – women without family support – women with criminal convictions and no family support – woman or single woman in Nepal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Nepal, applied for the visa on 19 April 2021.
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) of the Act. 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) of the Act, 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- 5LA of the Act, 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 (the Department), 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.
BACKGROUND
The applicant is a [age]-year-old single woman from Biratnager in Nepal. Apart from a brief period when she lived with an aunt while studying in Kathmandu, she always lived in her family home with her parents, brother, grandparents and an aunt. She studied at a local [school] until the age of [age range]. During the final two years she studied towards a degree in [Discipline 1] which she did not complete. Following that she completed a course in Kathmandu to become a [Occupation 1]. About a month after completing that course she returned to Biratnager where she worked for [Employer 1] as a [certain role] for two or three months. She left that job about four or five months before she came to Australia so that she could study for her IELTS (English language) test and make other arrangements.
The applicant arrived in Australia on a student visa [in] August 2018. Her parents funded her course and travel. She supported herself by working while in Australia. She was found guilty of [a crime] in 2020 and was in custody from [June] 2020 to [March] 2021. She applied for protection after her release from custody.
The applicant was in a relationship with her co-accused from April 2019 until early 2021. He is also a Nepalese citizen from Biratnager. They had mutual friends in Nepal and knew each other by sight but had not spoken before arriving in Australia. He was deported to Nepal in early 2021. The relationship ended at or before that time.
SUMMARY OF CLAIMS
The applicant claims that she would be at risk of serious or significant harm on return to Nepal from members of her family and the Nepalese community. She claims that members of her family ill-treated and abused her before she left Nepal and that her parents rejected her after learning that she had been convicted of criminal charges and will not assist or support her if she returns. She claims that Nepalese people in Australia and Nepal abused and threatened her after reports on the charges against her were published in the media in Australia and Nepal and that members of the public will seek to harm her if she returns to Nepal. She claims that the risk of this harm is increased by her status as a woman without any family support. She also claims that she would be at risk of harm because of her status as a woman without support in Nepal.
FINDING OF FACT
Harm from the applicant’s family
Evidence provided to the Department
In written submissions to the Department in April 2021, the applicant claimed that she came to Australia to escape her family who were extremely controlling. She said that she was not close to her family and had been subjected to severe emotional abuse and had been a victim of sexual abuse by a family member on two occasions. She could not speak out about the sexual abuse in Nepal for cultural reasons. Her father was jailed on [charges] but found not guilty and released after three years. While her father was in jail her mother went to Kathmandu to study [Discipline 2] and left her and her brother with other family members who did not provide proper care for her or her brother. She was subjected to extreme physical and emotional abuse and sometimes could not attend school. She was sexually abused by a family member on two occasions. She faced ongoing torture for most of her life and the only
way to escape was by obtaining a student visa. She intended to apply for protection in Australia to avoid further sexual abuse.
During an interview with the delegate on 20 May 2021, the applicant said that she lived with her parents, her brother, paternal grandparents and a paternal aunt in Nepal. Prior to his arrest the applicant’s father was in [Industry 1]. After his release from jail he opened a [business].
The applicant said that she had never been close to her family and had a bad childhood, but also said that she had an ‘OK’ relationship with her parents and that she was closer to her father than her mother.
The applicant said that the aunt who lived with her family had never treated her well. She used to hit her and abused her emotionally. She did not know why her aunt treated her in that way. She did not tell her father about this abuse and he was often out and travelled frequently, so he was not aware of what was happening. Her mother was not concerned about her treatment and nobody in her family would support her.
The applicant said that her father was jailed in about 2016 but found not guilty and released about three years later. One of her paternal uncles was arrested on a [charge] at about the same time. Her uncle was involved with a criminal group, which may have had links to a political organisation. He used to live with her family. They had been fearful of him and some people, including the neighbours, were scared to speak to her family. Her father was supportive of this uncle and visited him in jail. The delegate asked why her father supported her uncle but would not support her. She said she did not know, but her father had never done anything wrong and he had told her not to do anything wrong.
The applicant said that her mother had gone to Kathmandu in 2016 to study [Discipline 2] while her father was in jail. While her mother was away the husband of an aunt who did not live with her family sexually abused her. He had treated her well before her mother went to Kathmandu, but while her mother was away, he started to touch her in an inappropriate manner. When her mother returned from Kathmandu in 2017, she told her what had happened. Her mother told her to keep her distance from the uncle and not to say anything because of cultural norms. This continued after her mother returned.
When asked for more information about this abuse later in the hearing the applicant said it began in about 2012 when she was aged about [age] and continued until she obtained her visa for Australia. The abuse occurred at her home. Her uncle used to touch her and tried to get her to do sexual things. She used to lock herself in her room and pretend that nothing had happened.
The applicant said that her father sold property to pay the $13,000 needed to fund her study in Australia. She did not receive any further financial support after she arrived in Australia and sent some money for her brother. She had remained in contact with her parents until she was taken into custody. She could not face her father due to shame and fear and he had not tried to contact her.
The applicant said that she had not contacted her parents when she was arrested, but after they found out, they contacted her. They were very aggressive. They told her she had brought shame on the family. Her mother told her they would not be there for her if she returned. They have not spoken again. She said that her parents’ pictures were shared online, linked to information about her crime. She said that they had received some online messages because of her case, but she did not know the contents of the online messages. She said that her parents were threatened in person. The delegate observed that this appeared to be at odds with her evidence that people were fearful of her parents because of
the association with her uncle. She said that she did not know why her parents had been threatened, but she believed it was related to her case.
The delegate asked the applicant why she had not sought protection shortly after she arrived in Australia if she feared that she would continue to face abuse from family if she returned to Nepal. She said that she had hoped to use her studies to obtain residency.
The applicant said nobody would accept her in Nepal and she would have nowhere to live. The only person who was speaking to her was a cousin who told her that her family was not happy and that nobody spoke about her in the house. She said that she could not live with this cousin because she was married and lived with her husband.
The delegate noted that information in the applicant’s submissions relating to the cancellation of her student visa was at odds with her current evidence regarding her relationship with her family while she lived in Nepal. In these submissions she said that her family had done a lot so that she could travel to Australia. She also said that she had suffered some violence in her relationship with her boyfriend in Australia, which was unlike the situation of her family in Nepal. The applicant said that she had not been ready to speak about family problems previously.
The delegate observed that even if the applicant’s family had rejected her, she was reasonably well educated and spoke English well, which could open up some opportunities for her so she could support herself. The applicant did not comment on this.
Following that interview the delegate wrote to the applicant to request further details of her family in Nepal and whether she could reside with them if she returned to Nepal. She was also asked to comment on issues of concern including:
·Why she feared harm that she would be rejected by her family given that she appeared to have had a good relationship with her father in the past and that he was supportive of her uncle who was in jail for [a crime].
·Why she had stated that she had a loving relationship with her family in her application to have the cancellation of her student visa revoked if her relationship with her family had been bad since childhood.
The applicant responded on 23 May 2021. The applicant provided details of her family in Nepal. She said that she had a good relationship with her parents and her brother before she come to Australia but the situation changed after she was charged and imprisoned. The case was widely reported in Nepal and people posted pictures taken from her parents [Social media 1] pages online exposing their association with her. She could not face them because of the shame she had caused them. She said that she had not spoken about sexual abuse and harassment when her student visa was cancelled because she was not ready to do so.
Following this the delegate accessed [Social media 1] pages which appeared to belong to the applicant and her family. On 28 May 2021 she wrote to the applicant to invite her to comment on the following matters:
·A [Social media 1] page which appeared to belong to the applicant suggested that she had not had the strict upbringing she had previously claimed and that her father was not in prison between 2016 and 2018.
·A [Social media 1] page belonging to the applicant’s father included videos and photographs of the applicant with her father between 2016 and 2018, which indicated that he was not in prison at that time.
·A [Social media 1] profile with the name ‘[Alias 1]’ with private settings, which appeared to belong to the applicant listed her father, mother, brother and former boyfriend as friends. The delegate suggested that the page may have been created to allow the applicant to continue to communicate with her family in private, and that she had not provided an accurate account of their current relationship.
·A [Social media 1] page belonging to the applicant’s former boyfriend and co-accused, which showed positive and welcoming comments from a number of people following his return to Nepal. The delegate observed that this suggested that she might also receive a positive reception from her family and friends if she returned to Nepal.
In response the applicant confirmed that the [Social media 1] page for [Alias 1] belonged to her. She said that she had established it because she could not access her previous account and it was the only way she could reach out to her family. She said that her ex-boyfriend had also become a friend on that page when they were in detention together in [immigration detention].
The applicant also provided an untranslated document which she said was from the Nepal police department and stated that her father had been in prison [from] December 2008 [until] February 2012. She said she had given the incorrect date for his imprisonment previously due to confusion.
The delegate did not find the applicant to be entirely credible. She did not accept that the applicant grew up in a strict household and did not have a close relationship with her family prior to her departure from Nepal, nor that her relationship with her family has broken down irreversibly, such that they would not provide her with support if she were to return to Nepal. She accepted that the applicant may have experienced sporadic instances of physical and verbal abuse from her aunt, but not that she feared further abuse from her aunt now that she was an adult. She accepted that the applicant had been sexually abused by an uncle at some time, but not for the period claimed by the applicant. She did not accept that the applicant’s father was in prison from 2008 to 2012. She accepted that the applicant had received some abusive messages following her conviction, but not that she was at risk of harm from the people who sent these messages on return to Nepal.
Evidence provided to the Tribunal
In June 2021 the applicant’s representative provided a copy of the delegate’s decision, a written submission and a statement from the applicant.
At the hearing on 21 July 2021, I noted that the applicant had stated in her earlier submissions that her family were very strict so she had not been able to live an independent life before coming to Australia. I observed, as pointed out by the delegate, that posts of her in social situations on her [Social media 1] page and the fact that she had come to Australia to study suggested that she had not been strictly controlled by her family. I also observed that such treatment did not appear to amount to serious harm and that, in any event, she is now an adult and could live independently so she would not be at risk of such treatment. The applicant said that her family had been strict, but she used to roam around with her friends secretly. She also said that if she had not been charged with a criminal offence, she would not have had any problems. She said that her claims related to the threats she had received after her arrest and conviction were publicised.
I noted that the applicant’s father continued to be supportive of his brother who had been convicted of [a crime] and observed that it appeared somewhat unlikely that he would reject her because of her conviction. I also noted that she appeared to be in contact with her parents through [Social media 1]. The applicant acknowledged that she was connected to her parents on [Social media 1]. She said that she had attempted to contact them after she was released from custody as she needed help, but she did not get a good response.
I observed that even if I accepted that the applicant’s family had rejected her, she was an adult with a reasonably good education and could live independently of her family. The applicant said that she would be at risk of harm because of violence against women such as rape and because she continued to receive threats from people in Nepal relating to the criminal charges against her.
I noted that the applicant had claimed that she had been ill-treated by her aunt when she was a child. I observed that the problems she had described did not appear to give rise to a claim for protection and in any event, she was now an adult and it appeared unlikely that her aunt would continue to abuse her. She said that if she returned to Nepal her family would not accept her.
I noted that she had also claimed that she was sexually abused by an uncle. I advised her that the nature of this abuse and when it occurred was somewhat unclear. She said that her uncle touched her inappropriately and tortured her every day. When asked to clarify what she meant by torture, she said that he had asked her to have sex, but she always refused and escaped to her room.
I advised the applicant that I had some doubts about the claims she had made regarding the problems she faced with her aunt and uncle. For example, I noted that she had given differing accounts of when her uncle abused her. I also noted that according to her initial application she came to Australia to escape the problems she was facing with her family and with the intention of seeking protection, but she had not applied for a protection visa until after she was released from prison. She said that she did not know anything about the possibility of applying for protection until after she arrived at the [Immigration Detention Centre], but she had hoped to gain residency using her studies.
Consideration of claims
After considering all of the relevant evidence, I am not satisfied that the applicant has provided an honest or accurate account of her relationship with her family prior to her departure from Nepal or following her conviction on criminal charges in Australia.
As noted above, the applicant claims that her father was in prison for three years on [charges] and that one of her uncles is still in prison on these charges. While there is no suggestion that she is at risk of harm in return to Nepal because of this, it is relevant to other aspects of her case including when she was abused by other family members. She has provided differing evidence of when her father was in jail, first claiming that it was from about 2016 until 2018, but later said that it was 2008 until 2012. I have difficulty accepting that the applicant would have been confused about whether her father was released from prison shortly before she left Nepal or some six years earlier. However, I can think of no reason why she would have falsely claimed that her father had served three years in prison if this were not the case. As pointed out in her decision, the delegate located a newspaper article dated [date] which confirmed that someone from Biratnagar with the same name as applicant’s uncle was serving a [specified] sentence for a [charge]. For the purposes of this decision I accept that the applicant’s father was in prison for three years, probably between 2008 and 2012.
The applicant’s evidence regarding her relationship with her parents prior to her departure from Nepal was confused and unconvincing. Her initial statements suggest that she was on bad terms with them because of the way they treated her. However, she later stated that her relationship with her parents had been reasonably good and she had no real problems prior to the time she faced criminal charges. Her parents’ willingness to support and fund her study in Australia also indicates that they had a good relationship prior to her departure for Australia. It appears that the applicant initially sought to claim that she had experienced significant problems with her parents since childhood, but later abandoned this claim.
I found the applicant’s evidence regarding sexual abuse by an uncle unconvincing. In her initial statement she said that she had been sexually abused twice by an unnamed family member. During her interview with the delegate she said that the abuse had begun while her mother was in Kathmandu in 2016 or 2018 but later said that it had commenced in about 2012 and continued until she obtained her visa for Australia in 2018. At the hearing she said that her uncle has touched her inappropriately and asked her for sex, but he had never forced her to have sex and she had always escaped.
I acknowledge that it is not uncommon for applicants to be confused about the dates of past events. I also acknowledge that 2012 appears to be the date that her father was in prison and her mother went to Kathmandu. However, I do not accept that the applicant would have initially claimed that she was abused twice if the abuse had continued from 2012 to 2018 or that she would have been unable to recall whether it commenced in about 2012 or about 2016. In these circumstances and in light of my finding regarding her attempt to exaggerate other problems with her parents, I do not accept that she was sexually abused by an uncle prior to her departure from Nepal. I believe that she concocted this claim to support her application for protection.
I accept that the applicant’s aunt may have treated her harshly on occasion when she was a child. She may also have resented some of the restrictions which her parents placed on her behaviour as a child or teenager. However, she appears to have had a reasonably good relationship with her parents who willingly supported her study in Nepal and Australia. I do not accept that she obtained a student visa in order to flee serious or ongoing harm or threat from any member of her family. I believe that she concocted or embellished these claims to enhance her claim for protection.
I accept that the applicant’s parents were upset and angry when they learned that she had been convicted of criminal charges in Australia. I also accept that they were identified as her parents in online posts and received some insulting comments as a result (see also below). However, according to evidence the applicant provided following her interview with the delegate, she established a new [Social media 1] page with private settings after receiving abusive messages on her original [Social media 1] page in order to reach out to family members. Her parents, her brother and her former boyfriend are all her friends on that page. For this to be the case, the applicant’s parents must have asked to become her [Social media 1] friend or accepted her invitation to become her friend. In either case, it is clear that her family did not severe ties with her after she was arrested. Her evidence at the hearing indicates that they continue to be [Social media 1 contacts]. In these circumstances and in light of the applicant’s willingness to concoct and embellish claims to support her case, I do not accept that her parents have rejected her or that they would refuse to provide her with any support or assistance if she returned to Nepal.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm from members of her family if she returns to Nepal.
Harm relating to the applicant’s criminal charges in Australia
Evidence to the Department
In her April 2021 application, the applicant said that she had received death threats after her criminal case was reported on the media in Australia and Nepal and she feared harm on her return to Nepal because of this.
On 24 April 2021 the applicant provided screen shots of what appear to be media reports, [Social media 1] pages and [Social media 2] accounts. A number are partly or entirely in Nepalese. Most appear to have been posted [number] months earlier, presumably in about [Month 1, Year]. A few are dated [Month 2, Year]. They include.
·Reports on Nepalese media outlets [Media outlet 1], [Media outlet 2] and [Media outlet 3] mostly in Nepalese, which name the applicant and her co-accused and appear to have been shared by others on [Social media 1].
·Two comments of a threatening nature: [A user] shared an Australia TV report on the applicant and commented ‘[comment redacted]’. A comment by [another user] which states that the applicant has brought shame on Nepal and threatens to kill her if she returns to Nepal. The message appears to have unsent, which appears to mean withdrawn.
·Several comments criticising the applicant: [A user] shared an Australia media report on two Nepalese nationals accused of taking money from vulnerable people and observed that their actions will affect the relations between Australia and Nepali people and they should be ashamed; a comment by [another user] which states that the applicant and her co-accused are not needed in Nepal; a comment by [a user] which states that he hopes the applicant is in prison where she belongs; a comment by [another user] which states that because of ‘thief girl’, presumably the applicant, innocent Nepalese in Australia felt ashamed.
·A post on what appears to be [a TV broadcasting channel]’s [Social media 2] account, which expresses concern that the applicant and her family have received many hate comments.
·Several comments calling on others not to troll or threaten the applicant and her co- accused. These posts appear to come from people of Nepalese background and include a post from [a user] calling on those trolling the applicant to delete their comments; a comment by [another user] calling on people not to spread hatred of the applicant and her co-accused; a comment by [a user] which states that the applicant was punished by the law and the abuse she has received is shameful; and a comment by [another user] which states that the applicant was punished for her mistake and calls on others not to cross limits which might lead to depression or suicide.
·Links to [Social media 3] videos. According to the delegate’s decision not all of these videos were accessible. Those that were posted between [date] and [date] were in Nepalese and showed photographs of the applicant and her former boyfriend.
During her interview with the delegate in May 2021, the applicant said that she had been unaware of the comments and threats on her [Social media 1] page until she was released from detention in March 2021. She said that she continued to receive these messages in her [Social media 1] messenger inbox and the most recent threats were received in April 2021 when she lodged her protection visa application. The delegate asked why she had not deactivated her [Social media 1] account. She said that she had written an apology on her [Social media 1] page and had not removed it in order to show her remorse.
The applicant said that her parents’ pictures were shared online, linked to information about her crime. She said that they had received some online messages because of her case, but she did not know the contents of the online messages. She said that her parents were threatened in person. The delegate observed that this appeared to be at odds with her evidence that people were fearful of her parents because of the association with her uncle. She said that she did not know why her parents had been threatened, but she believed it was related to her case.
The delegate asked if the applicant feared anyone in particular in Nepal. She said that a few people had made negative comments, but none of them were her friends.
On 23 May 2021, the applicant provided a screen shot of a [Social media 1] message dated [date] from [a user] which who called the applicant a whore and threatened to kill her if she returns to Nepal. It appears to have received a number of likes and a comment from [another user], also threatening to kill the applicant.
On 28 May 2021, the applicant provided several screen shots from social media dated [date], including a post from [a user] who shared a news report and called the applicant and her co-accused scammers, and a comment from [another user] which states ‘[comment redacted]’. She also provided screen shots of messages dated April and May which are no longer available. She claimed they were threatening messages which had been recalled by the author.
The delegate accepted that members of the Nepalese community in Australia and Nepal had negative views of the applicant because of her conviction but did not accept that there was a real chance that anyone would harm her for that reason if she returned to Nepal.
Evidence to the Tribunal
In June 2021, the applicant’s representative provided a copy of the delegate’s decision and a written submission. It states that the applicant had received overwhelming adverse publicity after her case went viral on social media. As a result, she was abused and sworn at and several people threatened her life. Her parents were also abused. The blame for the crime was placed mostly on the applicant while her former boyfriend, who was at least equally to blame but did not receive much adverse attention. The applicant’s representative said he is of Nepalese background and based on his personal experience and knowledge, the applicant’s involvement in criminal acts in Australia would be viewed much more serious than her co-accused because she is a woman.
A statutory declaration from the applicant was also provided. It relates entirely to the charges she faced in Australia. She also provided several articles relating to the situation of women in Nepal (see below).
On 21 July 2021 the applicant’s representative provided:
·Screen shots of media reports, [Social media 3] videos and [Social media 1] pages, many of which are in Nepalese and many of which were also provided to the Department. They appear to date from mid-2020.
·Links to a number of [Social media 3] videos. Some are no longer available. All appear to date from mid-2020.
At the hearing the applicant again said that she had received many threatening messages on social media after her criminal conviction was publicised in Australia and Nepal. I noted that the reports she had provided all appeared to date from mid-2020 when she was first
charged. She said that this was not correct. She said that people continued to send messages, but then removed them.
I noted that the posts and messages received by the applicant appeared to come from people she did not know. I observed that it was very easy to post such messages on [Social media 1] and not uncommon for people to do so, but this did not necessarily mean that the strangers responsible for these posts or comments had any intention of seeking her out or harming her, particularly given the passage of time since her conviction. She responded that Nepal was a very small place and three or four people who still lived there had sent her threatening messages, so she was afraid. I observed that this appeared to be a very small number compared to the population of Nepal. I also noted that a number of the messages appeared to have come from people in Australia and the location of the others was unclear. She said more than 2,000 people had made negative comments or threatened her on [Social media 1]. I observed that while this would have been confronting, I found it unlikely that people who had made these comments would have any continuing interest in her. I also noted that [Social media 1] was very easy to manipulate by arranging for friends to post items, and it was difficult to assess the significance of items which had been posted. The applicant made no further comment.
I noted that the applicant’s father had been in prison for three years after being accused of [a crime] and asked if her family had faced any problems because of this. She said that there were some small problems. When asked for details she said that the neighbours spoke badly about them and looked at them in a bad way. This continued after he was released from jail. Later in the hearing I observed that her family appeared to have faced only relatively minor problems when her father was jailed for [a crime], which appeared to be a more serious than the offence which she had committed and observed that it therefore appeared unlikely that she would experience serious problems with members of her local community if she returned to Nepal. She said that her family would not accept her so she would not have anywhere to live or any support but said nothing about fearing harm from others in the community.
I noted that according to the delegate’s decision posts on the applicant’s boyfriend’s [Social media 1] page suggested that he had not been rejected by the community after he returned to Nepal and that he was living a normal life. I observed that this suggested that the applicant would not face serious problems on return because of her criminal record. The applicant did not dispute the suggestion that her former boyfriend had not experienced significant problems on his return to Nepal but said that she would be treated differently because she is a woman. She said that because Nepal was a sexist society there had not been much publicity about her former boyfriend’s involvement in the crime and he had not received the same level of abuse. I noted that it appeared that the delegate had only reviewed the posts relating to the applicant’s co-accused return to Nepal in early 2021 and it was not clear whether he had received online abuse prior to that time. The applicant maintained that she had been and would be treated differently.
Following the hearing the applicant’s representative provided a submission which repeats that she had been rejected by her family because she now has a criminal record and submits that she would be not be able to find decent employment or survive and would be forced into prostitution. Furthermore, she comes from a small town where everyone knows each other and she would not be able to find anyone to marry her.
Consideration of claims
I accept that the applicant received abusive and threatening messages on her [Social media 1] page when the charges against her were published in the media in Australia and Nepal and that this made her fearful of what might happen if she returned to Nepal. I also accept that
the applicant’s parents were identified in some of these messages or posts and that they also received some abusive messages. However, I found her evidence regarding the claim that her parents were personally threatened vague and unconvincing, and I do not accept that this occurred.
I am not satisfied that the messages on the applicant’s social media indicate that her case attracted widespread attention in Nepal. The whereabouts of the people who posted [Social media 1] messages is unclear. However, a significant number appear to be Nepalese people in Australia and the applicant’s evidence at the hearing suggested that only a small number of them were posted by people residing in Nepal. Furthermore, the evidence indicates that these messages were received within a short period of time after the applicant’s case was mentioned in the media. The screenshots provided appear to date from mid-2020. The only messages which have a date recorded following this time were posted on [date] (presumably 2021). I note that the applicant told the delegate during her interview that the most recent threat she had received was in April 2021 when she applied for protection. It seems unlikely, and convenient for the applicant’s case, that she would receive more threats two days after that interview. As I noted at the hearing, it is easy to manipulate [Social media 1] by measures such as arranging for friends to post appropriate comments. In my view, it is likely that this occurred in relation to the messages dated [date] and I have given them little weight. The only other evidence relating to recent threats or abusive comments are screen shots relating to messages that were withdrawn. In the absence of any evidence regarding the content of these messages I have also given them little weight.
In any event, even if I accept that the applicant has received a few abusive or threatening messages recently, they were clearly very few in number. In my view this indicates that the adverse interest of her compatriots was short-lived and they no longer have any particular interest in her. I also note that while most of the social media posts which she provided in support to her case appear to contain abuse and sometimes threats, others are understanding and supportive. In these circumstances and given that none of the people who posted comments or threats on the applicant’s [Social media 1] page were known to her personally, I find it highly unlikely that they would be aware of her future movements, including her return to Nepal should this eventuate, and even less likely that they would seek her out and harm in her some way. I am not satisfied the applicant faces a real chance of experiencing serious or significant harm from the people who threatened or abused her on [Social media 1], or anyone else in Nepal who learned of her conviction from media reports or social media posts in 2020.
The applicant’s claims relate primarily to people who posted abusive or threatening comments on her [Social media 1] page. Nevertheless, I have considered the possibility that she would be at risk of harm from others in the community if she returns to Nepal. As discussed above, I do not accept that the publicity relating to her case was widespread or long-lived and in my view there is at most a remote possibility that members of the Nepalese community who do not know her personally would be aware of her criminal conviction in Australia or would have any interest in harming her for that reason.
I acknowledge that the applicant’s neighbours and former associates in Biratnagar may be aware that she was convicted of a crime in Australia. However, there is no suggestion that any of the threats she received on social media came from her neighbours or associates in Biratnagar, nor is there any credible evidence which suggests that they have made any other direct or indirect threats against her.
I was unable to locate and specific information on the situation of people with a criminal record in Nepal. However, the treatment of the applicant’s co-accused on his return to Biratnager and her family during the time her father was in prison, suggests that while people charged with or convicted of a crime may face some social stigma, they are not at
risk of serious harm. I note that the applicant and her former boyfriend had mutual friends in Biratnagar and appear to have moved in similar social circles in Nepal, which supports a finding that they are likely to be treated in a similar manner on return from Australia. I also note that the applicant and her boyfriend remain [Social media 1] friends. If he had experienced significant difficulties or harm after his return to Nepal, I believe the applicant would have been aware of this and would have mentioned it at the hearing. Finally, as noted above, some of the posts on her [Social media 1] page were supportive and understanding which suggests that there are likely to be a range of reactions to the fact that she was convicted of a crime in Nepal.
In assessing this claim, I have considered the submission that the applicant would be at greater risk of harm than her co-accused because she is a woman and therefore bore most of the blame for the crime and received most of the adverse publicity and abuse. At the hearing she noted that the delegate had observed that there were friendly comments on her former boyfriend’s [Social media 1] page and claimed that this differed from her experience. However, the posts on her former boyfriend’s page relate to the time he returned to Nepal in early 2021 not to the period in mid-2020 when she was receiving abusive messages. I note that his involvement in the crime was mentioned in a number of the media reports and in some of the abusive posts which the applicant submitted in support of her claim. While I acknowledge that women face discrimination in Nepal, in my view the evidence does not suggest that the applicant was treated in a significantly different manner from her co- accused with regard to the reporting of the crime or the abusive messages which followed or that her reception on return to Nepal would be so different from his that while he was able to resume a relatively normal life, she would face serious or significant harm.
I accept that the applicant may face some social stigma on return to Nepal because of her criminal conviction. However, in my view the available evidence does not suggest she that she would be rejected by the entirety of her local community or Nepalese society more broadly and therefore would be denied the possibility of earning a livelihood or face other forms of serious or significant harm because she has a criminal conviction in Australia. And while it may be that social stigma could impact on her ability to form relationships, the claim that she would not be able to find a husband is no more than speculation. In any event, there is no suggestion that she would be denied the right to marry and there is nothing in the evidence which suggests that she would be rendered homeless or forced into poverty or face other serious problems if she does not marry. She is relatively well educated, multilingual, had no difficulty finding work prior to leaving Nepal and as discussed below, in believe that she will have some support from her family if she returns to Nepal.
After considering all of the evidence I am not satisfied that there is a real chance that her the applicant would suffer serious or significant harm if she returns to Nepal now or in the reasonably foreseeable future because she has a criminal record in Australia.
The applicant’s status as a woman without support
In her submissions to the Department the applicant claimed that she had been rejected by her family but made no specific claims regarding her status as a woman or a woman alone.
In June 2021, the applicant’s representative provided a submission which stated that the majority of the population in Nepal were uneducated and many were unemployed and it was likely that the applicant would face violence from men in Nepal. He provided the following articles relating to women in Nepal.
·A copy of an article entitled ‘Women Struggle for Humanity in Nepal’ published by the Church of Scientology. It states that women are treated as second class citizens
with few rights in Nepal, with lower literacy rates and access to education than men. It also reports on domestic abuse and sexual abuse of women.
·A copy of an article dated February 2016 which reports that a woman who had been deported from India to Nepal had gone missing. It appears to suggest that she disappeared or left the airport before airline staff could hand her to local officials.
·An article from Human Rights Pulse entitled ‘Women in Nepal May Face Restrictions over Freedom of Movement’ dated March 2021, which states that the Nepalese Department of Immigration was considering a proposal aimed at fighting human trafficking, which would require women within an unspecified age group not travelling with their family to obtain permission from their parents and the local government office. Hundreds of people protested this proposal in the streets of Kathmandu as it would restrict women’s rights.
·An article on Female Genital Mutilation in Togo and protection in Australia. The applicant’s representative said that he had included this article because of its commentary on women as a particular social group.
During the hearing the applicant maintained that she had been rejected by her family and claimed that she had been and would be treated more harshly than her former boyfriend because of her criminal record on return to Nepal. Her representative referred to the discussion on women as a particular social group in the article on FGM in Toga which he said supported the claim that the applicant would be at risk of harm in Nepal because of she was a member of the particular social group of women. I advised him that I accepted that women could constitute a particular social group and face serious harm because of this in some circumstances and invited him to provide submissions specific to the applicant. He requested and was given time to provide written submissions on this issue.
On 3 August 2021 the applicant’s representative provided a further submission. It does not specifically address the issue of the applicant’s membership of a particular social group comprised of all or some women in Nepal. It repeats claim that she has been rejected by her family because of the shame associated with her conviction of a crime in Australia. It states that because of this she would be subject to degrading treatment in the male dominant society in Nepal.
The following articles regarding the situation of women in Nepal were provided:
·An article from the website DNA India which reports on poor uneducated women from villages in Nepal who face exploitation and sexual abuse after obtaining employment abroad.
·An article in The Diplomat dated 23 June 2020, which states that the COVID-19 pandemic may worsen existing gaps in women’s education, income, and employment prospects and worsen existing problems in relation to domestic violence.
·A Human Rights Watch report dated 18 May 2020, which states that some social media groups in Nepal have been circulating images obtained without consent and that the Nepalese authorities are not doing enough to combat this problem.
·An article dated 1 August 2016 from AsiaNews, which reports that some women who lost everything following a devasting earthquake in Nepal in 2015 had been forced into prostitution.
·An article dated 8 March 2020 from the Kathmandu Post, which states that some women in Nepal have difficulty obtaining citizenship or passing it on to their children.
·An article dated 8 December 2017 from a publication called Democraciaabierta, which reports on difficulties faced by women’s rights activists in Nepal.
·An article from Aljazeera dated 8 March 2020 which reports on the human trafficking in Nepal, which has particularly affected people who became destitute following the 2015 earthquake. Most of the victims have been women and girls from rural area who were promised work in Nepal but instead were forced to become prostitutes.
·What appear to be case studies form a publication by the Women’s Foundation Nepal. They report on domestic and sexual abuse, mostly against young girls from poor backgrounds.
·An article from the Kathmandu Medical Journal dated 2019 on the role of health care workers in relation to domestic violence in Nepal. It reports that domestic violence is widespread but underreported in Nepal and that most perpetrators escape prosecution due to the ineffective legal system. It observes that as they are often the first point of contact for victims of domestic abuse, health care workers could potentially play a useful role in combatting this problem.
·An article from the Lancet dated 16 February 2008, which also reports on the high incident of violence against women in Nepal.
Country information
DFAT reports from 2016 and 2019 provide the following insights into the situation of women in Nepal.
The 2015 Constitution prohibits discrimination on the basis of gender in relation to inheritance and government employment and allows for ‘positive discrimination’ to establish special opportunities in relation to education, health, employment and social security. The constitution also prohibits physical, mental, sexual and psychological violence against women and establishes the right to compensation for such violence. Despite this and other legal measures, significant problems remain.
Women rarely receive the same educational, employment and economic opportunities as men. In 2016 DFAT reported that less than six per cent of women are employed in the formal sector, compared to 21 per cent of men, and earned income for women was about one-third that of men. Girls are vulnerable to early marriage which disrupts or ends their formal education. Single women and widows are particularly vulnerable to exploitation and discrimination.
Regardless of their economic, caste or ethnic status, Nepali women and girls are vulnerable to violence in many forms, including rape, sexual abuse and human trafficking, but women from low socio-economic communities are particularly vulnerable. Offences such as rape often go unreported and police frequently fail to register complaints or prosecute rape cases, although the situation appears to have improved to some degree in recent times as awareness of the criminal nature of these offences grows.
Sexual harassment is banned but remains a commonly reported problem, and women’s groups report that penalties are not severe enough to act as a deterrent. Women who work in the informal sector are particularly vulnerable to sexual harassment.
Overall, DFAT assesses that women in Nepal face high levels of societal and official discrimination and a moderate risk of violence. However, the experience of individual women varies. Women from poorer or lower-caste backgrounds experience a higher risk of discrimination and violence.
Other independent reports confirm that women in Nepal continue to face significant discrimination and violence against women is common. However, there are also indications of improvement in some areas. For example, an article on divorce published by Republica in May 2011 reported that while divorcees continued to be looked down on in Nepal, urbanization coupled with modernization along with female empowerment, including financial security and job opportunities, have strengthened women to take bold and radical steps which were once considered taboo in Nepali society. An article by Global Press Institute dated May 2012 also notes that more awareness of legal rights and less attention to social stigma had seen a rising number of women filing for divorce in Nepal. A BBC report from May 2017 states that under the new Constitution women must hold certain positions in the local administrations and this had driven strong female engagement across Nepal, especially among women under 30. Some 20,000 women stood for election to local government that year according to a BBC report from October 2018. An article entitled ‘Nepalese Women Defying Patriarchy’ provides information on steps being taken by government and non- government organisations to improve the situation of women in Nepal.[1]1
[1] CX286800 'On divorce', Republica (Nepal), 13 May 2011; CX306294: ‘NEPAL: Rising awareness of legal rights doubles divorce rates in Nepal's capital’, Global Press Institute, 4 May 2012, ‘Nepal election: The women who want to bring change’, BBC Nepali, Kathmandu 11 May 2017 ‘Nepalese Women Defying Patriarchy’,
I have also had regard to the reports and articles provided by the applicant. Most confirm the DFAT assessment that most women in Nepal continue to face significant problems. Several relate mainly to poorer women in rural areas or women in particular situations such as being displaced in 2015. While the latter provide some insights into the situation of women in Nepal, they have very little relevance to the applicant and I have given them little weight.
Consideration of claims
The applicant’s representative’s submissions following the hearing suggest that she fears serious or significant harm on return to Nepal because she has been rejected by her family and would be a woman alone and because of her status as a woman in a patriarchal society.
As discussed above, I do not accept that the applicant has been rejected by her parents. I believe that she made this claim to bolster her case for protection in Australia. In addition, while she initially claimed that her relationship with her parents had been so restrictive and unsupportive that she felt the need to leave her homeland, she later stated that they had a reasonably good relationship. In my view the applicant’s parents’ willingness to support her to study in Kathmandu and to sell property to fund her study in Australia indicates that they were supportive of her and do not subscribe to many of the traditional views on the place of women in Nepal. Her father’s continued support for his brother who is in jail suggests that he has some sympathy for family members who have been found guilty of criminal charges and is prepared to provide them with support even if others in the community might disapprove of this. In these circumstances I do not accept that the applicant would have so little support from her family that she would be rendered homeless and vulnerable to gender-based exploitation or violence or forced into prostitution.
After considering all of the evidence, I do not accept that applicant faces a real chance of experiencing serious or significant harm on return to Nepal because she would be a member of a particular social group of women without family support or women with criminal convictions and no family support.
I have also considered the possibility that the applicant would be at risk of serious harm because of her status as a woman or a single woman in Nepal.
It is clear from the evidence that women face discrimination in Nepal and that many women are vulnerable to violence. However, according to DFAT, the likelihood that a woman will experience serious discrimination or harm varies depending on her background and location, with poorer or lower-caste backgrounds at greater risk than others. Other reports also suggest that there have been improvements, particularly for women in urban areas and for those with greater financial security or job opportunities.
There is no suggestion that the applicant has or would have problems related to caste. Nor is there any credible evidence before me which suggests that she comes from a poor background or that she faced serious discrimination or sexual harassment or violence prior to her departure from Nepal.
The applicant comes from Biratnagar, a city of some 242,500 people. It is the fourth largest city in Nepal and is the economic and education centre for eastern Nepal. It has a university and numerous educational institutions and schools. It has an airport and is also connected to other parts of Nepal and to India by road and rail. The applicant attended [school] in Biratnagar and also commenced a degree in [Discipline 1]. She undertook training at [an institution] in Kathmandu. She quickly found work appropriate to her qualifications. Her family provided funds for her to travel to Australia to study. According to posts on her [Social media 1] page reviewed by the delegate she had a relatively independent social life in Nepal. She did not dispute this at the hearing, although she claimed it was done without the knowledge or consent of her parents.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Nepal because of her status as woman without support or because she is a single woman or because she is a woman.
CONCLUDING PARAGRAPHS
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.
Roslyn Smidt 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.
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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
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(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.
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Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
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