2211511 (Refugee)

2211511 (Refugee) [2023] AATA 1238 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2211511

COUNTRY OF REFERENCE: Nepal
MEMBER:Senior Member G.A.F. Connolly
DATE:02 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 March 2023 at 4:07pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – involvement in student politics – applicant convicted of several offences – credibility issues – delay in applying for protection – return visit to Nepal – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5(1), 5H, 5J, 36, 56, 65, 423A, 499, 501
Migration Regulations 1994, Schedule 2
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
Nominal Defendant v Clements (1960) 104 CLR 476
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 20 July 2022 by a delegate of the Minister, in the Department of Home Affairs (Department), to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male and a citizen of Nepal.
On 06 January 2017, the applicant lodged an application for a Student (subclass 500) visa to enter Australia.
On 30 January 2017, the applicant’s Student (subclass 500) visa was granted.
[In] February 2017, the applicant arrived in Australia on a Student (subclass 500) visa.
On 12 April 2019, the applicant lodged an application for a Student (subclass 500).
On 17 May 2019, the applicant’s Student (subclass 500) visa was granted.
[In] October 2019, the applicant departed Australia on a Student (subclass 500) visa and arrived in Kathmandu, Nepal, [in] October 2019.
[In] November 2019, the applicant returned to Australia on a Student (subclass 500) visa after being in Nepal for just over one month.
[In] July 2021, the applicant pleaded guilty in, and was convicted by, the District Court of New South Wales, of his having, on multiple occasions, intentionally sexually touched and had sexual intercourse with a child aged between 10 and 16 years of age. The applicant was sentenced to an aggregate sentence of two years imprisonment, with a non-parole period of one year and one month.[1]
[1] [Source deleted].
On 20 July 2021, the applicant’s Student (subclass 500) visa was cancelled on character related grounds under s 501(1) of the Act.
On 25 May 2022, the applicant lodged an application for a permanent Protection (subclass 866) visa.
On 20 June 2022, the delegate of the Minister of Home Affairs sent the applicant a letter[2] asking the applicant to provide more information regarding the claims he has made in his application for a protection visa. In particular, the delegate noted in the letter[3] that, notwithstanding the applicant’s claim, these four identifiable problems exist, and the applicant would need to provide further information in order to assess his claims:
A. the applicant’s significant delay in lodging his claim for a protection visa;
B. the applicant’s return to Nepal in October 2019 “…raises concerns about the genuineness of [his] protection claims”;
C. the lack of “key details” in respect of the applicant’s claim he was “…threatened and harmed in Nepal.”; and
D. insufficient information as to whether the applicant’s fear of harm in areas beyond his home region in Nepal.
[2] Pursuant to s 56 of the Act.
[3] Set out in Protection Visa Decision Record dated 20 July 2022, at pages 3-5.
On 20 July 2022, the delegate of the Minister of Home Affairs refused the application by the application for a protection visa. The delegate noted that the applicant never responded to the delegate’s letter (set out in [13] above) at the time of the delegate’s refusal of the applicant’s claim.[4]
[4] Set out in Protection Visa Decision Record dated 20 July 2022, at page 5.
[In] August 2022, the applicant became eligible for parole.
On 09 August 2022, the applicant applied to this Tribunal for review of the Department’s refusal to grant him a protection visa.
On 21 October 2022, the applicant appeared in person before the Tribunal to give evidence and to present his arguments. The applicant did not rely on evidence from any other witnesses in support of his applications. The applicant had filed with the Tribunal the following documents which were read by me and form part of the applicant’s case:
A.statement dated 05 October 2022 (headed “November 2021”, unknown why)
B.a document purporting to be an Emergency Card from [a named] Hospital dated 13 July 2019 in respect of his sister, [named];
C.a document purporting to be a Nepalese student union card, dated [in] October 2013;
D.Character references dated 07 October 2022 and 08 October 2022 from friends of the applicant;
E.a copy of a document purporting to be both notarised in Nepal and a “dispatch” from the Government of Nepal, Ministry of Home Affairs, District Police Office of [location], dated [in] February 2022, supporting the applicant’s claim as it said “….there is security risk to the life of [the applicant]”; and
F.A copy purporting to be both notarised in Nepal and a news report in the [named newspaper], dated [in] January 2022, noting that the applicant was imprisoned in Australia “….for accusation of sexual molestation.” This document noted that the applicant “…had come to Australia for education on 2017AD. [A named] Court [sic] in July 2021 sentenced Mr [applicant] for 2 jail term for different sexual offences.”
I say more about documents [E] and [F] below in my reasons.
At the conclusion of the hearing, the applicant was given leave to file by 04 November 2022 any further submission addressing any matter that the applicant wished to address, particularly, adverse matters that had been raised with the applicant in the hearing. Nothing further was received by the Tribunal from the applicant despite this grant of leave.
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 (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) (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 Migration 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.
The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.
In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.[5]
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
No two cases are the same and each case must be judged according to its own particular facts and on its own particular merits.
CONSIDERATION OF Claims and evidence
The applicant’s claim and evidence
As noted above, the applicant was, after the hearing, given leave to file further material in support of his claim. Nothing was received by the Tribunal. Accordingly, the only evidence that can be relied on to assess the applicant’s claim is the materials filed (and noted at [17] above) and what the applicant said in support of his own case in the hearing.
An obvious issue in this case is the applicant’s significant delay in making his application for a protection visa. The history of the applicant’s arrival and stay in Australia, his return to Nepal, then his return to Australia, and his almost three year delay in filing a protection claim, is conduct that is at odds with that of a person who claims, relevantly, to be a Nepalese who has either a well-founded fear of persecution in Nepal or someone in respect of whom, if they are removed from Australia to Nepal, faces a real risk they will, as a necessary and foreseeable consequence of being removed to Nepal, suffer significant harm: s36(2)(a) and (aa).
It was put, repeatedly, to the applicant that he, very simply, engaged in bizarre delay by waiting so long to make his application for protection – an application which, as a matter of chronology, came only after the cancellation of his student visa on character grounds, which, in turn, was a consequence of his criminal convictions in July 2021 for the most serious sexual offences against children.
It was also put to the applicant that, despite his claims of fearing persecution, he did, in fact, return to Nepal in Oct-Nov 2019 - and, even after this return to Nepal, he did not file any claim for protection until May 2022. The applicant’s explanation was that he had returned to Nepal to help his sister, who was in poor mental health, that his sister was his best friend, and that she was missing the applicant. The applicant said that, in visiting his sister, he had “risked” his life in Nepal and, when there, he kept a “low profile”.
When asked why, then, the applicant returned to Australia in November 2019 but did not file a claim for protection until April 2022, some almost 3 years later. The applicant said that he did not see a necessity to make a protection claim as he believed that he could obtain permanent residency in Australia. This claim was repeated several times during the hearing. When the applicant was asked, again, why did he not make a protection claim on his return to Australia in November 2019 - especially when he said he had kept a “low profile” in Nepal – the applicant said that he was confident that he would obtain permanent residency and there was “…no necessity of applying for a protection visa.” The applicant’s delay was explained, repeatedly, by the applicant saying that he never saw the necessity of applying for a protection visa until his student visa was cancelled. The applicant said, towards the end of the hearing, that he was applying for a protection visa, in his words, “Now I have to, ‘coz I don’t have any option.” The applicant said, also, he had nothing to go back to in Nepal.
On this ground, alone, any decision-maker would struggle to make sense of the applicant’s explanation of his going back to Nepal in Oct-Nov 2019 when his case was that, at all material times since 2017, he was, or he would be liable to be, threatened with harm. The applicant’s delay in making his protection claim, and his attempts to explain this delay, were and remain, in plain terms, unconvincing and unsatisfactory.
It was, similarly, put to the applicant that the evidence of his claimed political involvement was bare, insufficient, and/or unsatisfactory. The applicant’s primary claim was that, in his hometown in Nepal, he feared harm of a poorly particularised and vague nature. The applicant was unable to reduce to words what, precisely, it was that the applicant said that he feared. The applicant made vague claims to have been involved in student politics but, even so, this involvement is hard to understand as a source of harm from what he said in the hearing and from the materials he filed. The applicant has not and seemingly cannot explain why he was harmed in Nepal in the past (if, indeed, this happened), nor why he may be harmed in Nepal in the future, should he return. It is hard to see why the applicant would be in any sort of danger when he did return to Nepal in October-November 2019 and suffered no harm. Further, the applicant has now lived outside Nepal for almost six years now and has already returned once to Nepal without suffering any harm. It is unclear to me what exactly, or even inexactly, it was, it is, or it would be, in the applicant’s past that would cause him to be apprehensive about returning to Nepal. It is, put simply, very hard for any decision-maker to understand what is the nature of, and the source for, this applicant’s claimed fear of persecution and/or harm. In summary, the applicant did not improve his case in the hearing before me beyond the scant documentary evidence he had filed with the Tribunal.
Assessing the applicant’s credibility
Relevantly, in assessing an applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is this Tribunal required to accept uncritically any and all the allegations made by an applicant.[6]
[6] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and, indeed, almost always will – involve an assessment of the particular applicant's credibility. In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection (this is especially so where an applicant has been held in prison). The Tribunal is, in this case, as in all cases, aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims. At the same time, an applicant who is not credible will struggle to make out their case.
All of this said, as was stated above, the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence, especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[7]
[7] Randhawa (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai; (1994) 34 ALD 347 at 348 per Heerey J; Kopalapillai (1998) 86 FCR 547.
It is noteworthy that s 423A of the Migration Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made earlier, or the evidence not presented, in the time before the primary decision was made. This approach is the application of a rule of common sense in respect of judging adversely an applicant’s credit where she or he has engaged in delay or an omission to speak or act.[8]
[8] see Nominal Defendant v Clements (1960) 104 CLR 476 at 495 per Windeyer J.
The failure of a Nepalese applicant in 2022 to have previously made a claim for protection, that was always open to him to make from his arrival in Australia in April 2017 onwards (especially after he returned to Nepal in October-November 2019), is a failure that needs a satisfactory explanation. In the absence of a satisfactory explanation, as here, then an inevitable adverse judgment will be drawn against the applicant and his case, whether pursuant to s 423A or this basic rule of common sense.
The applicant’s copied documents

The applicant supplied to the Tribunal copies (apparently notarised in Nepal but copies nonetheless) of two documents that are mentioned in paragraph 17 [E] and [F] above. It is noteworthy and adverse to the applicant’s case that he did not supply originals of these documents. It is, again, not for the Tribunal to make an applicant’s case for them. An applicant simply serving up copies of random documents and asking the Tribunal to accept them as evidence of what they purport to say is unacceptable. Were this practice to be allowed, and encouraged, the Tribunal would be swamped in dubious copies with questionable certification or notarisation attesting to their ‘truth’. As it was, the Tribunal could not verify these two notarised but copied documents. It is difficult to give any weight to these documents in all of the circumstances of this case.
Consideration of Credibility
In order to ensure fairness to the applicant, who was and is in detention following his release from prison, he was granted, when the hearing on 21 October 2022 concluded, further time to file additional submissions and further evidence, marked to my attention, to support his claim. There were no other further submissions or further evidence from the applicant, despite this grant of further time.
On one view, though, there is no further evidence that can be provided in 2022, however weighty, that can fill the foundational evidentiary gap left in this case by the applicant over the last five, almost six, years. All of the four identified problems with the applicant’s claim for protection, identified by the Department at [13] above, still remain. The applicant did not satisfactorily address these four identified problems at the hearing nor when given time to do so after the hearing.
Section 423A of the Migration Act requires that in circumstances where the Tribunal is not satisfied with an applicant’s explanation then the Tribunal is to draw an inference unfavourable to the credibility of the claim. I would draw this adverse inference, in any case, against the applicant and his claim, given its contradictions and delay, and its implausibility – indeed, this case’s inability to be believed and to be taken seriously.
FINDINGS
Therefore, on the very bare evidence supplied by the applicant in this case, scarce as it is – and despite the innumerable opportunities afforded to the applicant to give and supply more evidence to this Tribunal – I find that that the applicant is neither a refugee nor is he owed protection by Australia on complimentary protection grounds.
The applicant’s claim for protection lacks any sort of coherence and particularity. It is not the task of this Tribunal to try and construct some case that he as the applicant may have made. Yet, even if that were attempted here, it could not be done, especially given the obvious defects in the applicant’s case and his failure to explain, satisfactorily, the four identifiable problems, set out at [13] above. The applicant’s case is most unsatisfactory, his application for protection cannot be further entertained, and it must be dismissed.
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 complimentary protection 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 was and 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.
Statement made on 02 March 2023 at 4:07pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
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.
…

[2023] AATA 1238

02 March 2023

Key Legal Topics

Areas of Law

Immigration

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