2301054 (Refugee)

2301054 (Refugee) [2023] AATA 2326 (21 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Bimal Bhattarai (MARN: 9685736)
CASE NUMBER: 2301054

COUNTRY OF REFERENCE: Nepal
MEMBER:Luke Hardy
DATE:21 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 April 2023 at 2:58pm
CATCHWORDS
REFUGEE – protection visa – Nepal – religion – Brahmin caste – political opinion – opposition to the Maoists – insults towards Brahmins – forced recruitment – threats of killing – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant [the applicant] is a citizen of Nepal. He entered Australia [in] July 2019 on a student visa valid to September 2022. His studies were affected by Covid-19 lockdowns. He was arrested and was in prison for some time. His Certificate of enrolment (CoE) was cancelled. He was released into [Immigration Detention]. He applied for the PV on 31 December 2022. The delegate refused to grant the visa on 23 January 2023.
[The applicant] appeared before the Tribunal by video link on 6 April 2023 to give evidence and present arguments.
The Tribunal hearing was facilitated by an interpreter in the Nepali and English languages. [The applicant] generally preferred to give evidence in English throughout.
The applicant is represented in relation to the review. His adviser did not attend the hearing.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which contains useful summaries of his claims and evidence to the Department of Home Affairs (the Department).
During the hearing I checked with [the applicant] regarding his health, medication regime and capacity to understand and respond to questions coherently. Though his speech was often slow, I am satisfied that he had a meaningful opportunity to discuss his claims and was not prevented from giving meaningful evidence by any condition or circumstance outside of his control.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made to the Department
[The applicant’s] claims have been usefully and uncontroversial summarised in the primary decision record as follows:
• He belongs the Brahmin ethnicity ‘caste’ and the Hindu religion, and is from a middle class
family.
• He grew up in the violent era of the Maoists uprising, with the entire country engulfed by terror activities.
• His father, who is a priest and holds significant influence, was not attacked physically, but was verbally insulted, and almost financially destroyed, forced to give money and other
commodities, with little left for his family to survive.
• He came to Australia to study at university when he was [age], with his father sending him to
Australia to save his life from the Maoists, who have been using youth for their activities, even
after the peace settlement.
• If he returns to Nepal he will be harmed and mistreated, because the enemy he fears is in
power and is the prime minister.
• He will be forced to join the Maoists and be in their campaign, including armed training.
• He is also scared to return to Nepal because he has a mental condition, having been unwell
since his childhood, and seeing his father being insulted in Nepal impacted his mental health.
• In Nepal when he had no medicine he used to sometimes take Marijuana to help him calm
down, but he is currently receiving treatment in detention.
• His condition is not treatable in Nepal, which is poor and has limited resources, and where the authorities are helpless, and he will diminish without treatment if forced to return with his
medical condition.
In a further statement to the delegate, [the applicant] submitted the following claims:
• Since the Maoist war the Brahmins, a high status class of priests who live a ‘holy life’, have been insulted, and his father and his family have been a victim of this.
• The insults to his father and other Brahmins was putting their lives at risk, which is why his father wanted him to go overseas when he was [age].
• He had been contacted many times through friends and associates to contribute to the Maoist organisation, but was doing fulltime study and then came to Australia, but if he stayed he would have been forced to work for the Maoists, which is what he and his family worry about.
• He and his father have refused contacts from the Maoists to send him to volunteer in the organisation, and if he permanently lives there he will suffer the same.
• The Maoists will force him into this situation because they need to revamp their vote, because the Maoist prime minister is there by default because neither major parties could get sufficient votes.
• The Maoists are in power and unopposed, and are still a threat to him and to the country, forcing people to join them, and insulting people like his father.
• Whilst there is a layer of protection in his hometown where his father has influence, he is still not safe there, and if he relocates to another part he will no protection at all.
• He has a mental illness of some sort, but he does not know what it is, but has been given medication named Olanzapine. He indicates that he had a fall and sought medical help from the detention people and he was classed as a ‘suicide risk’ and a ‘suicide attempt’ [sic]
• He has a heart condition, but does not know what the problem is, or why he was hospitalised, but he is given medication continuously.
• His late application for a protection visa is because he was a student when he initially arrived in July 2019 and was confident of getting temporary and permanent residence through normal processes, without triggering protection, but he has been in detention and prison for almost two years, and initiated protection on the advice of the border force.
• He indicates he was enrolled in study in 2019 and then COVID struck, and he was arrested and was in prison for some time and the college cancelled his Confirmation of Enrolment (COE) and the department cancelled his visa. He indicates no consideration was given to his situation, COVID and his mental illness, and everyone wanted to get rid of him.
• He indicates it is not viable for him to go to India, where he has never been, has no friends or relatives, does not speak the language, and does not have the skills or funds to survive. He further indicates that Indian’s discriminate against Nepalese, and most Nepalese are only engaged in lower jobs.
The applicant also provided the Department with a copy of the following document:
• An excerpt of a ‘Discharge Summary’ from [a named hospital], from October 2022, which refers to the applicant having chest pains and being treated for Pericarditis, and behaving erratically, and having a prescription for Olanzapine.
Independent country information
I have had regard to the following material from DFAT’s Country Information report: Nepal (1 March 2019):
2.3 In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.
2.4 In February 2005 the then-king assumed absolute power in a coup supported by the army. A people’s movement in April 2006 and a joint alliance of democratic parties and the Maoists forced the king to relinquish direct rule. Parliament subsequently agreed to abolish monarchical rule, and Nepal became a republic in 2008 with the election of the first Constituent Assembly. The Maoists formed the first government, which proved to be short-lived, resigning in May 2009. A coalition government was then formed until it, too, resigned in July 2010. In September 2011, Dr Baburam Bhattaerai of the UCPN-M party formed government with the Madhesi alliance from the Terai. Political stalemate and questions concerning Nepal’s federalist structure and how to accommodate ethnic and linguistic minorities led to the dissolution
of the first Assembly in 2012 …
Fear of Maoists
3.42 Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
3.43 Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
3.44 While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
3.45 Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.
Evidence to the Tribunal
I first interviewed [the applicant] about the current circumstances of close family members. He told me he has [a] brother who is a student, having been studying [occupation 1] in [Country 1] for the last four years. He said his sister lives in Nepal. He said his sister is married with children and lives near the family home in Rupendehi in Lumbini, which I note is about 270 km from Kathmandu by road[1]. He said his sister’s husband works as an [occupation 1] commuting to [a named town], which looks about [distance] away on a Google map.
[1]
[The applicant] told me his father is a Brahmin priest and proprietor of a [products 1] shop. He says his mother helps run the shop. He said they have been running the shop for the last six or seven years. He said that before starting the [products 1] shop, his parents ran a [products 2] store at the same address. He said they ran the [products 2] shop back since when he was young.
[The applicant] acknowledged that his father’s role as a priest means that the local community relies on him in matters such as ritual. After first opining in the negative, he acknowledged that his father’s priestly role gives him a position of respect and responsibility in the community. He also acknowledged that his family members in Nepal are getting on with their day-to-day lives. I note that in his original PV application, [the applicant] said he maintains contact with his family by telephone.
[The applicant] told me he came to Australia to study and that he chose [occupation 1] because he wanted a job in that field. He described how illness and the Covid pandemic interrupted his studies so dramatically that his CoE was cancelled. After some recollecting of sequences of events he arrived at November 2020 as the time of the CoE cancellation. This seemed correct.
I referred [the applicant] to his claims about past encounters with Maoists. I then referred him to the descriptions he had just given regarding his family members in Nepal. I asked if any past trouble with or fear of Maoists might have decreased or vanished over the years. In reply, he said that in Nepal everyone is a Maoist, even the police. I reminded him of his evidence about his parents and brother-in-law continuing day-to-day to go about their business, indicating that there did not appear to be evidence of his family facing serious harm. In reply, he said the Maoists come to the shop asking for and taking food. He said the Maoists sometimes humiliate his parents calling them lower-caste. This claim struck me as a confused one since [the applicant’s] family is Brahmin which is a priestly and therefore very high caste. It seemed far-fetched that calling [the applicant’s] father low-caste would have much impact. Meanwhile, I note that the Maoist movement in Nepal, which is avowedly anti-caste, has been led largely by persons who are themselves Brahmins[2]. I also note that the decade-long he Maoists People’s War ended in 2006[3].
[2] “Q&A: Nepal’s Maoists and forgotten promises,” AlJazeera, 8 January 2016,
[3] “The legacy of the decade-long ‘people’s war’,” Kathmandu Post, 13 February 2021,
Given that [the applicant’s] claims to the Department focus on alleged mistreatment of his father, I asked him to explain the logic of staying home and sending his sons abroad. He said his father stays where he is because he relies on votive donations for his income. He said his father is poor. I questioned how poor his father is, given that two sons were sent abroad to study [occupation 1]. In reply, [the applicant] said his father took out a loan.
I put to [the applicant] that on his evidence, his brother who has been studying [occupation 1] in [Country 1] for the last four years has not sought asylum. In reply, he said his brother was only a student initially until his father said it was too dangerous to come back to Nepal. Asked if his brother is no longer a student, he said, “I think so.” Asked to confirm whether his brother had ceased studying in [Country 1], he said, “yes.”
I asked [the applicant] why he did not apply for a PV closer to the time he lost the right to study in Australia, becoming liable to deportation. He had evidently lost his CoE in late 2020. In rely, he said he did not apply for protection back then because up to that time his father had not yet said anything about the situation in Nepal. This struck me as inconsistent with the initial claims in this matter purportedly acknowledging that the father arranged to send him to Australia to save him from the Maoists.
[The applicant] mentioned having applied to sought to apply for a medical treatment visa. In any event, he said the effort did not succeed.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220 .
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[7] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that [the applicant] is the [son] of a Brahmin priest in Nepal who runs a [products 1] shop with his wife. I accept that [the applicant] comes from an area in Nepal that likely suffered during the People’s War. However, I find on the evidence before me, including quite detailed evidence of the day-to-day lives of [the applicant’s] family members, that the war and the intimidations concomitant with it are long passed. At their highest, [the applicant’s] claims about vicissitudes faced by his parents are relative poverty, verbal insults and people demanding free food. None of this strikes me even cumulatively as persecution and none of it gives rise in my assessment to a real chance of [the applicant] being persecuted, let alone for any of the five reasons in s.5J(1)(a) of the Act.
[The applicant’s] overall case is undermined by two unresolved inconsistencies: one relating to his brother’s student status in [Country 1]; the other, about why he himself did not seek protection in Australia much sooner than he did. Ultimately, I find that I cannot rely on [the applicant’s] substantive claims. I do not find them truthful.
[The applicant] claims that he will not be able to receive adequate medical attention in Nepal, but there is no evidence of an intention to withhold such, let alone for a reason cited in s.5J(1)(a) of the Act. In any event, I am not satisfied on the evidence before me that [the applicant] would be unable to access relevant treatment for the issues diagnosed.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Nepal, either separately or cumulatively, in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
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).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Nepal, I find that Nepal is the receiving country in this matter.
[The applicant] claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant] protection claims can no more succeed as complementary protection claims than they have as refugee claims.
[The applicant’s] medical issues invite special consideration, but I am not satisfied that there would be an intention on anyone’s part in Nepal to deny him medical and psychological attention.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Nepal, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2023] AATA 2326

21 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction