2401709 (Refugee)
[2024] AATA 2144
•11 April 2024
2401709 (Refugee) [2024] AATA 2144 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401709
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Sophia Ziebell-Barnes
DATE:11 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 April 2024 at 2:13pm
CATCHWORDS
REFUGEE – Protection Visa – Vanuatu – an actual or imputed practice of black magic / witchcraft – insufficient evidence to suggest any future risk of harm to the applicant – not satisfied the applicant has a real chance of suffering serious or significant harm in home country – delay in applying for protection in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Country of nationality
2. The applicant, who claims to be a citizen of Vanuatu, arrived in Australia on [date] June 2021 on a GD-403 temporary work visa using an apparently genuine Vanuatuan passport, a copy of which is contained in the Departmental file. He has at all times stated that he is a citizen of Vanuatu, and his application was assessed by the Department on that basis.
3. The Tribunal accepts on the evidence before it that the applicant is a Vanuatuan citizen and his claims have been assessed against Vanuatu as the country of nationality and the receiving country.
Protection visa application
4. The applicant applied for the visa on 15 December 2023. In summary, the applicant claimed that:
a. He left Vanuatu because someone wanted to kill him.
b. He received violent threats.
c. Someone tried to stab him.
d. He is worried for his life.
e. He sought assistance from the police but to no avail.
f. Relocation is not possible as Vanuatu is a small country.
5. In response to a request by the Department for further information, the applicant sent what appears to be an article from a travel blog dated 3 November 2013 and titled ‘Black Magic, and why Missionaries stood no chance. Ambryn. Vanuatu’ which details the writer’s experience of travelling around Ambryn and notes ‘Ambryn is still relatively untouched by western thoughts and values, and traditional custom beliefs remain very strong…’[1]
[1] In a letter to the Department dated 24 December 2023 the applicant stated that:
a. He fears his life is in danger if he returns to Vanuatu due to black magic.
b. He does not practice black magic, but other people see him as a threat and want to blame him when something bad happens (death, sickness, famine, natural disasters etc).
c. He escaped to Australia and did not know which visa to apply for and just took what was available at the time. Due to the culture shock of adapting to life in Australia he was delayed in applying for the correct visa.
7. On 25 January 2024, with the assistance of an interpreter and Refugee Legal, the applicant provided a statement (the statement) wherein he claimed that:
a. He fears for his life in Vanuatu because people presumed that he practiced black magic and consequently wanted to harm him.
b. He comes from the island of Ambrym, where black magic plays a big role in people’s lives.
c. He was targeted by people in Ambrym whenever someone died or became sick, and he was always blamed for any adverse event that took place on the island because it was presumed that he would follow his father’s steps and practice black magic when he turns [age].
d. He did not practice black magic, but people assumed that he did and caused bad things to happen.
e. He was questioned by a group of people in his village because someone was sick. The group threatened to harm him if the person died. However, the person did not die, and the group believed that the person survived because they had threatened the applicant.
f. He was targeted by a group of people after someone on the island suddenly died when he was around [age] or [age] years of age.
g. Consequently, he fled his island and hid in [Village 1] village in Port Vila. However, he was rejected by the village community. People from this village came to his house with weapons in an attempt to kill him. He stayed with his mother and partner while keeping a low profile.
h. He made complaints to the police in the past regarding the harassment he endured from the people, but they did not provide him with adequate assistance or protection because they were also scared of black magic.
i. It took him two and a half years to lodge his PV application after arriving in Australia because he suffered emotional and financial hardship upon his arrival, and he was unfamiliar with the Australian law.
8. The delegate did not interview the applicant, but ultimately refused the application for a protection visa on 1 February 2024, not being satisfied that the applicant was a refugee as defined in s 5H(1) of the Act and therefore that the applicant was not a person in respect of whom Australia had protection obligations.
9. The delegate also considered the applicant’s claims under the complementary protection criteria but was not satisfied that as a necessary and foreseeable consequence of being returned to Vanuatu there was a real risk that the applicant would suffer significant harm and accordingly found that the applicant was not a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) of the Act.
Application for review and material received pre-hearing
10. On 2 February 2024, the applicant applied to the Tribunal for review of the delegate’s decision.
11. On 6 March 2024 the applicated lodged a ‘Response to hearing invitation’ form with the Tribunal wherein he stated that:
a. He is dyslexic and cannot concentrate when reading, writing and communicating in English and experiences a lot of difficulty understanding English.
b. He does not understand his migration issues and required his room mate to be present to assist in communication.
c. He would like his room mate to be present for the hearing as he knows the full extent of his protection claims.
12. On 6 March 2024 the Tribunal wrote to the applicant advising that:
a. An interpreter would be available to assist him throughout the hearing and he did not have to communicate in English.
b. He was able to have a support person present at the hearing, but it was a matter for the Department (or those responsible for detention) as to whether his roommate would be able to attend. It was stressed that support people are unable to take any active part in the hearing.
c. He may also call witnesses who can appear to give evidence in support of his claims in person or by phone/video.
The Tribunal hearing
13. The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
Criteria for a protection visa
14. 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.
15. 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).
17. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
19. 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
20. The issues in this review are whether there is a real chance that, if he returns to Vanuatu, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
21. For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed.
The applicant’s personal background
22. The applicant is a [age]-year-old Christian male. In his protection visa application (application), the applicant claimed to be born in Port Vila, Vanuatu and this is corroborated by the applicant’s evidence at hearing and from his passport.
23. The information provided by the applicant in the application, the statement and at hearing is often contradictory and the Tribunal has found it difficult to establish an accurate narrative of the applicant’s background.
24. At hearing the applicant gave evidence that he has one sibling, an older sister, who lives in Port Vila. However, in his statement the applicant claimed to have two siblings who live in Port Vila.
25. The applicant stated at hearing and in the statement that his parents are divorced. He could not recall at hearing when his parents had divorced. The applicant gave evidence that his mother lives on Ambryn island and that he was not sure where his father lives. Later in the hearing he stated that his mother lives in Port Vila and his father lives on Ambryn island which accords with the information provided in his statement. At hearing the applicant stated that he did not know if his parents currently worked and he could not remember what work they had previously done.
26. At hearing and in the application the applicant stated that he grew up in Port Vila and attended school in Port Vila. In his statement the applicant claimed that he grew up on Ambryn island and later moved to Port Vila.
27. The applicant stated at hearing that he left school after completing [a grade] in Port Vila and that he had never worked in Vanuatu and went to live with his father on Ambryn island once he had finished school.
28. The applicant has a partner/ex-partner and two children aged [age] and [age] years who lived in Port Vila the last he knew. At hearing the applicant gave evidence that he lost contact with his family in 2021 when he stopped working. In his statement the applicant claimed that he speaks with his children every day.
29. The applicant stated at hearing that he lived in [Village 1] in Port Vila with his mother for two to three years before coming to Australia in 2021.
30. When asked at hearing what his intention was in coming to Australia, the applicant stated that he came here to help his family and to stay and work so that he could financially support his family.
31. Once in Australia, the applicant worked on a [farm] in [City 2] from June to December 2021 but left due to the low wages he was paid and has not worked since resulting in periods of homelessness.
32. For present purposes, the Tribunal accepts the following matters to be true:
·The applicant has two siblings, one of whom is a sister who lives in Port Vila.
·His parents are divorced.
·His mother lives in Port Vila.
·His father lives on Ambryn island.
·He has a partner/ex-partner and two children, all of whom reside in Port Vila and he remains in frequent contact with his children.
·The applicant lived with his father on Ambryn island at some point.
·The applicant lived with his mother in Port Vila for two to three years before coming to Australia.
·Black magic / witchcraft plays a significant cultural role on Ambryn island.
·The applicant came to Australia with the intention of working and financially supporting his family.
·The applicant worked on a [farm] in [City 2] from June to December 2021, left due to the low wages and has not worked since.
·The applicant is dyslexic and has experienced periods of unemployment and homelessness in Australia.
33. The Tribunal does not accept that the applicant lost contact with his partner/ex-partner and children in 2021 after he finished working given the contrary information detailed statement provided by the applicant with the assistance of an interpreter and legal representative.
34. The applicant stated at hearing that he had ‘a mind problem’ and cannot remember some things as he has memory difficulties and is unable to obtain medical assistance as he is currently residing in a detention centre. The Tribunal confirmed with the applicant that he had access to and has consulted with a doctor in the detention centre, but he was unaware of any relevant diagnosis. The Tribunal stressed that the applicant should advise the Tribunal if he experienced any difficulties during the course of the hearing or wished for any questions to be repeated.
35. The Tribunal does not accept that the applicant has been unable to obtain medical assistance in the detention centre and in the absence of any known diagnosis or any medical material or other relevant information, the Tribunal does not accept that the applicant experiences memory difficulties.
Protection claim
36. Essentially, the applicant’s claim pertains to a fear of harm relating to an actual or imputed practice of black magic / witchcraft.
Black magic / witchcraft
37. At the outset, the Tribunal notes that the terms ‘black magic’ and ‘witchcraft’ were used interchangeably by both the applicant and the Tribunal during the hearing and in this decision.
38. The applicant gave evidence that he is afraid to go back to Vanuatu as he was accused of practicing black magic / witchcraft because he had lived with his father on Ambryn island. When asked why people thought that he practiced witchcraft the applicant stated that people thought that maybe his father had shown him something to practice because he lived with his father. The applicant stated that he believes in black magic / witchcraft but does not personally practice it.
39. When asked by the Tribunal to explain his father’s practice of witchcraft or black magic the applicant stated that he has heard of it, but has never seen it himself, that witchcraft ‘is invisible’, one cannot see it and ‘if they attack you using witchcraft and you go to the hospital you won’t get healed by the hospital’. When asked if his father practiced witchcraft the applicant stated again that he has heard of it, but has never seen it, ‘it is not like a gun pointed at you’, ‘it is invisible’, but he does believe that his father practices witchcraft. He could not remember if his father had ever discussed witchcraft with him and he stated that his mother had never discussed his father practicing witchcraft with him.
40. When asked how he knew that his father practiced witchcraft the applicant again stated that he had heard it from people that his father was practicing it, but he had not seen it himself. When asked by the Tribunal from whom he had heard this the applicant said ‘people from the village’ and ‘they blaming us that we killing someone’ and ‘they tell me that I am doing the black magic too but I have not been practicing’. When pressed by the Tribunal as to whether he had any specific examples the applicant said ‘if someone sleeps at night and doesn’t wake up in the morning…is dead they believe that it’s witchcraft’ and ‘if you get an injury in your body, a big injury that just happened instantly and you go to the hospital and they could not cure, they believe it is witchcraft.’
41. The Tribunal asked the applicant to provide an example of when the people in the village said that his father was practicing witchcraft and to specify what was said, where he was when it was said and who said it. In response, the applicant stated ‘it’s the people from the village, I haven’t known the tribe or the name’ and ‘it’s just the people from the village just coming blaming us’.
42. The applicant claimed ‘they even harm me, they come and broke my collarbone’ and ‘they threatened to kill me with a hook’. When asked when his collarbone was broken, the applicant stated ‘a long time’. When pressed by the Tribunal he said that he could not remember when this happened. When asked by the Tribunal if he could remember if the event occurred five years, ten years or twenty years ago, the applicant responded that it occurred ‘in like 2015’. When further pressed by the Tribunal as to the specific details of the attack and where exactly the attack occurred, the applicant said that he was on the island of Ambryn, but he could not remember the name of the village. When asked who had attacked him the applicant responded ‘the people in the village’. The applicant stated that he did not seek medical treatment and he does not have any photos, reports or other evidence of the collarbone injury.
43. When asked when he was threatened with the hook the applicant stated that he could not remember when this was and that ‘it was a long time’. When pressed as to whether it was perhaps around the time of the collarbone attack or when he was at school, the applicant stated that he could not remember. When asked who threatened to kill him with the hook the applicant stated ‘the people from the village’ and ‘there were too many, I was scared and running for my life.’ When asked where on Ambryn island he was during the hook attack the applicant said that it happened at home and that the people from the village came to his house. The applicant was unable to say how many people attended his house to attack him.
44. The applicant went on to state that the hook attack was not merely a threat, but rather he was physically attacked with a hook and that he had a scar(s). The Tribunal did not seek to view the scar described by the applicant on the basis that the presence or absence of a scar would be of limited probative value as a scar may be present on a body for any number of reasons. Further, the Tribunal was mindful of maintaining the applicant’s physical dignity and an appropriate and respectful hearing process.
45. The applicant then stated that the broken collarbone attack and the hook attack were actually both part of the one incident. The Tribunal questioned the applicant as to why he had stated earlier that the collarbone attack happened in 2015 but claimed not to know when the hook attack happened. The applicant responded ‘The thing is I can’t remember what I’m telling you, but I think it’s the same time.’ When asked if he ever reported the attacks to the police, the applicant stated ‘the police are so, so scared of the witchcraft. It’s like witchcraft is affecting the police to weaken their minds’. The applicant claimed that he did call the police, but they did not take any action.
46. The applicant stated that following this attack he ran away from Ambryn island to [Village 1] in Port Vila. When asked by the Tribunal if there were other occasions after he moved to [Village 1] when people attacked him or threatened him, the applicant stated that there were no attacks, but he continued to receive threats. The applicant claimed that the word was spreading that he was practicing witchcraft and ‘if people were sick they were blaming me that I was doing this thing’, but he could not remember clearly as he was having trouble with his memory. The applicant was not sure when the threats started, that it was just going around the village when someone was sick or dead and it was ongoing up until he came to Australia. The applicant gave evidence that if he returns to Vanuatu the ‘they will still come and accuse me because when I was on Ambryn they accused me and when I come back to [Village 1] they continue to accuse me so I don’t have a place to go’.
47. When asked if there was anything else he wished to tell the Tribunal in relation to the harm suffered or threats received in Vanuatu the applicant stated that he wanted to stay here to help his family and if he returns to Vanuatu maybe the person who is practicing witchcraft, might do witchcraft on him and that maybe he will die. His aim is to stay here and help his family.
48. When asked if there was any other reason why he did not want to return to Vanuatu, the applicant stated ‘That’s the only thing I wanted to mention. I want to be here, to work and bring the kids over to study and to have a happy life here, instead of continuing to face the threats from the people’. I am far away so that nothing is happening now. Threats and other things will happen if I get close to them.’
49. The Tribunal has reviewed open source country information that describes Ambryn island as a place where black magic / witchcraft play an important role in society.[2] Further, on 24 September 2022 the Daily Post published an online article detailing the death of one person and the injury of three others in Vanuatu following an alleged witchcraft incident in the Middlebush area on Tanna island.[3] The Tribunal accepts that black magic / witchcraft forms a part of the cultural beliefs and practices of the Vanuatuan people. The Tribunal also accepts that the applicant believes in black magic / witchcraft but does not personally practice it.
[2] ‘Mysteries of the Vanuatu Black Magic Tours’, Air Vanuatu – stagingtm.airvanuatu.com/home/travel-information/vanuatu-black-magic-tours
[3] 1 dead, 3 Injured Over Witchcraft Allegations | News | dailypost.vu
50. When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants, including issues related to anxiety in a hearing. There may also be memory issues resulting from the lapse of time, and cultural issues and sensitivities which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[4]
[4] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482
51. However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
52. In the present case, the applicant has not provided sufficient detail to establish the relevant facts of the case in support of his claims. The Tribunal does not find that anxiety, memory difficulties from the lapse of time or cultural sensitivities account for the inconsistencies or lack of detail and specificity in the applicant’s claim and evidence and accordingly, the Tribunal does not accept that the applicant has been threatened and/or harmed in the past due to an actual or imputed practice of black magic / witchcraft. For the reasons outlined below, the Tribunal has concerns about the credibility of the applicant’s evidence and found the applicant’s evidence at times to be vague, lacking in detail or specificity and occasionally confusing and evasive.
53. There was no evidence before the Tribunal to indicate that the applicant’s father practices black magic / witchcraft. The applicant stated that he had never seen his father practice black magic and had never discussed the practice of black magic with either of his parents. Despite being asked for specific details as to when, where and by whom such allegations were made, the applicant was only able to make vague and general assertions that he had heard that his father practiced black magic from ‘people in the village’. Given the history of events outlined by the applicant, the Tribunal does not find it plausible that the applicant could not identify a single person who had made black magic accusations towards him or his father or a specific occasion on which he or his father had been accused of practicing black magic / witchcraft. Accordingly, the Tribunal does not accept that the applicant’s father practices black magic, that the applicant and others in Vanuatu believe this to be true, that others in Vanuatu believe that the applicant’s father may have shown him how to practice black magic or that the applicant was accused of practicing black magic.
54. The Tribunal notes the inconsistencies in the applicant’s evidence regarding the ‘collarbone attack’ and the ‘hook attack’. The Tribunal notes that the applicant ultimately claimed that both attacks were in fact a single incident, yet initially claimed that he could not remember the name of the village where his collarbone was broken but that he was threatened/attacked with a hook at his home. The Tribunal does not find it plausible that the applicant could not remember where he was attacked in relation to the collarbone attack or provide any detail as to the identity of the attackers other than that they were ‘people in the village’. The Tribunal does not accept that the applicant was physically attacked, with or without a hook, by people in the village because of his actual or imputed practice of black magic and suffered a broken collarbone as a result or that reports regarding same were made to the police. The Tribunal also does not accept that should he return to Vanuatu that applicant may die from someone else possibly practicing witchcraft on him.
55. Given the applicant’s general and vague description of having been subjected to further threats in [Village 1] and his inability to specify what the threats were, who made the claimed threats and when they were made, the Tribunal does not accept that the applicant was subjected to threats in [Village 1] related to his actual or imputed practice of black magic / witchcraft or for any other reason.
56. Given the above, the Tribunal does not find the applicant’s claims in relation to the actual or imputed practice of black magic / witchcraft to be credible. It follows that the Tribunal does not accept the following matters:
a.The applicant’s claim for protection as outlined above at [4].
b.The matters asserted in the applicant’s 24 December 2023 letter to the Department at [6].
c.The matters asserted in the applicant’s 25 January 2024 statement at [7].
57. Given the Tribunal’s findings, there is insufficient evidence before the Tribunal to suggest any future risk of harm to the applicant. Accordingly, the Tribunal does not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future in relation to the actual or imputed practice of black magic or for any other reason.
Delay
58. The Tribunal enquired as to why it took the applicant two and a half years to apply for protection. The applicant stated he thought that maybe there was just one visa to work in Australia and that someone else had applied for the visa on his behalf.
59. In the statement, the applicant detailed that he was experiencing emotional and financial hardship in an unfamiliar country and was homeless. He had not realised that his visa had expired and that he had to apply for another visa in order to legally remain in the country.
60. Given the applicant’s stated history of dyslexia, illiteracy, unemployment and homelessness, the Tribunal accepts that the applicant was unaware of the relevant visa requirements and does not place any weight on this issue in rejecting the applicant’s evidence and claims.
CONCLUSION
61. 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
64. The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophia Ziebell-Barnes
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
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
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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