1700549 (Refugee)

1700549 (Refugee) [2020] AATA 711 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700549
COUNTRIES OF REFERENCE:               Colombia and Chile
MEMBER:Luke Hardy
DATE:12 March 2020
PLACE OF DECISION:  Sydney
DECISION:(a) The Tribunal affirms the decision not to grant the first three named applicants protection visas.
(b) The Tribunal sets aside the decision refusing to grant a protection visa to the fourth named applicant and substitutes a decision that his protection visa application is not valid and cannot be considered.

Statement made on 12 March 2020 at 2:38pm
CATCHWORDS
REFUGEE – protection visa – Columbia – Chile – children’s dual citizenship – bar on application unless lifted by Minister – claimed statelessness – not registered with relevant consular authorities – right by birth – fear of criminals and armed groups in Colombia – returnee from a 'rich' country – mere speculation – right to enter and reside in Chile – racism in Chile – decision under review affirmed – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 91N, 91P, 91Q, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 December 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The [main applicant] is a citizen of Colombia; her husband is a citizen of Chile and their children have or are evidently entitled to dual Colombian-Chilean citizenship. They applied for the visas on 24 June 2014. Their file with the former Immigration Department includes acceptable copies of the passports of the two parents along with evidence of their marriage in NSW and the birth certificates of their two children.
The delegate refused to grant the visas on 22 December 2016. The applicants then sought review by this Tribunal.
The applicants attended a hearing before the Tribunal on 10 March 2020. They are unrepresented. They were accompanied by two friends to came to provide social support; one of these minded the two applicant children outside of the hearing room after the hearing commenced. The other remained in the hearing room for the duration.
The hearing was facilitated by an interpreter in the Spanish-English medium.
Certain documents in the Department’s files have been declared non-disclosable under s.438(1) of the Act. However, since these all comprise internal Department working documents, the certificate is invalid.[1] I was thus able to draw the applicants’ attention to the documents which include identity checklists and internal advice to which need and have not had regard in the course of this decision. I assured the applicants that none of the material covered by the invalid certificate has any weight in the matter before me and they indicated that they were happy with the assurance. The hearing then proceeded.
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
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).
Relevantly, 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 is subjected to the death penalty; or arbitrary deprivation of life; or torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits cruel or inhuman treatment or punishment, degrading treatment or punishment, and torture, which are further defined in s.5(1) of the Act: essentially, all three of these definitions 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 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 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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
Sections 91N, 91P and 91Q of the Act
S.91N(1) of the Act refers to protection visa applications made by person with two or more nationalities.
According to S.91P(2) of the Act,
(2) Despite any other provision of this Act but subject to section 91Q, if:
(a) this Subdivision applies to a non-citizen at a particular time; and
(b) at that time, the non-citizen applies, or purports to apply, for a protection visa; and
(c) the non-citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.
According to s.91Q of the Act,
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2) For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.
(3) The power under subsection (1) may only be exercised by the Minister personally…
In view of having two nationalities, Chilean and Colombian, the protection visa application of the infant [third-named applicant] was determined in accordance with s.91P to be an invalid application. However, on 22 February 2016, the Minister exercised the non-compellable power under s.91Q of the Act to lift the bar on the validity of her application in view of her minority.
With regard to the second child, [the fourth-named applicant], it is claimed by [the first-named applicant] in his protection visa application form that he is stateless as he has not been presented to or registered with either the Chilean or Colombian consular authorities. The claim in regard to him is different from that in the case of [the third-named applicant], who [the first-named applicant] identified in the original protection visa application form as having two nationalities, Chilean and Colombian. Meanwhile, the Department accepted [the fourth-named applicant] as a valid applicant in the primary application and the delegate included him in the primary decision. The delegate made a decision on [the fourth-named applicant]’s protection visa application even though she recognised him as having two nationalities, contrary to s.91N of the Act.
[The fourth-named applicant] is at least purportedly included in the current review application. However, the laws of Colombia and Chile (discussed below) apply identically to both children: they both have a right by birth to recognition as both Chilean and Colombian nationals. There is evidently no difference between them in that regard in spite of [the first-named applicant] referring to one as being “stateless”. Relevantly, there has been no request to the Minister to use his power under s.91Q of the Act to allow the application of the baby [the fourth-named applicant] to be a valid one. The Minister has not used his a.91Q powers in regard to [the fourth-named applicant]. On the evidence before me, [the fourth-named applicant]’s protection visa application appears never to have been valid.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether any of the applicants is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed with regard to the first three named applicants and set aside with regard to the fourth.
Claims
[The first-named applicant] is the main applicant in this case, as shown in her “Part C” protection visa application form. The other applicants have all been included as “Part D” applicants, meaning that the success of their respective protection visa applications depends on the outcome of [the first-named applicant]’s. That said, [the first-named applicant]’s claims include concerns for the safety of her children in Colombia and Chile and I have duly considered those claims. It was implicit from the commencement of the hearing that [the first-named applicant] and [the second-named applicant] undertook to speak on behalf of their children who are both still young infants and unable to give evidence for themselves.
[The first-named applicant], from Bogotá, originally came to Australia as a student in 2008 and was the subject of a sequence of student visas. Her last student visa was issued on 6 November 2013 and expired on 14 March 2014.
[The first-named applicant] told me that she came to Australia to study and to be near her brother who resides here. She said that when she first came to Australia she did not put much thought into her future other than to be near her brother. She said her sister lives in [Country 1]. She told me her father died just over a year ago and that her mother had since moved from Bogotá to live with her own mother in the city of Armenia.
[The first-named applicant] claims that she fears being robbed and assaulted in Colombia because of the presence there of criminals and armed groups (including FARC). She claims that if one uses a mobile telephone on a bus one is at risk of having the telephone stolen along with any accompanying children. She told me she had been robbed of personal items about her on a number of occasions. She said at the hearing that she would be afraid to walk her children to school in Bogotá due to the risk of their being kidnapped. She said that she would be more likely than others to suffer such harm due to being a returnee from a “rich” country like Australia, and due to that fact giving rise to inferences about her being wealthy.
I asked [the first-named applicant] if she was able to provide facts on which her claims about being targeted for harm might be founded. She said she had no such evidence to provide. I asked her if anyone she knew had ever been affected by abduction, even abduction of someone else, and she said she knew of no-one in particular who had ever suffered such treatment, but added that she knows of such things happening in Colombia, and not just to rich people.
I asked [the first-named applicant] if she was not merely baldly speculating and she said she was not. I asked her how potentially hostile people would pick her out as a person who had returned from abroad and she said the criminals have networks, including student groups, in Colombia.
[The first-named applicant] said the situation is safer in Armenia where the children’s grandmother now resides. She said that it is safer for members of her family to reside there, although she and her mother fell that the future for her children in Colombia would not be safe.
[The first-named applicant] told me she has a right to enter and reside in Chile on account of her husband being Chilean and that her two children, being Chilean as well as Colombian by right of birth, have the same right. All this information is supported independently.[2] I note that [the first-named applicant]’s recognition of her son [the fourth-named applicant]’s dual Chilean and Colombian nationality has evolved since the time she lodged an application on his behalf for inclusion in her family’s protection visa application.
[2] Canada: Immigration and Refugee Board of Canada, Chile: The procedure that a Chilean citizen's spouse with foreign citizenship must follow in order to obtain temporary or permanent residence in Chile, 2 March 2010, CHL103411.FE, available at: [accessed 10 March 2020]; Canada: Immigration and Refugee Board of Canada, Chile: The procedure that a spouse of a Chilean citizen must follow in order to obtain Chilean citizenship through naturalization, 30 April 2010, CHL103470.FE, available at: [accessed 10 March 2020]; Canada: Immigration and Refugee Board of Canada, Chile: Information on the status of a foreign female married to a citizen of Chile and mother of a Chilean child, and on the steps and/or procedures required for her naturalization, 1 December 1997, CHL28170.E, available at: 10 March 2020]
[The first-named applicant] claims that Colombians face some discrimination in Chile. She said that she had heard from her husband that Chileans complain about Colombian migrants taking Chileans’ jobs, and disparage them as “drug traffickers” and “prostitutes”. Relevant to this, I note that there has been a relatively small number of Colombian migrants including temporary migrants in Chile[3]. I invited [the first-named applicant]’s husband [the second-named applicant] to give evidence about what he had witnessed and told her himself.
[3] In 2013, there were around 280,000 migrants from Latin America in Chile, of whom around only 15,000 were of Colombian origin: UNICEF,
[The second-named applicant] told me that there is criminality and racism in Chile. He said that Chile is a racist culture due to German migrants “who just want Chileans there”. He said that the discrimination is manifested in verbal abuse and occasional acts of violence. [The first-named applicant] added that her children will be bullied in school for being Colombian.
Relevant to these claims, I have had regard to “Section 6. Discrimination, Societal Abuses, and Trafficking in Persons” located in the US Department of State’s recent 2018 Country Reports on Human Rights Practices: Chile (13 March 2019):
Equal treatment and nondiscrimination are explicitly protected in the constitution, and the labor code specifically prohibits discrimination. In its annual report, the INDH published survey results regarding racial discrimination, where 76 percent of those surveyed reported having witnessed discriminatory actions against immigrants, most of whom were from other Latin American countries or from the Caribbean, including Afro-descendants. There were reports of discrimination against racial minorities and immigrants in the public-health and education systems. The government implemented training programs for public officials on assisting immigrants and incorporated interpreters into offices, and provided information in languages other than Spanish, specifically Haitian Creole. The government implemented a plan for assistance to migrants in public services, Chile Receives You, with a special focus on improving access to public immigration services outside of the Santiago metropolitan region through increased infrastructure and staffing and training for public servants.

The impression here is that there are state protection standards and initiatives in place in Chile to deal with the needs and concerns of migrants including those from Latin American countries like Colombia.
I put to the applicants that I had not been able to find evidence of sustained or systemic discrimination against Colombian-born residents or citizens of Chile. What evidence I had been able to locate regarding anti-Colombian activities in Chile involved very isolated public protest against what appeared to be visaed or unregulated Colombian labourers in sporadic instances such as in Antofagasta in 2012 when around 150 Chilean citizens protested against there being too many Colombians in that city, in their collective opinion, “taking jobs and bringing drugs into the city.”[4] This instance had been cited by the delegate in the primary decision. I put to the applicants, on the basis of other independent country information, that it is not uncommon for Chileans to have some mixed ancestry and that, having a Chilean father, her children would likely be regarded by Chileans in Chile simply as Chileans.[5]
[4] “Chile – Country reports on Human Rights Practices 2013,” US Department of State, 27 February 2014
[5]
Responding to the independent country information that I put to her, [the first-named applicant] said there is still some racism in the Chilean population. She said that not all Colombian-born women or girls like herself or her daughter, to the extent that she is Colombian, experience this, but she had nevertheless seen a program on television showing Chilean citizens’ negative attitudes about Colombian women in Chile and their pejorative references to them.
I asked [the first-named applicant] and her husband if they had any other claims in their own behalf or on behalf of their children. [The first-named applicant] said that there had been an International Women’s Day march on the previous Sunday that ended in some violence and destruction of property. When I asked if she could give more detail and highlight the relevance of this, she said all peaceful marches end in violence. She then asked me to consider her claims and to have regard to her children’s human rights.
Findings in relation to s.36(2)(a), s.36(2)(aa) and s.36(3), etc., 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.
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 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.[8] 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.[9]
Colombia and s.36(2)(a): [the first-named applicant] and [the third-named applicant]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] 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.
I find that [the first-named applicant]’s claims relating to Colombia are vague, generalised and baldly speculative, notwithstanding the existence of armed groups operating in the country’s socio-political landscape.
Overall, I am not satisfied on the baldly speculative claims and vague and generalised evidence before me that [the first-named applicant] or her daughter [the third-named applicant] face a real chance of being persecuted in Colombia in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. They are not refugees in respect of Colombia. For these reasons, for the purposes of assessing their claims against Colombia, I am not satisfied that they are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Colombia and s.36(2)(aa): [the first-named applicant] and [the third-named applicant]
Having concluded that [the first-named applicant] and her daughter [the third-named applicant] do not meet the refugee criterion in s.36(2)(a), in respect of their claims against Colombia, I have considered the alternative criterion in s.36(2)(aa). However, on the evidence before me, their complementary protection claims in relation to Colombia are the same as their refugee claims and, as such, can no more succeed as complementary protection claims, given that s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm and given that 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).
In the circumstances, having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Colombia, there is a real risk that [the first-named applicant] or her daughter [the third-named applicant] will suffer significant harm. Accordingly, I am not satisfied, for the purposes of their claims against Colombia, that [the first-named applicant] or her daughter [the third-named applicant] are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
S.36(3),(4),(5) and (5A): [the first-named applicant] and Chile
In any event, I find that [the first-named applicant] has not taken all possible steps to avail herself of the protection of Chile, a country where, by right of her marriage to [the second-named applicant], she has a right to enter and reside under Chilean law. Accordingly, I find that she is caught by s.36(3) of the Act. Further to this, I have considered whether she is saved by s.36(4) of the Act. However, on the evidence before me, I am not satisfied that [the first-named applicant] faces a real chance of being persecuted in Chile in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act, including but not limited to “race”, “nationality” and “membership of a particular social group”. In addition, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Chile, there is a real risk that [the first-named applicant] will suffer significant harm. She is therefore not saved by s.36(4) of the Act. In addition, I find that she is not saved by ss.5 or 5A of the Act.
Chile and s.36(2)(a): [the third-named applicant]
Observing that [the third-named applicant] has two nationalities and that, by virtue of the Minister’s exercise of powers under s.91Q of the Act, she nevertheless has a valid protection visa application in this matter, I have considered the claims made on her behalf in regard to Chile.
On the evidence before me, however, I am not satisfied that she faces a real chance of being persecuted in the reasonably foreseeable future in Chile for any of the reasons cited in s.5J(1)(a), including but not limited to “race”, “nationality” and “membership of a particular social group”. Accordingly, for the purposes of assessing [the third-named applicant]’s claims against Chile, I am not satisfied that she is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Chile and s.36(2)(aa): [the third-named applicant]
Having concluded that [the third-named applicant] does not meet the refugee criterion in s.36(2)(a) in respect of Chile, I have considered the alternative criterion in s.36(2)(aa). However, her complementary protection claims in relation to Chile are the same as her refugee claims in respect of that country and, as such, can no more succeed as complementary protection claims, given that s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm and given that 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).
On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Chile, there is a real risk that [the first-named applicant] or her daughter [the third-named applicant] will suffer significant harm. Accordingly, for the purposes of assessing her complementary protection claims against Chile, I am not satisfied that [the third-named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
[The second-named applicant]
I exclude [the second-named applicant] from findings in relation to Colombia because he has made no claims in relation to that country and because he is a national of another country entirely, being Chile. In addition, he is a “Part D” dependent applicant whose success in this protection visa application depends on the outcome of the assessment of [the first-named applicant]’s claims on behalf of her family in relation to Colombia, and they have been unsuccessful.
Meanwhile, [the second-named applicant] has made no claims for his own part in relation to Chile. He has made it clear that, as he is a “Part D” dependent applicant, the fate of his claims in relation to Chile depends on the outcome of the protection visa applications of [the first-named applicant] and their children, in particular their daughter [the third-named applicant], and their claims against Chile have been unsuccessful. Accordingly, his claim to a protection visa in relation to claims against Chile cannot succeed.
[The fourth-named applicant]
The second child and [fourth named applicant] because, has two nationalities, and has not been the subject of favourable Ministerial discretion under s.91Q of the Act. Accordingly, he has not made a valid protection visa application.
Other findings
For the reasons given above the Tribunal is not satisfied that any of the three valid applicants in this case is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. 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
(a) The Tribunal affirms the decision not to grant the first three named applicants protection visas.
(b) The Tribunal sets aside the decision refusing to grant a protection visa to the fourth named applicant and substitutes a decision that his protection visa application is not valid and cannot be considered.
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.
…

[2020] AATA 711

12 March 2020

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Immigration

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