1706282 (Refugee)

1706282 (Refugee) [2021] AATA 4886 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1706282

COUNTRY OF REFERENCE: Tonga
MEMBER:Tania Flood
DATE:12 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 November 2021 at 19:51pm
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – Tongan Democratic Party supporter – no family support in Tonga – fear of killing – political violence – corruption – state protection – health care – delay in apply for protection – recommendation for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 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 Immigration and Border Protection on 14 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Tonga, applied for the visas on 8 February 2016. The delegate did not find the first named applicant’s claim that he may be harmed for previously supporting the Tongan Democratic Party to be credible. The visa was refused as the delegate was not satisfied that the applicants have a well-founded fear of persecution for any reason under s. 5J(1)(a) of the Act. In addition, the delegate was not satisfied that there is a real risk that the applicant will suffer significant harm on return to Tonga.
The applicants were invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by MS Teams video link. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants agreed to appear before the Tribunal by video link on 21 July 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages. The applicants [specified family members] were also in attendance. There was no indication that the applicants had any difficulty in understanding and responding to the questions being put to them during the video hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘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 issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Tonga for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being returned to Tonga from Australia there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to the information provided in their applications for protection visas, the applicants are citizens of Tonga. The first named applicant (the applicant) is [age] years old. He was born in [a named village] in the [named] district in Tonga. He resided at a single address in [address], in Tonga, before coming to Australia. He completed primary school and [level] of high school in Tonga. He was unemployed at all times, before coming to Australia. The applicant has [specified siblings] who live in Tonga, and [another] who lives in [Country 1]. His [specified family members] reside in Australia
The second named applicant is the wife of the first named applicant, [aged]. She has [specified family members] in Australia. She is relying on her membership of the same family unit as the first named applicant and has not made her own separate claims for protection.
The first named applicant arrived in Australia [in] April 2011 on a [Tourist visa]. The second named applicant visited Australia on [number] previous occasions between 1996 and 2008. She last arrived in Australia [in] February 2011 on a [Tourist visa] and was granted a further Tourist visa on 29 April 2011. The applicants lodged the application for a protection visa on 8 February 2016. On 14 March 2017 a delegate of the Minister refused their protection visa application.
The applicant made the following claims on his protection application forms:
He came to Australia to visit his wife and children and realised that Australia ‘has more freedom in comparison to Tonga at the time’.
The applicant also had in mind when he left that he ‘may be affected by being a supporter of the democratic movement’ in Tonga.
If there is any opportunity of staying in Australia, then the applicant states that he ‘will take it’.
At the time of application, the leader of the political movement that the applicant supported was the ‘Premier of Tonga’; the leader’s name was Akilisi Pohiva. The applicant claims that the things that they believed in the leader and in the movement were a lie, and that they will not get any better in life under his leadership.
He claims that people who supported Pohiva have now threatened to shoot him, and he believes that this means there ‘may be chaos looming’ and he is concerned very much, that in his case, he may be killed.
He claims that he was ‘really nervous’ and ‘affected’ by the whole experience that he had in 2006 when the political movement burned the capital.
He was in the city at the time when ‘fire, looting, violence and fighting’ was going on. He does not want to see anything like that again.
He did not know that his experience was a ‘sickness or a harm as it affect you’. But it affected his ‘feeling and mind when talking about it’.
He did not try to move to another part of the country because at the time he felt there was no need for it. However, the present condition is different, and he is ‘very worried about it’.
He claims that the possibility that he will be harmed if he returns to Tonga is greater now than it was before he came to Australia. This is because ‘corruption is even more now than before’ and ‘the police department are not reliable to help if you need one’.
He claims that he is unable to relocate within Tonga because it is a small country and you cannot hide by just relocating.
Documents Submitted to the Department
The applicants submitted the following documents with their visa applications:
·A printed article from the New Zealand Kaniva Pacific from February 2016 relating to a shooting threat made against the then-Prime Minister Phiva.
·A certificate of Australian citizenship issued to the applicants’ daughter.
·The applicants’ birth certificates.
·The applicants’ marriage certificate.
·Copies of the applicants’ passports.
Protection Visa Interview
The primary applicant attended an interview with the Department on 27 February 2017. The interview was conducted with the assistance of an interpreter in the Tongan and English languages. The applicant’s daughter was also present.
The primary applicant informed the Department that he was not an active member of a political party in Tonga and didn’t go to demonstrations or attend party meetings. He said he has not supported any political party since the 2006 riot and no longer has an affiliation with any political party. He said he fears there will be no-one to care for him if he falls sick in Tonga.
Submissions to the Department
The applicant did not make submissions to the Department in support of his application.
Submissions to the Tribunal
The applicant did not make submissions to the Tribunal in support of his application.
Tribunal hearing
The applicant’s appeared before the Tribunal to give evidence in support of their case. The Tribunal used the opportunity of the hearing to discuss with the applicants their background in Tonga, their reasons for departing Tonga and their claimed fears of returning to Tonga. Their testimony, and the testimony of witnesses, is summarised below:
The applicants are husband and wife and both are citizens of Tonga. The applicant wife is relying on the claims of her husband and is included as a member of his family unit.
The applicants resided on Tonga Tapu in their own home. The house remains standing and is occupied by a friend. Beside their home they have a small parcel of farmland.
The first named applicant has [specified siblings] remaining in Tonga. All the second named applicant’s family are living in Australia.
The applicants have [specified children] who live in Australia. They have numerous Australian born grandchildren.
The applicants stated that they came to Australia in 2011 on Tourist visas for the purpose of visiting their children.
The first named applicant stated the events he witnessed in Tonga before he departed continue to affect him psychologically. When questioned further he said he was referring to the riots which occurred in 2006. He said he was not personally involved or impacted but he was scared by what he saw.
Between 2006 and 2011 he did not experience any problems in Tonga although he continued to be affected by what he witnessed during the 2006 riots.
The Tribunal discussed with the applicant the fact that he came to Australia in 2011 some five years after the riots. The Tribunal put it to him that this could suggest he was not so terribly affected by the situation. He responded that his [children had] come to Australia and got married here and there was nobody left to help him and his wife in Tonga. He said this is why they came to Australia.
The first named applicant said that he was a supporter of the Democratic party led by Pohiva. When asked if he still supports that party he said he no longer supports any political party.
The first named applicant was asked whether he fears something might happen to him if he returns to Tonga because of his prior support for the Democratic party. He responded that Tonga is no longer the same and now they are old and will have no children to support them. The applicant was asked to explain how Tonga is different now but he merely said it is different to what it used to be.
The first named applicant confirmed he suffered no prior harm, including threats of any kind, in Tonga for reason of his political opinion and support for the Democratic party. He added that after the riots his attitude toward the party changed.
The Tribunal put it to the applicant that country information indicates the political environment in Tonga is relatively stable and that there have been no further riots since 2006. He responded that he doesn’t really know what is happening in Tonga at the moment and again said the country is not the same.
The Tribunal stated that his evidence to the delegate suggests he is also concerned he and his wife will have nobody to care for them in the event they fall sick in Tonga. The Tribunal referred to country information which indicates that Tonga has one of the better health systems in the Pacific with widely available and affordable health care. He responded that due to their age they will not be able to grow crops anymore.
When asked how he and his wife are supporting themselves in Australia he said that they live with their [family members who] are supporting them financially. The Tribunal suggested that it is likely their children would provide a similar level of support should they be required to return to Tonga. The applicant agreed that the children would continue to support them but said it would not be the same experience as living together with them. He confirmed that his children are all currently working.
The applicant’s son testified that he worked as [an occupation 1] in Tonga and was able to support his parents financially. He said since coming to Australia he and his brother have both married and have children of their own. He said he has [number of children]; his brother has [number] children and his sister has [number] children. He said he and his brother used to send money home to their parents but as their own responsibilities increased that became more of a problem. He said that if his parents remain in Australia it will be far easier for them to support them financially and health wise. He said his parents also provide invaluable support caring for the grandchildren while they are at work.
Post-hearing submissions
After the hearing the applicants’ children provided documentary evidence showing the residency status of numerous family members. The evidence indicates that the applicants [specified children] are Australian Permanent Residents and that their daughter and numerous grandchildren are Australian citizens.
FINDINGS AND REASONS
Country of reference
Attached to the Departments file are copies of the applicants’ Tongan passports which verify their claimed identities and nationalities. Based on this, and in the absence of any information to the contrary, the Tribunal is satisfied the applicants are nationals of Tonga.
Fear of harm for reason of political opinion
On the one hand applicant one claimed in his application for a Protection visa that he formerly supported the Democratic Party of the Friendly Islands and that people who supported the then leader of the party, Akilisi Pohiva, threatened to shoot him. On the other hand, the applicant’s oral testimony to the Tribunal is that he was not a politically active person and never suffered any serious harm in Tonga on account of his political opinion although he maintained he was upset by the events which occurred in his country during the 2006 political riots.
As can be seen from the background information outlined above, applicant one is [an age]-year- old man. When he appeared before the Tribunal he conversed in Tongan, was softly spoken and while his evidence was lacking in detail the Tribunal formed the view that he was delivering an honest and open account of his experiences in Tonga and his reasons for wanting to remain in Australia.
Based on his oral evidence the Tribunal is satisfied that applicant one formerly supported the Democratic Party of the Friendly Islands but was never actively involved in political affairs and was never harmed or threatened in any way on account of his political opinions despite what is claimed in the application for protection. Based on his oral testimony, the Tribunal accepts the applicant no longer supports any political groupings in Tonga.
While the Tribunal accepts applicant one found the political events of 2006 disturbing it is not satisfied that he suffered any serious psychological harm in Tonga for this reason. As discussed with him during the hearing he remained in Tonga for five years after those events took place and his only clearly articulated reason for coming to Australia was to be with his children. In addition, he waited a further five years to apply for a Protection visa in Australia.
If the applicant returns to Tonga the Tribunal is satisfied that he will not express support for any political party and will not become involved in any political affairs. Based on his testimony the Tribunal is satisfied that this will be due to disinterest rather than out of fear for his safety. As the applicant suffered no harm in Tonga at a time when he did express support for the Democratic Party of the Friendly Islands and as the Tribunal is satisfied he will not be involved in any political activities in the future, the Tribunal finds there is not a real chance or a real risk he will suffer serious or significant harm if he returns to Tonga for reason of his political opinion. In light of the above findings the Tribunal is also not persuaded that there is a real risk or a real chance that applicant one will suffer any psychological harm on account of his past memories of the riots which occurred in 2006 should he be required to return to Tonga.
Fear the applicants will suffer harm in Tonga if they fall sick and are without caregivers
Applicant one has expressed a fear that if he and his wife return to Tonga and fall sick they will have nobody to care for them. During the hearing the Tribunal discussed with the applicants’ country information which indicates that Tonga has one of the better health systems in the Pacific with widely available and affordable health care. For instance, in its 2020 Crime & Safety Report for Tonga, published on 10 June 2020, the US Department of State’s Overseas Security Advisory Council (OSAC) stated that Vaiola Hospital in Nuku’alofa is the main hospital in Tonga. The islands of Vava’u, Ha’apai and ‘Eua also have hospitals. The hospital in Eua offers very limited medical services compared to those of Vava’u and Ha’apai. Compared to other small island nations, Tonga has generally high levels of access to healthcare due to significant support from Australia and New Zealand. The hospital in Nuku’alofa offers most general medical services such as pharmacy, dental, surgical, obstetric, and gynecologic services. Public hospitals provide approximately 89% of healthcare services in Tonga, with 6% made up by health centres. Approximately 5% of health services in Tonga are private, and more rudimentary than public services.[1] In a February 2021 travel advisory, the US Department of State notes that Vaiola Hospital, a private “referral” hospital in Tonga’s capital, Nuku’alofa, has a 24/7 emergency department, and medical and surgical capabilities to respond to emergencies of differing levels, and is able to stabilize patients if needed to medevac overseas. All essential drugs are available according to the essential drug list, and if specific drugs are not available, there may be other alternatives of the same brand available from six nearby private pharmacies. Medical services offered from Tonga Government/public hospitals are free of charge for all Tongans/naturalized Tongans.[2] When it was put to the applicants that it does not appear they will be without access to medical care in Tonga applicant one merely said that he and his wife are too old to grow crops.
[1] Tonga 2020, Crime and Safety Report, Overseas Security Advisory Council (OSAC), 10 June 2020
[2] Tonga International Travel Information, US Department of State, 1 February 2021

The Tribunal accepts, based on their oral evidence, that the couple are no longer of working age have only one immediate family member ([specified]) remaining in Tonga. However, based on their oral testimony, they have a house to return to and children in Australia who have and are willing to continue to support them financially and emotionally should they be required to return to Tonga and cannot work or farm. While it is accepted the applicants will not have access to the day to day care and support of their children, as they currently enjoy in Australia, the Tribunal is satisfied, based on the information outlined above, that they will be able to access adequate health care in Tonga in the event it is needed and that their children will provide them with sufficient support to meet their basic needs. The Tribunal is not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm on return to Tonga on account of them having no-one to care for them in the event they fall sick or because they can no longer farm.
Noting their advanced ages and their personal circumstances, the Tribunal sympathises with the situation the applicants’ find themselves in. However, having carefully considered the claims, both individually and cumulatively and for the reasons given above, the Tribunal is not satisfied that any of the applicants 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) of the Act and cannot be granted the visa.
RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION
The Tribunal notes that under the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. Relevantly, the Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances.
Notwithstanding the above findings of the Tribunal, the applicants are elderly and have very few remaining close personal connections in Tonga. They have lived closely with, and have enjoyed a deep personal connection with, their [children] in Australia for ten years. Having regard to the Ministers guidelines for referring matters the Tribunal considers the present case involves ‘unique and exceptional’ circumstances on compassionate grounds given the applicants ages and psychological support systems, which if not recognised could result in them suffering irreparable harm and hardship. Furthermore, the applicants’ children have all married and are respectively raising [young] children of their own in Australia while simultaneously working. The evidence supports that the applicants are providing invaluable care and support to their children and their grandchildren. The Tribunal considers these family members would also be adversely affected by separation from their parents and grandparents were the applicants to be required to depart Australia. Further, the Tribunal accepts the evidence of the applicants son that while they would continue to provide financial support to their parents if they are required to return to Tonga this would place additional financial strain on the family as it is far more manageable for them to support their elderly and dependent parents while they are living under the same roof as them in Australia. In the Tribunal’s opinion there are strong compassionate circumstances in this case such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicants leave the country.
For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of the applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
Tania Flood
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.
…

[2021] AATA 4886

12 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal