1706674 (Refugee)

1706674 (Refugee) [2022] AATA 1308 (23 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706674
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:23 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 March 2022 at 9:09am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – fear of harm from government-aligned individuals and group – father’s debts and disappearance and family’s relocation – harassment and threats to family from lenders – credibility – vague and unverified claims and evidence – no attempt to negotiate at least part-payment – no harm to mother and sister – applied after student visa cancelled and affirmed, period as unlawful non-citizen and immigration detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 351
Migration Regulations 1994 (Cth), 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 16 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 14 February 2017. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Bangladesh, on account of threats he has received from a ‘highly politically influential group’ and ‘extremists/terrorists’.
The applicant appeared before the Tribunal on 21 March 2022 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘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 applicant will suffer serious harm if he returns to Bangladesh for reason of his 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 him being removed from Australia to Bangladesh there is a real risk that he 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 information contained in his application for a protection visa, the applicant is a [Age]-year-old citizen of Bangladesh. He was born in Bogra, Bangladesh on [Date]. Before coming to Australia, he resided at Bogra, Bangladesh between [Year 1] and [Year 2], in Natore, Bangladesh between [Year 2] and [Year 3], and in Dhaka from [Year 3] to [Year 4]. He completed secondary and higher secondary schooling in Natore and then Dhaka. His father, mother and sister reside in Bangladesh. His uncle and [cousins] reside in Australia. The applicant was employed as [an Occupation 1] in Bangladesh from 2007 to 2009. He indicated he is a Christian (Catholic).
The applicant arrived in Australia [in] January 2010 as the holder of a [student] visa. The Department cancelled his [visa] on 13 May 2013 due to non-attendance at college. The applicant lodged an application for review at the Migration Review Tribunal in June 2013. In January 2014 the Tribunal affirmed the decision to cancel the visa. In February 2014 the applicant lodged an appeal with the Federal Court and the case was remitted to the Tribunal in April 2015. In September 2015 the Tribunal affirmed the decision to cancel the visa. In November the applicant lodged a request for Ministerial intervention under s351 of the Migration Act and the Minister did not intervene. The applicant’s Bridging Visa E ceased on 26 May 2016 and thereafter he remained unlawfully in the country until 5 February 2017 when he was detained. On 14 February 2017 the applicant lodged an onshore Protection visa application. On 16 March 2017 a delegate of the Minister refused the application.
The applicant made the following claims in his visa application form:
The applicant states that he left Bangladesh in 2010 with the intention of advancing his education and then returning to Bangladesh. The applicant stated that he has been aware of threats to his life during his time in Australia and that he has not returned to Bangladesh since arriving in Australia.
The applicant states that he fears he will be subject to ‘degradation, severe cruelty, brutal punishment and to a certain extent the deprivation of life’ from a highly politically influential group supported by the Government should he return.
The applicant also states that he fears harm from ‘extremists/terrorists’.
The applicant made several references to an attached statement but the Tribunal notes there is no evidence of any such statement on the Department’s file.
Protection visa interview
The applicant was invited on 7 March 2017 to attend an interview with the Department to discuss his visa application and claims. The applicant did not appear at the scheduled time on 14 March 2017.
Documents submitted to the Department
The applicant provided the Department copies of biodata pages for two passports as a part of his application.
Documents submitted to the Tribunal
The applicant provided no supporting documents to the Tribunal as a part of his review.
FINDINGS AND REASONS
Country of reference
Attached to the Departments file is a copy of the applicant’s People’s Republic of Bangladesh passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Bangladesh.
Fear of harm for reason of his father’s unpaid debts
The Tribunal notes that the applicant’s written claims lack substance but during the hearing held on 21 March 2022 he advanced further details of his claims in his oral evidence. He stated that after his departure from Bangladesh his father borrowed a substantial sum of money from locally influential persons affiliated with the Awami League (AL) to further his investment in a [farm]. He claims that following an outbreak of [disease] in 2012 the price of [product] dropped and his father lost a lot of money and was unable to repay his debts. He claims his father disappeared at that point in time and to this date he has not maintained any contact with the family. The applicant stated that his mother and sister relocated in around 2012 to Dinashpur, some 400 miles from his family’s place of residence in Natore, to evade the attention of the persons who lent his father the money. The applicant claims that the lenders regularly visit his family home in Natore, where his grandmother and uncle continue living, and the rented home of his mother and sister in Dinashpur and make threats aimed at pressuring the applicant to repay the unpaid debts. The applicant claims that if he returns to Bangladesh he will be seriously harmed by those lenders as he will be unable to repay the debts.
The key aspects of the applicant’s oral evidence and responses to issues raised with him by the Tribunal during the course of the hearing are summarised in the following reasoning.
Having considered all the available evidence the Tribunal has concerns about the veracity of the applicant’s claims in respect of the problems he and his family have or will encounter as a result of his father’s unpaid debts in Bangladesh. These concerns are further explained below.
To begin with, the Tribunal considers the applicant has provided scant and unconvincing information about the debts incurred by his father and his claims are unable to be verified by any independent information. During the hearing the applicant’s oral evidence as to the manner in which his father was able to secure a large loan of 6 million dollars in local currency or why his father did not logically attempt to secure a formal bank loan was vague and lacking in detail. He merely speculated that the size of his father’s property was insufficient for the purpose of providing a guarantee to the bank. That said, he offered no plausible explanation as to why a private lender would provide such a large unsecured loan to a person in his father’s position. Also, the applicant claims the lenders are influential and dangerous local personalities affiliated with the AL in the local area but he could not identify by name any of the persons involved. This is despite claiming that the persons who are allegedly harassing his family, frequently present themselves at the homes of his family members in Natore and Dinashpur. As the lenders are claimed to be influential persons from the local area and in frequent contact with the applicant’s family members over an extended period of time, the Tribunal considers it likely he and his family would be aware of the identities of the persons involved. That he does not know the identity of any of the persons involved, contributes to the Tribunal’s doubts about these claimed lenders.
The Tribunal also finds it difficult to accept that the lenders have continually pursed the family for repayment of the debts incurred by the applicant’s father for ten years as is claimed. During the hearing the applicant claimed that his family members in Natore and Dinashpur, were harassed about the repayments, even as recently as two months ago. The applicant gave an unconvincing account of how the lenders were able to locate his mother and sister some 400 miles away and as discussed with the applicant the Tribunal considers it unlikely the lenders would repeatedly make such a journey over a period of ten years when it is evident that he, whom he claims is the main target of the lenders, is not living with them and has not been living with them for years now. The applicant responded that the reason for these visits is not to extract money from his family as they are aware they are not in a position to pay them, but to let the family know that they expect him to repay the money when he returns to Bangladesh. The applicant claims the lenders assume he has a lot of money as a result of him living abroad for several years. The Tribunal has considered the applicant’s responses but remains unconvinced that the lenders would fruitlessly maintain such vigilance over a period of ten years.
In addition, according to the applicant his mother is working as [an Occupation 2], is financially supporting his sister’s studies and managing to pay rent and daily expenses while living in Dinashpur. While the Tribunal accepts his mother might not be in a position to make substantial repayments against the debt, the absence of any expectation on them to make even small contributions against the outstanding balance is surprising. Similarly, the Tribunal notes and finds it significant that the applicant’s mother and sister have not experienced any harm other than the claimed verbal threats from the lenders over a ten-year period. When this was discussed with the applicant during the hearing he said that the reason his mother and sister have not been harmed is because he is in Australia. He said it is his belief that should he return to Bangladesh the lenders will then attempt to harm or detain his mother in a bid to get him to pay back the money which is owed. The Tribunal notes the applicant’s response but as discussed with him during the hearing it considers it more likely that if the lenders are so intent on recovering their money, and believe he is in a financial position to pay it back from Australia, they would already have the increased the threats to his mother and sister or even inflicted more serious harm on them. In the circumstances, the Tribunal finds it implausible that the lenders are able to be appeased simply by the applicant’s mother telling them they do not have any money as is claimed.
Furthermore, given the claimed continuing and frequent harassment experienced by the applicant’s family members he was asked whether any attempts have been made by his family members to obtain protection from the police in Bangladesh. The applicant stated that the lenders are affiliated with the AL, that his family members are Bangladesh Nationalist Party (BNP) supporters and members of the Christian minority group, and therefore can not expect any help from the authorities. Despite those circumstances, as discussed with the applicant during the hearing, the Tribunal nevertheless finds it surprising that his family members would not at least attempt to lodge a complaint with the police about the threatening behaviour of the lenders.
During the hearing the applicant also advised that upon his grandfather’s death all his land titles were transferred to his name. He said that if he returns to Bangladesh the lenders will make him sell those lands to repay his father’s debts. Noting the harassment his family have been enduring and his claimed fears for his own safety in Bangladesh the Tribunal asked why he has not sold the land already to avoid being harmed by the lenders. He responded that he would need to be present in Bangladesh to do so and in any event he does not believe that the sale of the land would cover all the debt. Given the seriousness of the problems the applicant claims his family are currently experiencing and that he will likely experience in the future the Tribunal finds the applicant’s lack of initiative in seeking ways to repay any of the claimed debts to also be problematic. As discussed with him during the hearing the Tribunal considers he could engage a lawyer and/or provide his mother with a power of attorney to further the sale of the lands in his absence if he was motivated to find even a part solution, to his family’s claimed problems.
The Tribunal is also concerned about the timing of the applicant’s application for a Protection visa. During the hearing the Tribunal discussed with the applicant his abovementioned migration history and the fact that he did not seek protection from the Australian government until such time as he was taken into immigration detention many years after his problems first arose and after repeated failed attempts to resolve his migration status through other channels. In response the applicant stated that due to the problems his family was facing in Bangladesh he felt very lost at the time and was unable to continue with his studies due to these circumstances. He conceded that he knew there was an option to apply for a Protection visa but he did not do so as he wasn’t himself and didn’t know what to do.
The Tribunal has considered his responses but is not persuaded the applicant has provided a satisfactory reason for the delay in lodging the application for a Protection visa. There is no medical evidence before the Tribunal to support the applicant was experiencing psychological problems and the Tribunal notes the applicant’s evidence that he has an uncle in Australia from whom he draws support. The Tribunal is not persuaded based on his vague account of his mental state that he lacked the ability or support to lodge an application for a Protection visa far sooner than he did. The Tribunal notes the applicant claims he did not tell his uncle that he had become unlawful in Australia but remains unconvinced that this accounts for his decision to delay the application for a Protection visa. The Tribunal remains unpersuaded about the reasons given for the long delay in him applying for protection and considers this casts significant doubt on the credibility of his claims to fear serious or significant harm in Bangladesh. The Tribunal is of the view the applicant lodged an application for a Protection visa following his failure to secure a migration outcome through various other channels and after being placed in immigration detention. The Tribunal does not accept the applicant’s bid for a Protection visa was genuinely made for the reasons claimed.
The Tribunal notes that during the hearing the applicant claimed that his father also incurred debts with local credit unions but he stated that he does not fear any harm in Bangladesh in association with those loans.
For all the above reasons the Tribunal does not find the applicant’s claims in connection with his father’s unpaid debts to be credible. The Tribunal does not accept that his father was or is indebted to influential local people with links to the AL; that his family members have been harassed in connection with these debts; that his father disappeared for this reason or that his mother and sister relocated to Dinashpur for this reason. The Tribunal also does not accept that there is a real chance or a real risk that the applicant or any of his family will be harassed, threatened or suffer any other serious or significant harm at the hands of anybody in connection with those debts if he returns to Bangladesh.
Support for the BNP

Noting the applicant’s reference during the hearing to his family’s political allegiances the applicant was asked about his family’s support for the BNP. He said that his family support the BNP and have previously attended BNP rallies held for election purposes and for reason of various other campaigns. He said his family were well known BNP supporters in the local area. That said, the applicant confirmed to the Tribunal that his family members were not BNP members and nor did they hold any positions within the BNP. He confirmed that his family have never previously experienced any difficulties in Bangladesh on account of their support for the BNP. The applicant further stated that while he lived in Dhaka he had some “insignificant” involvement with a BNP student group. He stated that he has not pursued any involvement with the BNP in Australia.
For the reasons outlined above the Tribunal is of the view that the applicant has demonstrated a willingness to provide fabricated evidence in order to obtain a migration outcome. This behaviour causes the Tribunal to also reject the claims made in respect of his and his family’s activities in support of the BNP. In any event, the available evidence supports that the family’s support for the BNP is at best low key as evidenced by the absence of any harm to family members in the past. Even if the applicant’s claims in respect of his and his family’s political involvement are to be believed, which they are not, the Tribunal considers, based on past experience, that there is not a real chance or a real risk the applicant will suffer serious or significant harm on return to Bangladesh for reason of his or his family’s support of the BNP.
Catholic religion
During the hearing the applicant confirmed that he is a Catholic and the Tribunal accepts he is. According to the applicant he observes his faith through prayer and occasional church attendance. He said that he did not encounter any problems in Bangladesh in the past when observing his faith. When asked if he fears harm on return to Bangladesh as a Catholic he said that he does not but that being a member of a religious minority compounds the claimed problems he has with the above-mentioned lenders in that he cannot expect any community or police support to resolve his problems. As noted the Tribunal does not accept the applicant’s father has incurred the claimed debts or that his family members or he are or will be pursued and harmed by the lenders. Therefore the Tribunal does not accept those problems are compounded by the fact he is a Catholic.
For completeness the Tribunal discussed with the applicant DFAT’s[1] assessment of the situation for Christians in Bangladesh. The Tribunal pointed out to the applicant that DFAT’s report indicates that the constitution commits the state to ensuring equal status and equal rights for all religions and that there are no legal or other restraints preventing Christians from freely practicing their faith. The Tribunal acknowledged that there are reportedly occasional threats against Christian individuals and institutions and small-scale, sporadic attacks from Islamist militants but that the police have provided protection to Christians against such behaviour. The Tribunal put it to the applicant that this information does not indicate that there is a real chance or a real risk that he will suffer any serious or significant harm in Bangladesh for reason of his religion. The applicant responded that for reasons purely to do with his religion he agrees he will not be at risk of any harm on return to Bangladesh. The Tribunal concludes that there is not a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Bangladesh for reason of him being a Catholic.
[1] DFAT Country Information Report, Bangladesh, 22 August 2019
Other claims
Before the hearing concluded the applicant was asked whether he fears any other harm in Bangladesh other than for the reasons outlined above. He responded that he does not and referred only to the problems he has outlined in respect of the persons whom his father owes money to. At no point in the hearing did the applicant state that he fears harm from extremists or terrorists as is claimed in his written evidence. The Tribunal is of the view the applicant failed to advance this claim and in any event, based on his oral evidence and given the credibility concerns outlined herein, the Tribunal is not inclined to believe he genuinely fears any harm from extremists or terrorists, either in connection with his father’s claimed debts, his religion, his political opinions or for any other reason.
CONCLUDING PARAGRAPHS
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). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm. Therefore, 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
The Tribunal affirms the decision not to grant the applicant 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.
…

[2022] AATA 1308

23 March 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies