1708543 (Refugee)

1708543 (Refugee) [2021] AATA 158 (28 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708543
COUNTRY OF REFERENCE:                   Mauritius
MEMBER:Damian Creedon
DATE:28 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 January 2021 at 7:18am
CATCHWORDS
REFUGEE – protection visa – Mauritius – fear of harm from in-laws and as converts from Hinduism to Christianity – bullying, interfering and controlling behaviour and social judgement – credible evidence – possible illegality or sharp practice by potential sponsor/employer in Australia – children’s settled life and education – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65
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 7 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The first-named applicant (applicant) is a [Age]-year-old woman from Mauritius. She arrived in Australia [in] January 2009 holding a [Student] which was granted on 29 September 2008. The secondary applicants, her husband and their two children, arrived onshore [in] November 2009. The applicants were granted a second [Student] visa on 6 May 2014. This second Student visa ceased on 15 March 2015. The applicant lodged an application for a Protection Visa on 1 October 2015.
Protection visa application
Evidence before the delegate
In her protection visa application, the applicant made the following written claims:
a.She seeks protection in Australia so that she does not have to return to Mauritius. She states that she left her country to pursue her studies in Australia and because of her search for ‘freedom of living a more decent life’. She states:
I wanted at any cost to have my freedom of choice and living not only for me but for my whole family (husband and kids). As there was always [a] lack of freedom and security over there.
b.The applicant states her concern that she will ‘suffer’ if she has to return to Mauritius because her family have used all of their savings and she will not be able to cope with her ‘old life’. She states that her children’s future will be ‘in danger’.
c.When asked on the application form to detail the type of harm she experienced the applicant stated:
…I never had freedom of choice and living. It is always the pressure of parents and in-laws who decide for us.
d.She stated that she did not seek help in Mauritius because the type of harm she suffered, namely controlling parents and people ‘mingling’ in one’s business, is common there.
e.She states that she fears being mistreated by friends and family for her (and her immediate family’s) financial hardship and that she will be unable to bear more of the type of behaviour she had experienced in Mauritius. She states that her children will suffer at school and that they will not adapt to life in Mauritius.
The applicant also provided a written statement dated 23 August 2015 in support of her visa application, in which she makes the following claims:
a.She states that she and her family will be ‘more damaged’ if they have to return to Mauritius.
b.She states that ‘recently’ the family have suffered emotionally and financially‘ due to the situation [they] have gone through with ‘the employer in [City]’; she states (as written):
We are now run out of all our savings we had and it will be harder to start afresh again back in Mauritius.
c.She states that she is ‘very fearful’ for her family’s future, in particular on account of the difficulty for the children in reassimilating to life in Mauritius. She states (as written):
I have also the fear of family gossiping and persecution about our financial hardship that can endanger our lives more. Since we have converted from Hindus to Christians I have the fear too of being persecuted for our religious background we are now following.
d.The applicant states that the political system in Mauritius is ‘very bad’ and that she would prefer her family to remain in Australia where they can have freedom of choice and ‘living’.
In support of her application the applicant provided a written reference dated ‘August 2015’ from Rev Dr [A], Chairman of ‘[Church]’. It is appropriate to reproduce the material aspects of [Reverend A]’s reference in full (as written):
To Whom It May Concern:
This is a note to highlight the plight of [the applicant] and her family.
[The applicant], her husband and two children have been part of the congregation of [Church] for the last six years. They have been responsible members serving voluntarily in the Children's Church and the Audio Video section of the church. The level of service and attitude towards work has been exemplary. All throughout their years as a student, she had managed to upkeep the family matters well. They are well liked and regarded by the rest of the members at our congregation.
In 2014, after her studies we were told that [the applicant] was offered assistance with her visa application with a job and traineeship in [City]. She and her husband made a very difficult decision to leave their two children and pursue this offer. The commitment by both of them to work and fulfil the requirements of the visa was admirable. They placed all they had financially to go to [City] for the offer.
Whilst they were away the children needed extra care as they have never been apart from both parents. The church member's and families looked after them.
When the sponsor backed out of the agreement, they had to come back to Perth. They had exhausted all their finances. They had nowhere to stay and no means, financially and without a job were not able to support themselves. The Church had to and still is housing them in the church office and has been providing for all of them.
The trauma caused by the employer in not fulfilling their obligations has placed them in a difficult situation financially and emotionally.
As they had placed all their hopes and resources on the opportunity in [City], the family had to be looked after by the church. Accommodation and transportation needs for the family, Clothing, food and basic amenities had to be provided for.
Since their return they have been diligently looking for work to support themselves and their two teenage children. Unfortunately they have not made any headway as yet.
The interview
The applicant was interviewed by a delegate of the Minister on 30 March 2017. Where relevant, the applicant’s oral evidence to the delegate is referred to in the Tribunal's reasons below.
The delegate’s decision
The delegate decided to refuse to grant the visa on 26 June 2017. The delegate found that the applicant did not have a well-founded fear of persecution in Mauritius. They also found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Mauritius, there is a real risk the applicant will suffer significant harm.
Review application
Prehearing submissions
The applicant provided a written statement to the Tribunal dated 11 January 2021 (written statement). Where relevant, the written statement is referred to in the Tribunal’s reasons below.
The hearing
The applicant was represented in relation to the review by her registered migration agent. The applicant appeared before the Tribunal on 25 January 2021 to give evidence and present arguments. The applicant’s representative attended the hearing by telephone.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, findings and reasons
Evidence
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
At the hearing, the applicant stated that she and her husband were of Indian ethnicity and were each born into the Hindu faith. She stated that they were married when she was ‘very young’ at [age] years of age. The couple were married according to Hindu rites.
The applicant stated that according to Hindu custom she moved in with her in-laws. She claimed that she found her in-laws to be interfering and controlling and she states that she felt bullied and put under ‘lots of pressure’. When pressed by the Tribunal the applicant stated by way of example that, during her first pregnancy, her susceptibility to morning sickness was interpreted by her in-laws as ‘laziness’ or an unwillingness to perform the duties expected of a daughter-in-law in a Hindu household.
The applicant stated that this behaviour continued for a number of years and intensified after the applicant and her husband converted to Christianity. The applicant’s evidence is that she and her husband were baptised into the Christian faith in 2003. After her conversion, the applicant stated that the bullying behaviour of her in-laws changed to include religious-based taunts. In her written statement the applicant states:
I may not have been physically beaten or tortured [in] those days, but those incidents have always leave [sic] traces of traumas and depression in me.
The applicant stated that she first considered travelling to Australia to study after seeing ‘international student advertising’ in Mauritius. The applicant stated that she had also applied to study in [Country] but had been unsuccessful. She stated that she successfully applied to study a package of courses in Australia comprising a diploma and advanced diploma at [College] in Perth, followed by a bachelor’s degree in [Subject] at [University]. The applicant stated that she and her husband had taken out a [student loan] in Mauritius in order to finance her studies.
When pressed by the Tribunal the applicant stated that she did not initially intend to follow a migration pathway to residency in Australia, but that she became alive to the possibility of living permanently in Australia after arriving onshore. She stated that her initial motivation to come to Australia was to escape her domestic life in Mauritius and to improve her educational qualifications and thereby her employment prospects there or in a third country. She stated that her previous highest level of qualification was year [grade] in Mauritius.
The applicant’s evidence is that she successfully completed her diploma and advanced diploma and obtained entrance to [University], however it appears that she struggled with bachelor’s level study. The applicant successfully applied to underload her studies in the 2013 academic year, however her attempts to lessen her study load proved unsuccessful and [in] August 2015 university management suggested ‘support options’. In her evidentiary materials the applicant ascribes her lack of success, in part, to be on account of ‘a kind of continuous depression’ from the trauma associated with her life in Mauritius.
The applicant stated that she answered a job advertisement ‘at the beginning of 2015’ for the position of [Job position] at a business in [City]. She stated that she met with the owner and was offered the position together with sponsorship for a subclass 402 visa. The applicant stated in evidence that she and her husband used their savings to travel to [City] to pursue the opportunity there, but that ultimately the employer failed to carry through with their promises and, despite having attempted to obtain recourse through legal channels, the couple were left in financially straitened circumstances and returned to Perth. The applicant states that between 2015 and 2017 the couple did not have work rights in Australia and the family relied upon support from their Church community to survive.
When pressed as to her fears in returning to Mauritius, the applicant stated in evidence that she made her application for a protection visa out of fear of having to return there and to live with and be dependent upon her in-laws. When pressed the applicant stated to the effect that she feared domestic bullying from her in-laws and social judgement from her community. The applicant claimed she would be bullied for her religion by her in-laws and some in her community.
The applicant also stated her fear that her village [in] Mauritius has a ‘very bad reputation’ for drugs. She fears that it has become a violent and unsafe place for her family. The applicant stated that her brother-in-law was known to have been a drug-addict; he lived with her in-laws and she feared his influence on her children. The applicant was unable to provide other than general fears in this regard.
When pressed, the applicant confirmed that she and her family hold current Mauritian passports. When further pressed the applicant stated that she did not believe there would be any reason for her or her family to have any difficulty entering or leaving Mauritius.
Country Information
The Tribunal has read and had regard to the United States’ Department of State ‘2018 Report on International Religious Freedom: Mauritius’ (2018 Report).[1]
[1] (accessed: 27 January 2021).
The 2018 Report notes that the constitution of Mauritius prohibits discrimination based on creed and provides for the right of individuals to change, manifest, and propagate their religious beliefs freely. It further notes that Mauritius is a party to the International Covenant on Civil and Political Rights.
Although the 2018 Report described religious tension in Mauritius between Hindus and Muslims in earlier reporting years, no clashes between the two groups were noted in the 2018 reporting period.
Notably, in commenting upon the ‘Status of Societal Respect for Religious Freedom’, the 2018 Report states:
The Council of Religions, a local organization composed of representatives from 18 religious groups, hosted regular interfaith religious ceremonies and celebrations to foster mutual understanding and enhance interfaith collaboration among faith communities. These included interfaith ceremonies in local private companies and the celebration of International World Peace Day. The council continued the distribution of booklets entitled “Peace and Interfaith Dialogue” to local schools and institutions.
Analysis
The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported her oral statements and written claims with documentary evidence. The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving her evidence she did not convey an impression of concoction or recent invention. The Tribunal notes that the applicant’s evidence at the hearing was consistent with the claims in her protection visa application and with her interview with the delegate.
Having regard to the evidence before it, the Tribunal finds that the applicant resolved to travel to Australia in January 2009 to further her education and improve her employment prospects in her home country or a third country. The applicant’s motivation to do so appears to have been her perception of mistreatment by her in-laws. The Tribunal accepts that the applicant, following Hindu custom, moved in and lived with her in-laws following her marriage. It appears from the applicant’s account of this situation that she found her in-laws to be interfering and controlling and the Tribunal accepts that she felt bullied and put under ‘lots of pressure’. The Tribunal also accepts that the applicant’s conversion to Christianity introduced a sectarian element to her in-laws’ behaviour towards her, further exacerbating her situation. She did not suggest that she had been the victim of physical violence. Much of the applicant’s oral evidence to the Tribunal was centred around her feelings of emotional mistreatment as a member of her in-laws’ household in Mauritius and her fear of returning to that situation, a fear heightened by her family’s failure to progress in Australia as they may have wished.
Despite being pressed by the Tribunal, the applicant’s fear of returning to Mauritius now or in the reasonably foreseeable future is founded upon her returning to her ‘old life’ there after 12 years away; that is to say, her fear is of living with her in-laws, as a Christian, dependent upon and ‘controlled’ by them, and having nothing to show for her time in Australia. That the applicant holds these fears subjectively was clear to the Tribunal from her demeanour at the hearing; and there is no reason for the Tribunal to conclude that the fears are not grounded in some degree of objective truth. However, the Tribunal does not accept on the available material that the applicant faces a real chance of serious harm in Mauritius; or that the essential and significant reason for any harm would be a reason set out in s.5J(1).

The applicant did not provide any evidence to suggest that she or her family are at risk of sectarian violence or discrimination in Mauritius on account of their conversion to Christianity. This is consistent with the country information referred to by the Tribunal above which does not suggest that these are significant issues in Mauritius.
The Tribunal accepts that the applicant also has a generalised concern regarding the influence of drugs and crime in her community. However, these reflect broad socio-economic, political and legal conditions in Mauritius of general application. The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from such general conditions.
The Tribunal does not accept the applicant’s evidence concerning her brother-in-law’s alleged drug use; when pressed, the applicant was unable to corroborate her claims in this respect other than to note that he is presently unemployed and lives at her in-laws’ residence; moreover, she was unable to express her concerns other than in a generalised way of his potentially being a bad influence on her children.
Conclusions: first-named applicant
The Tribunal finds that the applicant does not face a real chance of serious harm for the reason of her Christian faith in Mauritius or for any other reason. The Tribunal finds that the applicant does not face a real risk of significant harm arising from her religion in Mauritius or for any other reason.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that she has been seriously harmed in the past or that, if she were to return to Mauritius now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
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) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Mauritius, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. 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 criteria in s.36(2).
Conclusions: second, third and fourth-named applicants
The second, third and fourth-named applicants’ claims for a protection visa are as members of the same family unit as the first-named applicant. Each was invited at the hearing to give evidence; however no further or other issues were raised for the Tribunal’s consideration.
It follows that the second, third and fourth-named applicants do not satisfy 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, they do not satisfy the criteria in s.36(2).
Final comments
Before formally recording its decision, the Tribunal considers it appropriate to note the following brief comments.
From the material before it, albeit limited to the applicants’ protection visa application materials, it appears to the Tribunal that:
a.the applicant and her family have attempted to follow the law in respect of their visa status from time-to-time and to explore various lawful avenues open to them;
b.although the present application is without merit the Tribunal is not persuaded that the application was being used by the applicant to circumvent the intentions of the migration programme, rather it appears to the Tribunal to have been made with genuine intentions; and
c.prima facie, the applicant and her husband may have been the victims of illegality or sharp practice in having been encouraged to travel to [City] on the promise of employment and visa sponsorship;[2] that this event has had a deleterious effect on the family’s financial and emotional wellbeing is apparent from the evidence of their pastor, [Rev Dr A] (see para [5] above).
[2] The Tribunal cannot and does not make findings on whether this is in fact the case.
The Tribunal also notes that the third-named applicant is presently [Age] years old and has recently graduated high school; and that the fourth-named applicant is presently [Age] years old and is scheduled to begin year [grade] next week. Both have been resident in Australia for over 10 years. The applicant’s evidence is that neither of her children speak French, nor are they accustomed to life in Mauritius.
These factors are not relevant considerations for the decision currently before the Tribunal. That said, they appear to the Tribunal to be matters which ought to be referred to the Minister to consider whether an intervention is justified in this case.
The Tribunal will make that referral.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Damian Creedon
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 158

28 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Natural Justice