1710618 (Refugee)

1710618 (Refugee) [2021] AATA 4080 (9 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1710618

COUNTRY OF REFERENCE: Peru
MEMBER:Luke Hardy
DATE:9 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 September 2021 at 12:52pm
CATCHWORDS
REFUGEE – protection visa – Peru – political opinion – opposition to the government – support for former President Fujimori – Fujimoristas – political demonstrations – fear of arrest – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v Avtar Singh [2016] FCAFC 183
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 12 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are citizens of Peru. The main applicant, [named], first arrived in Australia [in] January 2008. She applied for and received further student visas. She returned to Peru [in] November 2009 and stayed there for over two months, re-entering Australia [in] January 2010. Her last substantive visa expired on 20 June 2011 and she became an unlawful non-citizen in Australia. Just over four years later, on 21 August 2015, she and the other applicants lodged their protection visa applications. [The named second applicant] is her partner and the boy [named] is their son; both of these applicants are dependent applicants with no claims of their own, the success of their applications depending on the success of [the applicant’s].
[The applicant] claimed protection on grounds of “political opinion,” claiming that she faced persecution in Peru for having criticised the government, which she described as being undemocratic. She was invited to attend an interview to discuss her claims but failed to attend. The delegate refused to grant the visas on the basis that there was insufficient information on which to find that the applicants faced a real chance of being persecuted in Peru for any reason cited in s.5J(1)(a) of the Act, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Peru, there is a real risk that they would suffer significant harm.
The applicants sought review of the delegate’s decision and the matter was constituted to me. For the purposes of this review, the applicants submitted a copy of the delegate’s decision.
[The applicant] and [her partner] attended a telephone hearing of this matter on 2 September 2021. The hearing was held during the current lockdown caused by the outbreak of the Delta variant of the pandemic COVID-19 virus. That lockdown is ongoing and no end to it is yet known. I exercised the Tribunal’s discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicants. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding indefinite delay to the matter if the hearing were not to be conducted by telephone.
The hearing took place with the assistance by telephone of an interpreter in the English-Spanish medium. No audio or other factors compromised clear exchange through the interpreter. I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
At the beginning of the hearing, I drew attention to the existence of a non-disclosure certificate in the applicants’ Department of Home Affairs (the Department) file. The certificate purported to cover several folios in that file comprising internal Departmental working documents. The intention of the certificate was that I must not disclose the contents of the covered documents to the applicants, risking legal error if I did not. However, in that these were internal working documents, the certificate covering them is invalid, and I duly informed the applicants of this , as it meant that I was not barred from disclosing the barred material to them.[1] In any event, I found and disclosed to the applicants that the material covered by the invalid certificate was essentially irrelevant material, mostly about [the second applicant’s] student visa application, that had no bearing on the present applications and to which I would have regard. I invited comment on this and the applicants indicated that they had no concerns.
[1] Ref. MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 and Minister for Immigration and Border Protection v Avtar Singh [2016] FCAFC 183.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, any of the applicants are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
[The applicant], aged [age], gave evidence at the Tribunal hearing to the effect that she was a supporter of former president Alberto Fujimori who governed Peru from 1990 to 2000. She would have been [age] when, under pressure to resign, Fujimori fled into exile in Japan. Independent sources indicate that although the Fujimori tenure was dogged by scandals including alleged bribery and extrajudicial murders of political opponents, Fujimori’s politics, if not the man himself, have retained a popular following in Peru, although not enough lately to win government.[2]
[2] “Peru family drama threatens South America's success story,” BBC News, 16 January 2018, “Peru ex-leader Fujimori calls for unity after release,” BBC News, 7 January 2018,
[The applicant] claimed in her original application that she lived from birth in [year] until her fist departure for Australia at the same address in Lima. She claimed she attended university in Lima [between specified years].
Essentially, [the applicant] claims that while she was at university she belonged to an association of Fujimoristas who occasionally appeared in public including at gatherings protesting the government of the day and calling for the safe repatriation of Fujimori from exile. [The applicant] told me that her party was called Cambio (Change) 90. She said the ruling party at the time she left Peru was ABRA, under President Garcia. I note that both parties have dissolved, their members migrating to and from other parties over time. I put to [the applicant] that lots of people still openly support Fujimori, who was jailed, pardoned and jailed again in recent years, and she agreed that this is so.
[The applicant] said at the hearing that the demonstrations she attended used to attract opposition from other groups and that the police usually became involved, deploying tear gas cannisters and even hitting demonstrators like herself to disperse the crowds. She said that the police also took demonstrators’ names. She claimed at the hearing that during that time, her house was apparently monitored because people who she assumed to be supporters of the governments since the Fujimori era used to leave dead animals outside the front door. She said that she was sometimes verbally threatened by strangers. She said she reported these incidents to police but failed to obtain or retain any copies of her reports. She told me she did not have any material evidence of her difficulties back in those days. She said the situation prevented her from going to university any more and caused her to hide in a place where no-one knew where she was.
[The applicant] told me she did not try to investigate who had been harassing her because her father was a former military officer. This claim did not seem to make much sense.
According to her original protection visa application, [the applicant] graduated from university in [year]. However, as noted, she told me she did not: she said she fled to a place one or two hours away from Lima hiding away in a women’s refugee. When I put to her that this information appeared inconsistent with the evidence in her original protection visa application, in which she said she continued to reside in her family home until she came to Australia, she said that all she had done in the protection visa application form was provide her usual address. She did not suggest at the hearing that people continued to harass her after she left university; in fact, she said that no-one harassed her after she moved away from Lima. She later sad she encountered no harm while staying at the women’s refuge because she never went out.
I put to [the applicant] that the government in Peru had changed probably ten times since she was at university, under parties or coalitions that were as often as not of similar political stripe to Fujimori’s government. In reply, [the applicant] said, “Yes.” She added that the current president, in her view, supports terrorists.
I put to [the applicant] that her return visit to Peru appeared to coincide with a semester break and the Christmas-New Year period. In reply, she said that she went back when she did because her mother had suffered a life-threatening accident. [The applicant] said that when she retuned to Lima, she stayed in the family home and went regularly to the hospital to visit her mother. She did not suggest that she suffered any potentially relevant harm in Lima, either at home or out and about during her return sojourn there.
[The applicant] told me that she resumed her studies after she re-entered Australia but was unable to renew them when her visa expired because, according to the Department, she failed to submit a required document: a valid Confirmation of Enrolment (CoE). She said that by the time she submitted her CoE, she was still unable to secure a renewal of her student visa. She said she was aware at the time that her visa expired. She said this happened in 2012 or thereabouts. She said she was aware that she spent several years here as an unlawful non-citizen. I asked her why she took so long to apply for protection here, given the claim about having fled here in 2008 and given that she had been able to get away from Peru a second time in 2010. In reply, she said it was not until she had started a family here that she felt she should apply for protection. Then she seemed to change her response, saying she did not apply sooner because she had not known about the possibility of applying for protection until around the time she applied. Overall, she did not provide a satisfactory explanation for her delay in seeking protection.
I asked [the applicant] if she had continued to take an interest in Peruvian politics since coming to Australia and she said she had not.
I asked [the applicant] if she had any other information to provide and she said she did not. She then said that she would try “to send stuff” in support of her application. I considered this a request for more time. My response was that I would consider all information before me at the time of the decision in this matter but would not provide a set period given that the application was already over six years old and given that the Tribunal had already prompted [the applicant] to submit any additional material she might have prior to the hearing. In reply, [the applicant] said, “Okay. Thank you.”
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[6] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered all of the evidence in this matter separately and cumulatively.
I accept that [the applicant] lived in Lima. I accept that she attended university [between specified years]. I find on the evidence that she graduated from university and continued to live in Lima at her family home for a further [number] years before coming to Australia on her student visa. I do not accept on the evidence before me that she failed to complete her intended university studies in Lima and I do not accept that she relocated form Lima, let alone to a women’s refuge, let alone one that she hid in, rarely going out.
I accept that [the applicant] supported Alberto Fujimori while she was at university; many Peruvians did and still do support Fujimori openly. I give some weight to the openness of ongoing support for Fujimori even though he has been convicted in matters including extrajudicial killings of Peruvian citizens. I accept that [the applicant] belonged to a Fujimorista group during her time at university. I accept that she attended demonstrations that involved clashes with police and political opponents and that sometimes these clashes were violent. Overall, however, I do not accept that [the applicant’s] encounters with police at demonstrations almost two decades ago give rise to a real chance of being persecuted in the reasonably foreseeable future. In coming to this conclusion, I give eight to her completion of studies in Lima, her legal departure in 2009, her evidently uncontroversial return in 2009 and her legal and unhindered departure in 2010.
Given some of the problems in [the applicant’s] evidence, and given that she has never claimed to have had any leadership role in the group she supported, it is hard to accept that her home was monitored, that dead animals were dropped there to harass her or that people approached her and threatened her. However, even if I do accept that these things happened “back in the day,” as it were, I give more weight to [the applicant] having enjoyed freedom of movement in and out of Peru since her university days, and to the liberty with which people have been allowed to express public support for Fujimori up to the present even at polling places.

I give some weight in this matter to [the applicant] not having continued to take an interest in politics since her university days and since she came to Australia. On this basis, I find that she would not participate in politics in Peru for the sole reason that she is not interested, rather than out of a fear of being persecuted. I therefore find that she would not have to alter behaviour in any way to avoid being persecuted. However, as noted, the independent evidence leads me to the view that she could publicly support Fujimorista policies in Peru and not face a real chance of being persecuted there, either now or in the reasonably foreseeable future.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Peru for any of the five reasons cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Peru, I find that Peru is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant’s] claims to complementary protection are essentially the same as her refugee status claims. Those claims have failed as refugee status claims in part due to lack of consistency, due to exaggeration and for not having met the “real chance” test. In view of the "real risk" test imposing the same standard as the “real chance” test, [the applicant’s] claims can no more succeed as complementary protection claims that they have done as refugee status claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Peru, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The dependent applicants
For the reasons given above, it follows that the other two applicants are not entitled to protection visas.
Other findings
There is no suggestion that any of the applicants 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, they do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4080

9 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal