1711298 (Refugee)

1711298 (Refugee) [2021] AATA 1663 (27 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711298
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Denise Connolly
DATE:27 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 April 2021 at 11:13AM
CATCHWORDS

REFUGEE – Protection visa – Lebanon – Alawi Muslim – applicant was not involved in conflict –partner visa refused – applicant is in a genuine relationship with his Australian citizen wife – son’s serious ongoing medical conditions – strong compassionate circumstances – children’s best interests – referred for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Lebanon, applied for the visa on 21 April 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background to the review
The applicant is a [age]-year-old Lebanese national. He arrived in Australia [in] August 2011 on a Prospective Marriage (Subclass 300) visa and married his sponsor, Ms [A], on [date] December 2011. They have since had two children. He was granted a Partner (Subclass 820) visa on 22 July 2013. He is an Alawite Muslim whose family is from Jabal Mohsen, Tripoli. He worked [in various jobs] in Lebanon.
The applicant and his wife had their daughter in [year] and his wife was pregnant at the time of his protection visa application. Their son was born in [year]. His wife, her family and the applicant’s children are Australian citizens, residing in Australia.
The applicant’s representative explained in a written submission, attached to the visa application, that the applicant was traumatised because his Partner (Subclass 801) visa was refused because he had not responded to the Department’s request for information. His application for review by the AAT was lodged late and therefore the decision could not be reviewed. The representative submitted that the applicant, an Alawite, feared returning to Lebanon because the area he comes from, Jabal Mohsen, is very dangerous with continuous fighting, killing and bombing. He claimed he was previously threatened at his place of work, near [Street 1]. As he is an Alawite he cannot return to Jabal Mohsen with his wife and two children as it is dangerous. He is very attached to his wife and children.
Evidence to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 16 May 2017. The Tribunal has listened to the recording of the interview. Relevant aspects of the applicant’s oral evidence are recorded in the decision record.
The applicant claimed his parent’s home [is near] Tebbaneh (Bab al-Tabbaneh – where most residents are Sunni Muslim), a critical area. Also the family house is occupied by his parents, [and a number of siblings] and it would be impossible to accommodate him and his family as the home has only three bedrooms. The applicant is suffering depression and the family cannot be separated.
At the interview with the delegate the applicant claimed one of his brothers had been killer by a sniper but he was not able to provide any particulars. He also claimed he would not be able to secure employment in Lebanon. He claimed to fear being killed because he is an Alawite. He claimed his family home in Lebanon had been shot at. He claimed he was armed and involved in fighting during a conflict, in [a specified] area, before he came to Australia.
The delegate raised her concern that the applicant claimed in the interview that he first feared harm in Lebanon when his daughter was born, in [year]. The applicant stated he always wanted to leave Lebanon but was waiting for an opportunity to do so.
The delegate was concerned that the applicant’s evidence about his involvement in the conflict was vague and that his claims to fear harm were generalised.
The delegate accepted the applicant is an Alawite and that some of his family members continue to reside in Tripoli. She found his claims were generalised, his family had a stable long-term residential history in Tripoli, and he had given no information to indicate he had a political profile or that he would be targeted if he returned to Lebanon. She noted the country information indicated the security situation had improved since 2015. She did not accept the applicant’s claim that the Lebanese Armed Forces would leave the Jabal Mohsen area if conflict erupted. She was not satisfied the applicant would be targeted by Sunnis if he returned to the Jabal Mohsen area because of his Alawite faith, or that he fought in conflict before he departed Lebanon. Having regard to the country information the delegate was satisfied the applicant would not be targeted in Tripoli and he would be able to secure employment.
Prehearing submission
In a written submission provided to the Tribunal before the hearing the applicant provided the following information. Prior to coming to Australia in 2011 he lived in the Jabal Mohsen area and there was a war between the Sunni and Alawite Muslims. Those in his area were trapped and under threat. If they left the area they were shot at. He was sleep deprived and lacked adequate nutrition as the grocery stores and butchers were closed during the war. Since he has arrived in Australia he has married and has two children. He is frightened of returning to Lebanon because he will miss his wife and children. He has a daughter [and] a son, [Master B] [who] was born sick and stayed in hospital for three months. His overall diagnosis is very serious and can be fatal if he does not take his medication. He assists in the management of his son’s medical conditions.
The applicant explained that he was refused his Subclass 801 visa because he did not meet the timeframe to provide further information to the Department. He fears returning to Lebanon, where he claims it continues to be a war zone. He also advised that his wife is currently pregnant with their third child, due [on date].
The applicant provided to the Tribunal copies of the letters sent to the Department in relation to its decision to refuse his Subclass 801 visa application in which he set out the same information described above.
Hearing on 22 April 2021
At the hearing the Tribunal discussed with the applicant the requirements of the law and the issues relevant to his review application.
Both the applicant and his wife presented their passports at the hearing, confirming he is a national of Lebanon and she is an Australian citizen. Their children were born in Australia and, given their mother’s citizenship, are Australian citizens.
The applicant confirmed that he has [siblings] [residing] in Australia. His parents are alive and continue to live in the Jabal Mohsen area near [Street 1] and [another] Street. They have been in the same house for over 30 years. He has [siblings] who are married and live in the same street as his parents. [Other siblings] live with his parents. He has a brother in [Country 1] and a sister in [Country 2]. Another brother died in 2014. He was working outside the Jabal Mohsen area. The applicant was not able to provide any particulars regarding his brother’s death.
The applicant confirmed that he worked as [an occupation] in Beirut before coming to Australia. However he claims he did not live in Beirut; he commuted to work from Tripoli. It took him about half an hour each way because he was working on the outskirts of Beirut. He confirmed he also worked in Lebanon as [other occupations] before coming to Australia. Since the applicant has been in Australia he has undertaken [work]. He currently runs his own [business], doing [specified tasks].
The Tribunal asked the applicant why he fears returning to Lebanon. He indicated that he cannot live in Lebanon because he cannot leave the area, Jabal Mohsen. The Tribunal asked if this was the only thing he feared. He said he is an Alawite and if he leaves the area he will be shot.
The Tribunal raised with the applicant the delegate’s concern that his evidence regarding his involvement in conflict in Lebanon was vague. It asked the applicant if he was ever involved in conflict in Lebanon. He told the Tribunal that he was not involved in conflict.
The Tribunal explained to the applicant that there was no evidence he had a profile in Lebanon such that he would be targeted if he returned. The applicant indicated that if he went back to Jabal Mohsen he would not be able to live there because there is no work in the area. He claimed that if he left the area he would be hurt.
The Tribunal asked the applicant if he could return to Lebanon and make another partner visa application. The applicant indicated that his migration agent had said that, if his review application was unsuccessful, the next step would be to approach the Minister asking for ministerial intervention. He had not considered returning to Lebanon to apply for a partner visa.
The Tribunal discussed with the applicant the country information indicating that the security situation had settled for Alawites in Tripoli. It noted that in March 2019 DFAT had reported that the tensions between Sunnis and Alawites had significantly reduced as the Lebanese authorities implemented a security plan in April 2015 that re-established a Lebanese Armed Forces presence in the area. DFAT also reported that violent clashes with religious overtones are much less common and, where violence still occurs between communal groups, such as between Alawites and Sunni is in Tripoli, it has generally been low level and localised.[1] It also noted that the Department’s country information service reported in November 2020 that, after 2015, there had been no recent reports of Alawites being targeted.[2] Also in March 2021 the US State Department report on human rights in Lebanon also makes no reference to Alawites being targeted.[3] The applicant indicated that the situation in Lebanon is very volatile and nobody knows when the violence could start again.
[1] DFAT Country Information Report Lebanon - 19 March 2019, pages 16 and 20.
[2] COISS, Common Claims Lebanon, November 2020, page 6
[3] Lebanon 2020 Human Rights Report, LEBANON 2020 HUMAN RIGHTS REPORT (state.gov)
The Tribunal noted that the applicant’s Subclass 801 visa was not granted because he did not respond to the Department’s request for information within the required timeframe. It asked if there was any explanation for this. He indicated that the request for information was sent to his wife’s email address. He did not answer because his wife was unwell, she was pregnant and they were moving, and she was not checking her emails. Once he received the notification it was too late to provide the information to the Department. However they approached a representative four days before the due date to seek review. That representative failed to make the review application on time.
The applicant indicated that, if his review application is unsuccessful, he will be seeking ministerial intervention because his wife will not be able to cope with the three children, particularly given as his son [Master B] has [medical conditions], all requiring ongoing management and medical treatment. His wife will not be able to care for her [Master B] and her other two children without his support.
The Tribunal took evidence from the applicant’s wife, Ms [A], who told the Tribunal she will not be able to cope without the applicant. Also the children are very attached to him. Whenever she takes her daughter out the applicant cares for their son. They have been together for over 10 years and they are very attached. She would not go to Lebanon with the applicant if he had to return and she would not let the children go there. The applicant indicated that the family cannot afford for him to return to Lebanon. If he goes back, he will never be able to come back to Australia because they do not have the financial resources. They asked that the Tribunal support a ministerial intervention recommendation.
After the hearing the applicant provided medical evidence from [Hospital 1], dated 4 March 2021, confirming that his son [was] born with [medical conditions]. He also has [other medical condition]. He requires daily medication and ongoing intensive medical management at the hospital. He also requires a stress/sick day management plan at times of fever, accidents and/or surgery.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant presented to the Tribunal his passport, confirming he was a citizen of the Republic of Lebanon at the time it was issued. There is no evidence before the Tribunal to indicate his citizenship has changed or that he has a right to reside in any other country. The Tribunal therefore accepts that the applicant is a national of Lebanon and assesses his claims against Lebanon as the receiving country.
Religion
On the basis of the applicant’s oral evidence, his marriage certificate indicating that he was married under the Muslim Alawi rites, and the family census record recording that the applicant’s religion is Alawi, the Tribunal accepts the applicant is an Alawi Muslim. The Tribunal also accepts that prior to travelling to Australia he lived in Jabal Mohsen, Tripoli.
Claims to fear harm if he returns to Lebanon
The applicant claims that if he returns to Lebanon he will not be able to leave the Jabal Mohsen area as he will be shot because he is an Alawite Muslim. The Tribunal has considered the relevant country information, referred to above and discussed with the applicant at the hearing. On the basis of that information it is not satisfied that the applicant would be targeted and shot if he left the Jabal Mohsen area of Tripoli. It accepts that there has been conflict in the past between the Alawites and the Sunnis however the country information indicates that since the Lebanese Armed Forces implemented a security plan in 2015 and the security situation in the area has been relatively stable since. The Tribunal notes that DFAT in 2019 reported that violent clashes with religious overtones are now less common in Lebanon and that conflict between communal groups has generally been low level and localised. DFAT also reported that there has been a significant reduction in the number of serious incidents of communal violence although underlying tensions remain. The Department’s country information service reported in November 2020 that, after 2015, there had been no recent reports of Alawites being targeted. Also in March 2021 the US State Department report on human rights in Lebanon also makes no reference to Alawites being targeted.
On the basis of the country information set out above the Tribunal is not satisfied the applicant would be shot at if he left the Jabal Mohsen area because he is an Alawi Muslim if he returns to Lebanon in the reasonably foreseeable future.
The applicant also indicated that he will not be able to secure employment in Lebanon and he and his family will not be able to live in the family home as it is only a three bedroom house. The Tribunal notes that the applicant’s wife and children are Australian citizens and so they will not be required to depart Australia. It has considered whether the applicant would be able to subsist in Lebanon. The Tribunal is not satisfied the applicant would not be able to return to the family home, in which his family has lived for over 30 years, if he returns to Lebanon. With respect to his claim that it will be too crowded it notes he lived there before as it was the family home. It is not satisfied his family in Lebanon will not support him and provide him with accommodation if he returns in the reasonably foreseeable future. While the Tribunal accepts that the employment situation in Tripoli may not be thriving, the applicant has indicated that in the past he has commuted to Beirut to secure employment and he was not harmed. The Tribunal is not satisfied the applicant would not be able to reside with his family and secure some form of employment such that he will be able to subsist if he returns to Lebanon in the reasonably foreseeable future.

The applicant has indicated that if he returns to Lebanon he will never be able to return to Australia because he does not have the financial resources, and he will be separated from his wife and children. The Tribunal is not satisfied this is the case. He has in the past been able to secure the resources to travel to Australia. He has extended family both in Lebanon and Australia. It is not satisfied there is a real chance he will suffer serious harm because he will not be able to afford to return to Australia if he returns to Lebanon in the reasonably foreseeable future. The Tribunal does accept however that the applicant’s wife and children may suffer if the applicant returns to Lebanon, as discussed below in its consideration of whether to recommend the Minister intervene in this case.
The applicant told the Tribunal that he was not involved in any conflict in the Jabal Mohsen area before he came to Australia. Accordingly the Tribunal is not satisfied the applicant has any profile in Lebanon such that he would be targeted if he returned to Lebanon in the reasonably foreseeable future.
The Tribunal has taken into account the applicant’s evidence that it is not possible to know when violence could start in Lebanon as the situation is volatile. While the Tribunal accepts that there are underlying tensions in Tripoli, it is not satisfied, taking into account the country information before it, that there is a real chance the applicant will suffer serious harm if he returns to Lebanon in the reasonably foreseeable future.
The Tribunal has considered the applicant’s claims that he will be harmed in Lebanon because he is an Alawi Muslim, who will not be able to leave Jabal Mohsen, will not have anywhere to live and will not be able to secure employment such that he will be able to subsist and return to Australia even if a partner visa is granted. The Tribunal has found the applicant will be supported and accommodated by his family. It notes that he has a range of employment experience such that it is satisfied he will be able to secure some form of employment in Lebanon, as he has done in the past. It is satisfied he will be able to subsist if he returns to Lebanon in the foreseeable future. His fear of another outbreak of violence in the future against Alawites is speculative. There is no evidence to indicate the applicant has a political profile or intends to participate in any political activities if he returns to Lebanon in the foreseeable future. The Tribunal is not satisfied there is a real chance that the applicant will suffer serious harm because of his religion or the economic situation or for any other reason if he returns to Lebanon in the reasonably foreseeable future.
Overall the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he returns to Lebanon. The Tribunal is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed, or for any other reason. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Complementary protection criteria
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
For the reasons set out above, relying on its findings on whether there is a real chance of serious harm, the Tribunal has considered all the evidence in relation to the complementary protection criteria and does not accept, on the evidence provided, that there is a real risk he will suffer significant harm. There is no evidence to indicate he will suffer arbitrary deprivation of life, the death penalty or torture, or that he will be arbitrarily detained or suffer corporal punishment. While it accepts he may have some challenges securing employment in Lebanon the Tribunal is satisfied the applicant has family support and accommodation and employment experience such that he will be able to subsist in Lebanon and will not suffer cruel, inhuman or degrading treatment or punishment. It is not satisfied he will not be able to secure sufficient financial resources to return to Australia if a partner visa is granted.
On the evidence before it, 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 Lebanon, 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) of the Act.
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).
Ministerial intervention recommendation
The Tribunal notes that the applicant’s Subclass 801 visa was not granted because he failed to respond to the Department’s request for further information within the required timeframe. His application to the AAT for review of that decision was also out of time. The Tribunal accepts however that the applicant is in a genuine relationship with his Australian citizen wife. Ordinarily this would not be sufficiently compelling for the Tribunal to contemplate recommending ministerial intervention. However in this case the Tribunal is of the view there are strong compassionate circumstances that if not recognised would result in serious harm and continuing hardship to his Australian family unit, given his son’s serious ongoing medical conditions and the age of his children.
The Tribunal is satisfied the applicant’s wife and children are Australian citizens. It notes his children, who it accepts are very attached to their father, are aged [age] and [age], and his wife is due to have another baby [on date]. It also notes from the evidence from [Hospital 1] that their son, [Master B], has serious, ongoing medical conditions that require daily management. It is of the view the applicant’s wife may struggle to care for their children on her own, without the support of the applicant. It is of the view there are compassionate circumstances regarding the age and health of [Master B] that, if not recognised, would result in serious harm and continuing hardship to [Master B] and probably also Ms [A] and their [daughter]. The Tribunal is of the view these are circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration. It is of the view it may be in the applicant’s children’s best interests that the applicant be allowed to remain in Australia.
Having regard to the Minister's guidelines on ministerial powers and evidence before it, in particular the report from [Hospital 1], the Tribunal considers that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens.
Accordingly this is a matter which the Tribunal recommends should be referred for ministerial intervention under s.417 of the Act with the recommendation that the Minister intervene to allow the applicant to remain in Australia.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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 1663

27 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies