1711525 (Refugee)

1711525 (Refugee) [2021] AATA 4368 (30 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711525
COUNTRY OF REFERENCE:                   Peru
MEMBER:Luke Hardy
DATE:30 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 August 2021 at 3:29pm
CATCHWORDS
REFUGEE – protection visa – Peru – member of a particular social group – lesbian – accepted by parents but pressured and mistreated by relatives – discrimination by community, church and government – one relationship with a woman before being forced into marriage by family – very long residence as unlawful non-citizen – relationship with man, and child now a citizen – limited social or community life as lesbian and no relationships – inconsistent claims and evidence – remaining relatives now dead or elderly – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), (3), 36(2)(a), (aa), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
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 8 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Peru. She arrived in Australia in 1980 on a visa valid until December of that year. She had been residing illegally in Australia for around 35 years when she applied for the visa on 14 October 2015. She was invited to attend an interview with the delegate, which she did not attend. The delegate refused to grant the visa on the basis that there was insufficient evidence before him to satisfy him that she was a lesbian, as claimed. [The applicant] then sought review by this Tribunal, and her matter was constituted to me. For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision.
[The applicant] attended a telephone hearing of this matter on 25 August 2021. The hearing was held during the current lockdown caused by the outbreak of the Delta variant of the pandemic COVID-19 virus. I exercised its 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 applicant]. 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 applicant] initially had asked if she could be heard in a video hearing but some technical issues made that difficult to organise on the day. In the end, [the applicant] raised no objections to the hearing being conducted by telephone and the hearing proceeded without difficulty.
The hearing was facilitated by an interpreter in the Spanish-English medium. No audio or other factors compromised clear exchange through the interpreter. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
[The applicant] presented her son as a witness in this matter and I allowed him to give evidence during the hearing.
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 issue in this case is whether on accepted facts [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
In her original application, [the applicant] claimed to be a lesbian from Lima, Peru’s capital. She claimed she formed a relationship with another female when she was [age] years old. She claimed she was pressured by her family with regard to her sexual orientation and forced at age [age] into marriage with a man. She claimed the marriage lasted only 18 months and that she left it due to her sexual orientation. She claimed she faced scorn and discrimination from her community, the Catholic church and her government. She claimed she was virtually homeless for twenty months and was taken in by a cousin who cared for her. She claimed she described her situation to her sister [in] Australia and that she was encouraged to come here for her own safety. She claimed that after she arrive here she lost her fear. She said she then met a man with whom she bore a son.
[The applicant] claimed to the Department that she kept her sexual orientation a secret in Australia to prevent any harm coming to her son in the event of anyone here finding out that she was a lesbian. She claimed she could not return to Peru because she would face persecution deliberately targeting her for reasons of her sexual identity. On this basis, one would reasonably assume that her son would have been an independent witness, say, to her having lived or socialised openly as a lesbian.
[The applicant] was around [Age] at the time of the primary decision and her son was around [Age]. She would now be around [Age] and he [Age].
Evidence to the Tribunal
[The applicant] told me she completed high school in Lima, where she lived with her parents, and went on to work in a [shop] there for 12 to 13 years. She said her sexual orientation was known to her family. She said her brothers and cousins used to use disparaging language towards her. She said that one cousin once slapped her around three or four years before she came to Australia. She said her parents “accepted” her sexual orientation because she was their daughter, but pressed her to get married anyway.
[The applicant] said she stopped working in Lima two years before coming to Australia due to fears and pressures relating to her sexual orientation. She said she then “met other people” and moved away from Lima to another district called Ica. I note that Ica is a desert city relying on agriculture, located around 306 km southeast of Lima. [The applicant] said she was living far away from family and relatives in Ica but was still aware that her cousins used to speak ill of her amongst themselves. When I asked her what kind of words were used by her brothers and cousins against her, she said, “Get out of my sight,” and “Go away.”
Generally, [the applicant] qualified all descriptions of her treatment in Peru as having been of the time when she was there, as a young woman in whom family members had expectations that differed from her own. I therefore asked [the applicant] how many of her family and relatives might still be alive and she said she did not know. She said that both her parents had died. She said that she did not know how many of her cousins might still be alive. She said that if any of them were still alive they would be very old now. She nevertheless said she would be scared of her family speaking ill of her if she were to return to Peru. I put to her that when describing her family’s behaviour, she appeared to have set in it a bygone time and attributed it to people who might now be dead. In reply, she said, “Yes." I asked her if, in the actual circumstances now and in the reasonably foreseeable future, her more realistic fear might be that she will just be lonely. In reply she said this was not the case and added that she still fears whoever might still be alive amongst her relatives. However, later in the hearing, when I put to her that society in Peru might pay no attention to the sex life or sexual orientation of a woman in her [Decade], she said that Australia is where her son, an Australian citizen, and her grandchildren all live. She said she has no-one in Peru.
At one point in the hearing, [the applicant] gave substantially different evidence as to why she moved away from her family and job in Lima and relocated to Ica. Having earlier claimed that she stopped working in the [shop] and moved away from home to avoid pressure and harassment there, [the applicant] told me that the reason she moved to Ica was because she married a man who took her to live there. I note that she described the marriage in her original application as a forced one that ended because she was lesbian. There thus appeared to be some inconsistency in [the applicant]’s evidence as to why she moved to Ica. In addition to this, whereas she said she found herself virtually homeless for her last 20 months in Peru, she told me that she married two years before she left Peru and separated form her husband six months before she left. In that timeframe, it is hard to see how she could have been homeless for 20 months.
Soon after arriving in Australia, [the applicant] entered into a relationship with a man who became the father of her son. Alternately, she described this liaison as a relationship in its own right that lasted a year or two before it ended, and purely as a friendship that provided her with the opportunity to have a child, that friendship lasting to the present day. Whereas the two descriptions are not entirely mutually exclusive, and whereas, subjectively, past relationships are understandably difficult to analyse free of justification and revision, [the applicant]’s evidence here struck me as somewhat confused. In any event, on [the applicant]’s evidence, having left Peru purportedly to pursue her sexual identity as a lesbian, she did not evidently seek to situate herself amidst a lesbian community but, rather, entered into a relationship with a male who fathered her son. [The applicant] said that the fact she had wanted to have a son did not change the fact that she was a lesbian, and I indicated to her that I accepted this as a general principle.
I asked [the applicant] if she could comfortably describe to me her social life as a lesbian in Sydney since 1980. Her evidence in response, however, was vague and not very helpful. For example, her first response was that she dedicated herself to work and raising her child. She said that in those circumstances she was only able to go out sometimes for drinks with some lesbian friends. She said they used to go to venues Sydney’s Oxford Street precinct, which is, I note, more famous as a social hub for male gays. I asked [the applicant] if she could remember the names of any the venues where she rendezvoused with her friends and she said she could not remember because she stopped going a long time ago.
I asked [the applicant] if she had ever formed any intimate relationships after arriving in Australia. She said that she had friends from “that time” when she used to go drinking with lesbian friends. She said that sometimes she and her friends would eat out, go shopping together and have drinks in their respective houses but she would always go home. Even allowing for the potential sensitivity of the subject of this visa application, [the applicant], who claimed to be “out” to her family, and who described having had a sexual relationship for about five or six years from the age of [age] with a woman [in] Lima, did not discuss her social life as a lesbian in Sydney over the last 40 years in any helpful detail. In the man, she appeared to indicate that she only socialised with lesbians for a period that ended some decades ago. It was very difficult to adduce from her a human narrative to support the otherwise bald claim that she was and is a lesbian.
One factor in her support was her son who said that he was aware of the subject of his mother’s sexual orientation from things said over the years. He said she would have no relatives to support her in Peru because they would prefer to abuse her. He said his mother had “copped a lot of abuse over the years” appearing here to talk about her time in Peru before he was born. He said that people with LGBT+ sexual orientations/ gender identities are still mistreated in Peru.
[The applicant]’s son said that the only visa application she had made before lodging her protection visa application had been an unsuccessful Absorbed Person application in or around 2016.
I reminded [the applicant] that the delegate had referred to country information indicating that although there was evidence of some discrimination against LGBT+ persons such treatment usually involved the bullying of LGBT+ youth: the independent country information did not appear to suggest that she faced a real chance of being persecuted for reasons of her claimed sexual orientation. In response she said that all cases are different and that in her case she still has “fear.” She did not elaborate on this in any way, but she still seemed to eb referring to the disparaging attitudes of whichever of her relatives who might still be alive.
I asked [the applicant] if her family members in Peru were aware that she had borne and raised as on here in Australia and she said that some probably know. On that point, I asked her if the “lesbian” issue really mattered to anyone in her family any more and she said it would because her being a lesbian was the reason why she got divorced back in or around 1979.
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.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] 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.[3] 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.[4]
[3] 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
[4] Sun v MIBP [2016] FCAFC 52 at [69].
Particularly pertinent to this case, I am mindful of the sensitivities that can arise when discussing claims involving sexual orientation and/or gender identity. Beyond making an assertion, it can sometimes be difficult for an applicant to substantiate such a claim and for decision-makers to evaluate it. By their very nature, such claims involve private matters of self-identity and sexual conduct, and sometimes personal issues or incidents that may be stressful or unresolved. Social or cultural attitudes to homosexual orientation, in countries such as Peru, may exacerbate such problems.

Relevantly, I have had regard, for guidance, to UNHCR’s Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.
I find that [the applicant]’s claims relate to fear of being persecuted for reasons of “membership of a particular social group” that can usefully be characterised as “lesbians in Peru.” On this basis, her claims have a necessary nexus with s.5J(1)(a) of the Act.
I have considered all of the evidence in this matter separately and cumulatively.
I accept that [the applicant] was born, raised, and educated in Lima, Peru. Although the claim as completely unsupported, I can accept that she may have had a lesbian relationship in her [younger years], but just as she says that one relationship with the father of her child does not make her heterosexual, it can equally reasonably be said that one youthful lesbian relationship might not mean that she was or is lesbian. In this case, the evidence in support of [the applicant]’s claims to be a lesbian is vague, unsupported, sometimes inconsistent, and mainly concerned with purely social activity in which she purportedly engaged a long time ago. I do not overlook the evidence of [the applicant]’s son, who said that the issue of sexuality as been around for a long time in his family, but, with all due respect, nothing he said added much if any independent weight to his mother’s testimony about being a lesbian. I have been careful not to read too much into the fact that [the applicant] was in a relationship with a man soon after arriving in Sydney: there may have been a variety of need and motivations at play.
Overall, however, there is insufficient evidence before me, in this matter, for me to be satisfied that [the applicant] is a lesbian or that she would be imputed to be one in society in Peru, including in any society she keep or have to endure with surviving relatives.
In any event, the harm that [the applicant] claims to fear, in the event of return to Peru, is merely discriminatory talk from relatives with whom she evidently has no emotional or other ties. As such, the harm she describes is not serious enough to be reasonably regarded as persecution and, furthermore, as described by her, it is highly localised and the chance of it occurring is entirely within the realm of bald speculation. For this reason, even were there sufficient evidence to satisfy me that [the applicant] is a lesbian, and there is not, the harm she claims to fear is not persecution and she would still not meet the “real chance” test.
I have not overlooked [the applicant]’s claim to have been slapped once by a cousin in circumstances, she seemed to imply, where her lesbian sexual orientation was mentioned or imputed. However, on the evidence before me, at its best, this was an isolated and localised episode and it is not possible for me to conclude that the conflict in which it occurred involved no other subjects of contention. On her evidence, [the applicant] is not even sure if this cousin is still alive.
Supposing that [the applicant] is a lesbian, although there is insufficient evidence on this matter to satisfy me that she is, I have considered whether she will modify her behaviour so as to be discreet about her sexual orientation in Peru out of fear of being persecuted. (Ref. s.5J(3) of the Act.) Regarding this, I reiterate that the harm [the applicant] claims to fear is discriminatory but not serious enough to regard as persecution and, here more importantly, her evidence about her forty years or more in Australia indicates that she is not genuinely interested in socialising as a lesbian, or being particularly “public” about it, let alone being “out,” or proclaiming her sexual orientation, or being activist in relation to it.
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.
[The applicant]’s claims to complementary protection are essentially the same as her refugee status claims. Those claims failed because, at their best, they involved localised harassment and did not involve harm that could reasonably be regarded as rising to the level of serious harm, and also because, in view of the speculative nature of the claims, they lacked the essential “real chance” element. Here, I also find that the harm [the applicant] identifies in her claims does not even remotely rise to the level of “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”, let alone the “death penalty.” Also, 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).
Other findings
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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 4368

30 August 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction