1711890 (Refugee)

1711890 (Refugee) [2021] AATA 4208 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1711890

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Luke Hardy
DATE:30 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2021 at 12:24pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – atheist – particular social group – bisexual male – blasphemy – physical violence – fear of killing – opposition to Islamic extremism – murder of atheist bloggers – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
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
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 5 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [named], is a citizen of Bangladesh. He arrived in Australia on a [temporary] visa [in] September 2016. He applied for the protection visa on 4 October 2016. He was invited to attend an interview with the delegate, scheduled for 12 April 2017 but he did not respond to the invitation and did not attend.
The delegate refused to grant the visa for want of being able to test [the applicant’s] claims and on the basis that there was insufficient information in his application on which to ground a decision in his favour.
[The applicant] the sought merits review of that decision in this Tribunal. The matter was constituted to me.
[The applicant] attended a telephone hearing of this matter on 24 September 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 the 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 were the hearing not to be conducted by telephone.
[The applicant] agreed to a telephone hearing, in that he confirmed his telephone number in this “Response to Hearing Invitation” form and indicated that he did not expect to have difficulty giving evidence at the hearing as scheduled. He did not express any reservations about proceeding by telephone during the hearing itself. He indicated that he did not intend to rely on any documents including witness statements at the hearing. He indicated that he did not intend to present any oral witnesses.
The hearing took place with the assistance of a Bengali-English interpreter. [The applicant] had expressed some sensitivity in his original application form about giving evidence in the physical presence of a Muslim interpreter, worrying that his claims might cause offence. I considered this concern. I note that it was not repeated in the “Response to Hearing Invitation” form . As all interpreters engaged by the Tribunal are professionals I did not specifically request a non-Muslim interpreter. On the day of the hearing, [the applicant] expressed no reservations about proceeding with the interpreter engaged.
No significant audio level factors compromised clear exchange through the interpreter. However, there were a few instances in which the telephone conference connection with the interpreter briefly dropped out and one occasion later in the hearing when this happed to the connection with [the applicant]. All these issues were remedied. I checked with [the applicant] whether he had been able to give all the relevant oral evidence he had wanted to give in this matter and he said he had done. Overall, I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, [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 his original protection visa application, [the applicant] claimed to have lived all his life at the same address in Dhaka, Bangladesh’s capital.
[The applicant] claimed to be married with two [children], both attending school.
[The applicant] claimed his feared being persecuted in Bangladesh because he is an atheist and bisexual. He claimed that Bangladesh’s predominantly Muslim society does not tolerate atheism which it treats as blasphemy. He also claimed that state law Muslim tradition associate bisexual and homosexual males with indecency, depravity and the proscribed sexual act of sodomy.
[The applicant’s] claims can be argued to relate to the s.5J(1)(a) criteria of “religion” (atheists and blasphemers) and “membership of a particular social group” (male bisexuals and/or homosexuals in Bangladesh).
[The applicant] claimed he left Bangladesh to escape possible harm by Islamic extremists and a generally intolerant society:
I fear that I may be targeted to be killed by the Islamic extremists because of views on Islam. I also fear that in case my bisexuality becomes known, I will be subjected to harm. I also fear that because of my strong anti[-]Islamic sentiment and bisexuality, there is a strong chance that my family may be subjected to harm ...
I was verbally warned about possible harm if I expressed my views on Islam …
It is not practical to seek help from the authority because: 1) the authority is not able to offer any realistic help. 2) Bangladesh society and the Government is not tolerant to male to male sex. 3) I can be charged with Blasphemy by the authority ...
There is no part in Bangladesh where I would be protected from harm. Islamic extremism is widespread in the entire country.
[The applicant] did not suggest that he had ever suffered any past harm, actual or threatened.
Evidence to the Tribunal
[The applicant] told me his wife and [children] still live at the same address where he lived up until the time he came to Australia. He said he had been married for eleven years. He said he is working in Australia but does not need to supports his family in Bangladesh wife and [children] because they derive sufficient income from a rented-out investment property. He said that since he came to Australia his wife and [children] have moved in with her parents. He said that he is in regular contact with them all and that their relationships are good. He said that if he obtains a protection visa he will sponsor his wife and [children] to join him here in Australia. He said that one of the reasons he wants to sponsor them here is that he does not want his [children] growing up in a country where fundamental Islam has something of a foothold.
I asked [the applicant] about his [specific temporary] visa. He said that he did not know anything about it as an agent had arranged his travel for him.
[The applicant] did not describe to me any past instances of potentially relevant harm in Bangladesh, actual or threatened. I asked [the applicant] if he could tell me specifically who had warned him in his past against criticising Islam; in reply, he said he could not remember.
[The applicant] did say he once encountered a small group of students from a local madrassa or Islamic college. He said he had struck up conversation with them and asked them why they were studying there instead of in a state or other private institution where they might study to become doctors or engineers or the like. He said the group became less friendly when he asked about the risk of fundamentalist thinking taking over Bangladesh. He said they stood up and told him off. He said the conversation ended there and he walked away, evidently unharmed. He cited no similar or more serious incidents from his past.
Generally, [the applicant’s] claims were about being opposed to Islamic fundamentalism rather than opposing other people following Islam per se. I asked him to comment on the possibility that people who live in the capital like him might generally not pry into the specific individual religious or irreligious thinking of their urban neighbours, particularly in the circles in which he moved there. I put to him, for example, that society generally might not be keeping watch on who goes to Friday prayer at the mosque and who does not. In reply, [the applicant] said that during the fasting month Ramadan he could not break his fast without attracting disapproval from people around him. He did not appear, though, to include his wife and [children] in this problem, and he did not suggest the responses he received were anything harsher than disparaging looks or words. He certainly did not suggest he was ever threatened with serious or significant harm over such actions.
[The applicant] told me he nevertheless feared being killed in Bangladesh on the basis of two famous atheists bloggers, who he correctly named, having been very violently murdered in 2015. He named both of these bloggers and gave evidence about then consistent with independent media reporting.[1] I asked him if, like the two men he described to me, he had ever been engaged in publishing atheist or potentially “blasphemous” opinions, and he said he had not. He did not give the impression of ever having been interested in doing so, let alone of having had the desire to but for fear of being persecuted. Generally he spoke of expressing opinions against religious extremism.
[1] “Bangladesh Avijit Roy murder: Five sentenced to die for machete attack on blogger,” BBC News, 16 February 2021, “Bangladesh blogger Niloy Neel hacked to death in Dhaka,” BBC News, 7 August 2015,
DFAT reports[2] that leaders of Islamist parties like the Jamaat-el-Islami face high likelihood of being arrested and prosecuted. I put to [the applicant] that the state and the authorities are also active in trying to curb extremist Islamist influences in Bangladesh, the potential import being that his views on that topic might not be out of step with society generally, give or take the kind of reaction he claimed to have drawn from the madrassa students. [The applicant] did not rebut these positions as put to him.
[2] DFAT Country Information Report: Bangladesh, 22 August 2019
After we discussed [the applicant’s] “religion” claims, I asked [the applicant] if he had any other claims he wished to discuss. He said he did not. I asked him this question again and he said he did not. I asked him if he was saying that he would be happy, in that case, for us to end the hearing having discussed the claims hitherto raised and he said he would. He repeated that he had not more claims to discuss. I then put to him that this would mean not discussing and testing the claims he appeared to have made in his original application about being “bisexual”. He then indicated that he was open to discussing those claims.
I asked [the applicant] to explain what he had meant in his original application when he said he was bisexual. In reply he said that he lacked some of the physical organs of other males and that this meant he was gay. I asked him what he meant by this and he said that his penis and testicles are small, meaning that he has not been able to satisfy his wife. I asked him what any of this had to do with being bisexual or gay and he was unable to provide a cogent answer. I asked him if he might be able to discuss or present any evidence of having been bisexual or gay. In reply, he said he did not have a doctor’s certificate, apparently referring to something that might attest to the physiological details he had just been discussing, but offered to try to obtain one. I put to him that such a diagnoses would not likely be even relevant to the issue of sexual orientation. I asked him if he might be able to discuss or present evidence, say, in the form of a personal narrative of his experiences. He did not offer one in reply. He said he might be able to locate a previous male sexual partner to provide a statement. I put to him that his protection visa application was already five years old, that the Tribunal had asked him to submit documents seven days before the hearing and that he had not provided anything to date. I note, again here, that he told the Tribunal in writing that he did not intend to present any potential witnesses or documents at the hearing in support of his application. I put to him that in this light, I was not feeling inclined to provide him with a finite or indefinite extension of time to provide material that he had already indicated he did not have. I invited him to comment on this and he did not raise any opposition. I gave [the applicant] an opportunity to provide a description of how a possible witness might fit within his overall narrative, but he did not provide any useful information.
I asked [the applicant] again if he had any narrative of past experiences that he might like to mention in support of his claim to be bisexual. He apparently did not. He indicated that if a medical certificate describing his physiognomy were not likely to be of much use he did not have much to add. He repeated the opinion that his wife appeared dissatisfied with his sexual performance.
I asked him if he could provide a context in which, though bisexual or gay, he wanted to sponsor his wife to Australia. (It was not that I perceived or apprehended that these facts need necessarily be mutually exclusive; I was trying to adduce from [the applicant] a subjective human perspective on the issue.) In reply, he said he just wanted to get his [children] away from fundamentalist influences in Bangladesh.
I asked [the applicant] why he had been prepared to end the hearing without discussing his claims about bisexual orientation, and he said that he had just gone along with the suggestion at the time that we end the hearing, assuming that this was how Tribunal hearings were conducted. He did not suggest that he had been sensitive or reticent about discussing these particular claims. I reminded him that I had asked him several times if he had any other substantive claims to discuss and that he had said he did not.
Concluding, [the applicant] said he wanted to free his [children] from having to live in a society in which fundamentalist influences are spreading.
I asked [the applicant] if he had anything he wished to add to his substantive claims and he said he did not. We then ended the hearing.
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].

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 Bangladesh, 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, along with various AAT Guidelines.
I have considered all of the evidence in this matter separately and cumulatively. Generally, however, I find [the applicant’s] evidence vague and lacking in helpful detail. I asked myself if there might be any factors beyond his control affecting his capacity to give cogent evidence in this matter but, on the evidence before me, and also taking in the conditions of the telephone hearing, I am not satisfied that he was prevented from giving detailed and meaningful evidence for any reason.
With regard to his “religion” claims, I accept that [the applicant] is an atheist, but on his evidence at the hearing, his opposition is not to religion per se, but to the danger posed, as he sees it, by religious extremism in Bangladesh.
I am prepared to accept that [the applicant] had that one encounter with the madrassa students. On his evidence, though, I find that it was an isolated episode and not one to which I can give much if any weight. [The applicant] presented at the hearing as being able to recall only this one incident. From that, I infer that other occasions on which [the applicant] spoke of or alluded to topics involving religion were less memorable in that they likely met with less consternation and were likely less serious, from his point of view, than this one particular episode. Furthermore, [the applicant] neither suffered nor was threatened with serious harm, notwithstanding that the students stood up from where they were sitting when they purportedly became uncomfortable with his enquiries. Having considered this evidence, I am not satisfied that this episode gave or gives rise to a real chance of [the applicant] being persecuted in Bangladesh.
Recalling that [the applicant] claims fear of being murdered in light of what happened to at least two other individuals who he named and described as famous bloggers critical of religious institutions and religious fundamentalism, I am not satisfied, for the purposes of determining the well-foundedness of that fear, that he shares any significant attributes with those bloggers. His evidence leads me to the view that he has little interest in or intellectual capacity for articulation of what he calls his views on religion.
Generally, [the applicant] described his broad position on religion as being potentially detectable in Bangladeshi society through some of his actions or omissions rather than through any polemics or preaching. This is clear in his description of how people viewed him or would view him in the event of his not adhering to the fasting rules associated with Ramadan. Describing how he was or would be treated in such circumstances, [the applicant] merely said he attracted or stood to attract disapproval. On this evidence, I give very little weight to [the applicant’s] claimed flouting of Muslim traditions, as it does not involve harm that rises to a level that is serious, and thus does not meet a level capable of being reasonably regarded as persecution, even over a cumulative period of time.
Having regard to s.5J(3) of the Act (see Attachment below), I am not satisfied on the evidence before me that [the applicant] will refrain from disseminating his views on religion out of a fear of being persecuted, notwithstanding that DFAT[7] reports that anti-religious polemicists face a high risk of serious harm in Bangladesh. Notwithstanding the unproductive episode with the madrassa students, [the applicant’s] evidence of past behaviour argues that he is genuinely interested in sheltering away from the influences and effects of fundamentalism on the society in which his family lives, rather than confronting religion or religious people, fundamentalist or otherwise.
[7] DFAT Country Information Report: Bangladesh, 22 August 2019
I give some weight in this matter to the DFAT evidence of the Bangladeshi authorities willingness and ability to seek to curb the influence of fundamentalist and extremist Islam such as through arresting and prosecuting Islamist leaders.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Bangladesh for reasons of “religion”. I am not satisfied that he faces a real chance of being persecuted Bangladesh as an actual or imputed atheist or blasphemer.
As to [the applicant’s] claims regarding his status as a bisexual or gay man, I find his evidence on the subject vague, rambling, unfocused and totally lacking in factual detail. Ultimately, then, these claims lack merit. I do not accept on the evidence before me that [the applicant] is bisexual or gay.
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 Bangladesh in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He 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 Bangladesh, I find that Bangladesh 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 his refugee status claims. Those claims have failed as refugee status claims due to their lack of meeting the “real chance” test. In view of this, and because the "real risk" test imposes 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 Bangladesh, 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, he 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 4208

30 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction