1721826 (Refugee)
[2023] AATA 3320
•01 August 2023
1721826 (Refugee) [2023] AATA 3320 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Melany Ramos (MARN: 9896522)
CASE NUMBER: 1721826
COUNTRY OF REFERENCE: Colombia
MEMBER:Senior Member G.A.F. Connolly
DATE:01 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 August 2023 at 6:39pm
CATCHWORDS
REFUGEE – protection visa – Colombia – former soldier fearing harm from FARC – served in army for one year – death threats in later job – country information – peace accord and FARC’s change to political party, with small dissident groups remaining – delay in applying for protection and two return visits – application made after peace accord – vague explanations for delay and fear of harm – no supporting evidence provided – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65, 423A
Migration Regulation 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 (Minister’s Delegate) on 25 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1] Applicant’s Protection Visa Decision Record, 25 August 2017.
The applicant is a citizen of Colombia and is [Age] years of age. The applicant served in the National Army of Colombia as [classification] for a period of 12 months from [Year] to [Year].[2]
[2] Protection Visa Decision Record, 25 August 2017, at 6.
[In] October 2007, the applicant arrived in Australia. There followed a series of applications and renewals of visas that enabled the applicant to remain in Australia.[3]
[3] The applicant’s movement history is set out in the Protection Visa Decision Record, 25 August 2017, at 1-2.
[In] March 2012, the applicant departed Australia to go home to Colombia.[4]
[4] Protection Visa Decision Record, 25 August 2017, at 1-2.
[In] April 2012, the applicant re-entered Australia.[5]
[5] Protection Visa Decision Record, 25 August 2017, at 1-2.
[In] May 2013, the applicant departed Australia to go to [Country].[6]
[6] Applicants Form 866 at question 69(2), declared 13 January 2017.
[In] July 2013, the applicant re-entered Australia.[7]
[7] Protection Visa Decision Record, 25 August 2017, at 1-2.
[In] November 2014, the applicant departed Australia to go home to Colombia.[8]
[8] Protection Visa Decision Record, 25 August 2017, at 1-2.
[In] December 2014, the applicant re-entered Australia.[9]
[9] Protection Visa Decision Record, 25 August 2017, at 1-2.
On 13 January 2017, the applicant applied for a protection visa.
On 25 August 2017, the Minister’s Delegate refused to grant the applicant a protection visa.
On or about 14 September 2017, the applicant applied to this Tribunal for review of the decision of the Minister’s Delegate.
The applicant appeared before the Tribunal on 21 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review by Ms Melany Ramos.
At the conclusion of the hearing, the applicant was given leave to file further evidence and submissions in support of his claim. The applicant filed a statutory declaration that addressed issues raised at the hearing.[10] In support of the applicants’ case, there were filed numerous statutory declarations and letters of reference in support of the applicant, his good character, work ethic, and personal qualities. These statements in support of the applicant were all individually read, considered, and all of them weigh, heavily, in the applicant’s favour, particularly in relation to the adverse matters of credibility that are dealt with later in this decision.
[10] Applicant’s Statutory Declaration dated 13 March 2023.
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 (Cth) (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
The Republic of Colombia and Colombia’s Revolutionary Armed Forces of Colombia (FARC) Rebels
As is well known, in the decades between 1964 and 2016, the Colombian Government and the Marxist-Leninist FARC rebels fought a brutal civil war which cost Colombia, now a nation of almost 52 million people, the loss of approximately 200,000 lives, and which caused another 6 million people to either be internally displaced or flee Colombia.[11] In 2016, the Colombian government and the FARC agreed to a peace deal. In June of 2017, the FARC commenced the surrender of their weapons and, instead, the FARC became a formal political party, under Colombian law, to be called the ‘Common Alternative Revolutionary Force’, now known as the Comunes Party.[12]
[11] Reuters, “Colombia's FARC party changes name to Comunes”, 25 January 2021.
The 2016 peace agreement that FARC and the Colombian government made had the effect of ending not just the civil war but, also, it started to reduce violence in the already violence-plagued Colombia. The United Nations note in April 2022 that parliamentary elections recently held then were “… the second time since the signing of the [2016 Peace Agreement]” that “… elections were mostly free of violence.”[13] While the FARC itself has not resumed violence on the scale of the four decades of the civil war, it is true that a small splinter group of about 2,000 FARC dissidents have continued to engage in fundraising through drug trafficking and announced a return to armed activity.[14] The Colombian government has responded militarily, with offensive strikes, killing many of these splinter-group FARC members and would-be leaders to prevent expansion and rearmament.[15]
[13] United Nations News, “Success of Colombia peace process hinges on ending violence: Mission chief”, 12 April 2022.[14] Associated Press, “EXPLAINER: What are Colombia’s ex-FARC splinter groups?”, 01 December 2021.[15] Reuters, ‘Colombia signs new peace deal with FARC’, 24 November 2016; BBC News, ‘After decades of war, Colombia's FARC rebels debut political party’, 27 June 2017; Reuters, ‘Peru arrests more than 50 in anti-drug bust at Colombian border’,16 July 2018; Al Jazeera, ‘9 Colombian FARC dissidents killed in bombing raid’, 31 August 2019.
The upshot of this relatively recent history is that the FARC has now disbanded, and while there is a very small dissident FARC violence faction, there has been, since the 2016 peace agreement, no sign of the sort of violent struggle, once waged, by the FARC or by the FARC’s adherents. While the dissident FARC does operate, there is no clear reason why even the FARC’s splinter groups would, in 2023, target someone like the applicant, especially as he is not a prominent person and he has been almost completely absent from Colombia since 2007.
From all of the reliable open-source reporting, the reality is that the FARC has been greatly diminished since at least the time that the 2016 peace accord was agreed and signed.[16] The former commanders of FARC and the paramilitaries have even issued an apology[17] for their campaigns of kidnapping:
Former commanders of the now disbanded Farc rebel group in Colombia have for the first time issued an apology for the kidnappings they carried out during the armed conflict.
A commission investigating crimes committed during 52 years of violence has promised more lenient sentences to those who admit wrongdoing.
Eight commanders called the kidnappings an "extremely grave mistake" and acknowledged the pain they had caused.
A peace deal was signed in 2016.
Thousands of people were kidnapped by the Revolutionary Armed Forces of Colombia (Farc) rebel group over the decades. Some were freed after ransom was paid, others were held for years, sometimes chained to trees, and some were killed or died in captivity.[18]
[16] NPR, “Colombia's FARC Rebels Laid Down Their Weapons, But A Growing Number Are Being Killed’,6 February 2020, < Reuters, “Top paramilitary, guerrilla leaders in Colombia ask forgiveness”, 05 August 2021.
[18] BBC News, ‘Colombian ex-Farc rebels 'ashamed' of kidnappings’,16 September 2020
For completeness, I note that the position of European Union analysts of contemporary Colombia is that:
Colombia is a unitary republic governed through elected democracy under a system with divided governmental powers (executive, legislative, judicial) with a written constitution which is the source and origin of all Colombian law. For more than 50 years, FARC-EP, the oldest and largest guerrilla group in the western hemisphere was in conflict with the government, until 2016 when a peace agreement was reached. A range of other paramilitary and criminal groups also became active, and although the FARC-EP peace agreement has been significant, other armed and criminal groups now perpetuate insecurity in the country where FARC-EP used to be present. Colombia is among the most long-standing democracies in Latin America, despite a long history of widespread human rights violations and violence, which pose challenges to the government’s capacity to consolidate the 2016 peace agreement with the leftist guerrilla group the FARC-EP and guarantee citizen security..
In early August 2022, Gustavo Petro (of the Pacto Histórico party) was inaugurated as President of Colombia; the first leftist president elected in the country’s history. Petro is himself a former member of the demobilised leftist guerrilla group, M-19. He was elected under ‘mostly peaceful conditions’ and won 50.4 % of the vote in a second round run off.. Petro has few links to the traditional political centre-right establishment and has called for the maximal implementation of the 2016 peace accord, announced peace talks with the ELN and other armed groups, re-establishing diplomatic relations with Venezuela, while establishing policy priorities around support for Colombia’s peace and reconciliation processes, addressing land inequality/reform, rural inclusion and poverty.[19]
[19] European Union Asylum, ‘EUA- COI Report Colombia country focus’, <Country Focus: Colombia, Country-of-Origin Information Report (europa.eu)>, December 2022.
Applicant’s Fear of Harm in Colombia
Hovering over this whole case is the simple fact that the applicant arrived in Australia in 2007 and he did not make his protection claim until 2017. Not only is that a date 10 years after the applicant first arrived but it is a year after the 2016 peace agreement was made, and, also, after the applicant had already twice returned home to Colombia (in 2012 and 2014).
The applicant claims to fear harm should he return to Colombia as a result of his having been a soldier in the Colombian regular army in [Years]. The applicant also expressed a general fear for his life in Colombia but he did not precisely identify any reasons why he would be threatened with any harm.
When the applicant was pressed to explain the harm that he feared, he reiterated that he was a former member of the Colombian national army and that he had received death threats from armed groups (such as FARC and ELN) when he was working as [an Occupation] at a [Workplace]. The nature of these threats was somewhat vague and hard to accept when the applicant explained them to the Tribunal, including whether or how the applicant was approached by rebel and paramilitary forces, a problem that was also apparent to the Minister’s Delegate, as well.[20]
[20] Protection Visa Decision Record, 25 August 2017, at 18-19.
The applicant did not deny he returned to Colombia on two occasions in 2012 and 2014. He said in the hearing that he had to use tactics learned in his Army service to avoid certain groups finding him. Quite why a former [soldier] in the Colombian army discharged in [Year] would be of hostile interest to the former FARC members in 2023 was never clear. The applicant said that he took steps to ensure he was not always in the same place and that he moved around among different members of his family. Despite what he claims was the threat to his security, it was never clear who, precisely, was threatening him, nor why.
The applicant was asked to explain the 10 year delay between his arrival in 2007 and his protection claim in 2017. The applicant’s explanation was that he felt safe when he first arrived in Australia, and was studying, but that when his visa expired, he said he felt fearful, and asked for advice, leading him to make his protection claim. Despite the applicant’s now expressed fears for his return to Colombia, the applicant did twice return to Colombia (in 2012 and 2014).
The applicant said that owing to his military experience, he was a target for paramilitary groups, not limited to the FARC. However, even when repeatedly pressed by the Tribunal for more details, he was unable to put the matter any more strongly or clearly than that there were in Colombia, allegedly, unidentified people from unidentified groups who on unstated occasions had approached his family for information on his whereabouts.
Assessing an applicant’s case
In assessing an applicant’s case, particularly in the absence of independent witnesses and documentation that will credibly support the existence of the harm claimed by the applicant, much will turn on credibility of the applicant herself or himself.
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is well-founded or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth. Similarly, an application for protection that is made some months or, here, many years after the applicant’s arrival in Australia, or which is otherwise accompanied by delay, will have to be explained in some detail, lest an adverse inference be drawn by a decision maker.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or for him. Nor is this Tribunal required to accept uncritically any and all the allegations made by an applicant.[21]
[21] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal must first make findings of fact on the claims that she or he has made. This may - and, indeed, almost always will – involve an assessment of the particular applicant's credibility. In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection (this is especially so where an applicant has been held in detention or in a prison). The Tribunal is, in this case, as in all cases, aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims. At the same time, an applicant who is not credible and/or who has unexplained delays will struggle to make out their case.
All of this said, as was stated above, the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence, especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[22]
[22] See Randhawa (1994) 52 FCR 437 at 451 per Beaumont J and Selvadurai (1994) 34 ALD 347 at 348 per Heerey J.
It is noteworthy, for example, that s 423A of the Migration Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made earlier, or the evidence not presented, in the time before the primary decision was made. This approach is the application of a rule of common sense in respect of judging adversely an applicant’s credit where she or he has engaged in delay or a failure to speak or act.[23]
[23] see Nominal Defendant v Clements (1960) 104 CLR 476 at 495 per Windeyer J.
Problems with the applicant’s case
The applicant’s protection claim was not made until a decade after he had first arrived in Australia – and despite the applicant having returned twice to Colombia in 2012 and 2014, to which he says he now fears to return, even as Colombia is, on any view, a safer or at least a much less troubled jurisdiction than it was when he left in 2007 and when he returned in 2012 and 2014.
Further, the applicant’s case was and is plagued not just by delay but by a lack of evidence going to what his fears were that would approach a minimal standard of plausibility. It is hard to entertain a claim for protection in all the circumstances of this particular application, where there is, at best, only some vague assertion of a fear of harm, which never quite amounts to anything that is remotely specific. I have said before that the Tribunal is not obliged to accept at face value, or at least, uncritically, the claims and allegations made by an applicant – but here, the application is in respect of harm that is in itself hopelessly vague. The applicant was given every opportunity to supply evidence to the Tribunal at the hearing, as well as by way of a grant of leave to file further evidence after the hearing, to thereby support his claim and answer the obvious questions raised by his case, but that was not done.
None of the foregoing is to doubt that the applicant has many articulate and convincing referees, as outlined at paragraph 15 above. That the applicant can have so many people, including community leaders, attest to his good character and work ethic, is to his great credit. These referees may well support the applicant in his application for another type of visa or for ministerial intervention. However, none of this can, realistically, help in a protection claim, such as this one, where it was made in the circumstances of the applicant’s entry and residence in Australia in the circumstances of what is set out in paragraph 39 above.
Consideration of Credibility
The applicant did not satisfactorily make his case or explain his delay in claiming protection, either in his hearing or in the further period of leave given to him to file evidence and submissions in support of his application. The unexplained delay in the applicant’s making of his protection claim, his returning to Colombia on two occasions before the 2016 peace agreement was signed, is what, fatally, damages his credibility and causes the failure of his claim for protection. I would decide this case adversely, in any case, against the applicant and his claim, because of the sheer lack of evidence and specificity in respect of the harms that he claims to fear. This Tribunal should never have to guess at what case an applicant is making for the existence of protection obligations owed by Australia. Overall, there may have been plausible explanations for the applicant’s conduct, for his delay, and for his returns to Colombia, and for his claimed fears of harm, but the applicant did not make plausible explanations of any of these matters before the Tribunal.
FINDINGS
Therefore, based on the implausibility and insufficiency of the arguments made and the evidence relied on by the applicant, I find that that the applicant is neither a refugee nor is he owed protection by Australia on complimentary protection grounds.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 August 2023 at 6:39pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals TribunalATTACHMENT - 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.
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Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
Natural Justice
Jurisdiction
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