1721914 (Refugee)

1721914 (Refugee) [2022] AATA 3643 (2 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721914
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Catherine Carney-Orsborn
DATE:2 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2022 at 10:47am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – father a member of the Bangladesh Nationalist Party (BNP) – credibility concerns – lack of corroborating evidence – ability to adjust to life in Bangladesh – medical condition – asthma – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was born in Australia to parents who are citizens of Bangladesh. The applicant who was born on [date] and currently holds a Bangladeshi passport and claims to be a citizen of Bangladesh, applied for the visa on 12 July 2016. The delegate refused to grant the visa on the basis that she is not a person to whom Australia has protection obligations under the Refugees Convention or Complementary Protection.
As the applicant is a minor the applicant’s father appeared before the Tribunal on 28 June 2022 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
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 issue in this case is whether or not the applicant is owed Australian protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, the applicant’s father’s statutory declaration, a certified copy of the applicant’s passport, the applicant’s parents’ passports, the applicant’s birth certificate showing she was born at [Suburb 1] NSW Australia, medical discharge summary of the applicant’s birth dated [date], referral letter in relation to the applicant dated 3 May 2016 stating follow up needed for a fracture and the marriage document of parents.
The application responds to questions about claims “see the file [number]”, the file referred to is the previous application for protection filed by the applicant’s father which included the applicant’s mother. The Tribunal has the previous application for protection file lodged by the applicant’s parents on 16 July 2013. The applicant was born on [date] and was therefore not included on her parent’s application for protection.
The applicant’s parents have since had a second child born in [year], as that child was born after the delegate’s decision the second child is not included in this current application for protection.
The Tribunal file contains a copy of the notification of refusal of protection visa, the Department’s decision record and the application form for review of refusal of protection visa.
No further documents were provided.
The applicant claims that she will face harm if returned to Bangladesh due to her father’s profile as a member of the BNP. She further claims that she will find it difficult culturally to integrate back into Bangladesh society as she has only lived in Australia and speaks English. She claims she has health problems and needs treatment in Australia.
The applicant’s father fears that he will face torture, degrading and cruel treatment because of his high-profile political involvement with the Bangladesh Nationalist Party (BNP), because of his familial connections with and financial contributions to the BNP, protests led by him in Bangladesh and because of the pending court cases filed against him in Bangladesh. He claims he continues to be involved in the BNP Australia. The applicant claims he fears that if he returned to Bangladesh, he would be subjected to serious harm by the Awami League (AL). The applicant further claims that authorities are influenced by the AL offering him no protection. He claims that the applicant would suffer due to his involvement and profile with the BNP if she is returned to Bangladesh. He claims she will suffer as revenge will be sought by his enemies against the applicant.
The hearing
The applicant’s father provided oral evidence at the hearing on behalf of the applicant.
A summary is as follows.
The Tribunal went through the process and objects of the hearing. The Tribunal explained the definition of refugee and complementary protection.
The applicant’s father indicated he had no difficulty with the interpreter. The applicant’s parents arrived in Australia in May 2013 on a Sponsored Family Visitor visa. The applicant’s parents applied to the Department for protection visas on 16 July 2013. The Department refused to grant the protection visa to the applicant’s parents on 6 December 2013.
The Tribunal asked the applicant’s father what family he has in Bangladesh. He stated that he has no family in Bangladesh. He claims he had a brother however the brother was killed [in] January 2018. In Australia he has one elder sister.
He is currently working in Australia as a [Occupation 1]. The applicant’s mother is not working.
He confirmed that he first came to Australia in May 2013. The Tribunal asked why the applicant (his daughter) cannot return to Bangladesh. The applicant’s father stated that she cannot return as she was born in Australia and he was involved in politics in Bangladesh. He stated that the situation has become a lot worse. He stated that his daughter is studying in Australia and he has so many political enemies in Bangladesh. He claims he could return and hide himself, but his family could not hide. He claims that his brother was killed by his political enemies.
He claims that if his enemies cannot find him, they will target his children. He claims the applicant will be targeted as she is his daughter, and she cannot hide from school. He claims his family will be harassed due to his political profile.
He claims that his daughter is in year [level] and she speaks English, he claims she does not speak Bengali.
The Tribunal asked him to expand on his political problems. The Tribunal asked for more details about his brother’s death. He claims that the Awami league beat his brother and poisoned him and that his brother was taken to hospital. He claims that his brother’s wife found out her husband was in hospital and went to the hospital and then informed the applicant’s parents in Australia.
He claims that the same people demanded money from him and then went to his brother. He stated that he cannot remember the date, but he was informed of these things over the phone.
He claims that he used to be harassed but the frequency increased after he came to Australia. He stated that these things happened when he was in Australia.
The Tribunal noted that in his application he stated his brother lived in India. He stated that his brother did live in India before 2001 and married there. He claims that he did not have contact with his brother when his brother was in India however, he did when he returned to Bangladesh.
The Tribunal asked what position he had in the BNP party he stated he joined in 1998. He stated he was joint organising secretary in 1999. He claims he was affiliated with Chatradal the student wing. He claims he missed his exams due to his political involvement in 2008.
The Tribunal pointed out that he has been in Australia since 2013 and asked why the Awami league would still be interested in pursuing him.
He responded that he joined the main party before the Awami league came to power. He claims that he was targeted after 2008.
The Tribunal put to him that he claims that he was targeted from 2008 to 2013 yet he was able to get exit visa’s and leave the country even though he has claimed in his application that police filed false charges against him. He responded that in Bangladesh if you bribe people you can exit the country.
The Tribunal asked how he was able to avoid those attacks from the years 2008 to 2013 in Bangladesh.
He stated that his enemies were looking for him. He claims he stayed in different places and sometimes places outside his home.
The Tribunal pointed out that in his application for protection he claims he lived at the same address and worked at the same company. He agreed he did. He then stated that he had to put that down in his application for protection.
The applicant’s father stated that in Australia has attends BNP meetings. He claims the last one was about a month ago. He stated that he mainly mixes with the Bangladesh community in Australia.
The Tribunal asked why the Awami league, and his enemies would be still looking for him nearly ten years after he left Bangladesh. It would seem they are going to a lot of trouble some time after he left.
He claims he used to go door to door and collect money and he gave money to poor people. The Tribunal asked why that would upset his enemies. He responded they would look for him to kill him.
The Tribunal discussed with the applicant’s father that the issues he describes appear to be local and asked why he could not re-locate. He responded with words to the effect that the leaders of the party’s situation is much worse then his. He states that he is below them. He claims he tried to contact the leaders but could not manage to find their phone numbers. He stated that his position is lower than the leaders and he doesn’t feel secure.
The Tribunal put to the applicant’s father that Independent Country information (DFAT Country Information Report Bangladesh 2019) indicates that if you are not a high-profile member of BNP you will not be targeted. He responded in a confused way stating words to the effect that parliamentary members are worse, but he is lower, so his position is worse than theirs, he stated that usually people involved in parties do party activity however he also helped people and did a lot of work for people. He stated that due to helping people they would vote for BNP and that is why his is targeted.
The Tribunal asked about family in Bangladesh. He responded that his wife’s family are in Bangladesh. They include her parents.
The Tribunal asked if there was anything else in relation to why his daughter cannot return to Bangladesh. He responded with words to the effect that she is studying in school and doing well. He stated that she also has asthma and using an inhaler.
He stated word to the effect that if she returns to Bangladesh she will not do so well. The Tribunal asked for more information on why she will not do so well.
He responded she will suffer due to his affiliation with the BNP.
The applicant’s mother gave oral evidence.
She confirmed she came to Australia in 2013. She has two children. She is not working. She stated that the language spoken at home is Bengali. She stated that her daughter speaks Bengali at home and then English at school.
She confirmed she has family in Bangladesh. She stated words to the effect that they live a traditional life in Australia. She wears a veil. She confirmed that the family mainly mix with the Bangladeshi community in Australia.
She stated words to the effect that if her daughter is returned to Bangladesh there will be problems. She stated that her daughter has asthma and a speech delay. She stated that her daughter is now ok. She stated words to the effect that the applicant’s father has the problems.
She stated that if they return, she does not know what will happen to them. She claims that due to the applicant’s father’s problems revenge will be taken out on the applicant.
The Tribunal asked how the applicant’s brother-in-law was killed. She responded she was not sure, and she could not remember when he died but thinks it was about four and a half years ago.
She stated words to the effect that if they return no one could protect them and most of the BNP party are in hiding.
She did not know what position her husband had in the BNP party.
The Tribunal asked if there was anything further, she wanted to add in relation to the applicant returning to Bangladesh.
She responded that her daughter has been here [substantial number of] years and she cannot adjust to the Bangladesh culture. She stated that in the schools they use Bengali. She does not want her child to face stress. She stated she wants a better future for her children.
The applicant’s father stated that he cannot collect any documents from Bangladesh as he has no help.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the criteria for ‘complementary protection.’ The Tribunal must also consider whether the applicant is a member of the same family unit of a person who has been granted a protection visa because that person is a refugee or meets complementary protection.
Country of reference
The first thing for the Tribunal to do is to establish the applicant’s country of reference for the purpose of the protection visa assessment. The applicant provided a copy of her Bangladesh passport when she applied for the protection visa. The most recent passport was issued [in] 2022 and is valid [until] 2027. Both the applicant’s parents provided copies of their Bangladesh passports. They claim Bangladesh citizenship. Accordingly, the Tribunal is satisfied that the country of reference for the protection visa application assessment is Bangladesh.
As the applicant is a minor the applicant’s father gave evidence on her behalf.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Membership of BNP
The applicant’s father claims that the applicant is at risk of harm due to him and his family being a high-profile member of the BNP. He claims he held high profile positions in the local branch, organised events, participated in elections, door knocked and was a backer of the BNP. He claims he has participated in activities in Australia and is therefore at risk of harm if returned. He claims this will impact on the applicant and she will be targeted if returned to Bangladesh.
The applicant’s father provided a detailed written statement in which he asserts he was a high-profile member of the BNP and a leader.
At hearing the applicant’s father ‘s evidence in relation to his membership of the BNP party was confused, disjointed and inconsistent. At hearing he stated that he was low level and that party leaders were at risk. When further queried he changed to state that he was at risk.
In his written statement he outlined being targeted, attacked by police, being injured so that he spent 7 days in a clinic and the police filing a case against him. In his written statement he claims these things happened between 2009 till 2011. At hearing he was unable to persuasively explain how if his attackers were so powerful and bent on revenge, he was able to continue to live in Bangladesh secure a visa to visit Australia and not suffer any further harm. When this was put to him, he stated he could move around.
At hearing the Tribunal put to the applicant’s father that this was inconsistent with his information that he continued to live and work at the same address in Bangladesh. He responded that he moved around but never changed his address.
Later it was put to the applicant that the persecution he was describing appeared to be local. He agreed it was local. The Tribunal put to him that he could re-locate within Bangladesh. He responded that the Awami league would find him and target his family. This is inconsistent with his evidence that he was able to avoid harm between 2011 until he left in 2013 as he was able to move around.
The applicant’s father claimed there were false cases against him filed by the police. However, he was able to leave Bangladesh legally. He responded that he was able to bribe someone. He could not provide any convincing explanation or details as to how he was able to do that.
The applicant’s father’s evidence changed in relation to the response he was providing to the Tribunal.

He was unable to give convincing evidence in relation to his fears for his daughter or why she would be targeted due to any political persuasion held by her father.
The applicant’s father in the application for protection stated he would provide further documents to support his claims. He provided no documents in relation to his claim that he is at risk from Awami League supporters or the authorities in Bangladesh.
The Tribunal only has the applicant’s father’s own assertions that he is at risk from harm if the applicant is returned to Bangladesh. The applicant’s father in his statement claimed he was a leader of the BNP. He further claimed he was involved in the BNP in Australia and attended monthly meetings.
The Tribunal would expect that one who claims to have such high links with the BNP in Bangladesh and Australia would have been able to provide some corroborating statements or reports.
No medical reports of the injuries he states he suffered, or his brother’s death were provided. When the Tribunal discussed the details of his brother’s death at the hands of Awami league supporters he was unable to give any basic details including the date of his brother’s death. He responded he could not remember. He stated he had no relatives in Bangladesh however his evidence is that he was informed of ongoing harassment and the death of his brother. He did not expand on who was providing this information.
At hearing he stated that he could not contact the leaders in Bangladesh as he could not find their phone numbers. Later in the hearing he stated that he could not collect documents as he had no help. The Tribunal would have expected that someone with the links the applicant’s father claims to have would have been able to access contact details of the persons he claims he was so involved with.
The Tribunal after taking the above into account including the lack of corroborating evidence, his inconsistent and confusing evidence and implausible account does not accept that the applicant’s father was or is a high-profile member of the BNP in Australia or Bangladesh.
The Tribunal finds that the applicant’s father is not a prominent or active member of the BNP either in Bangladesh or Australia. The Tribunal therefore finds that the applicant will not be at risk, on return to Bangladesh, due to any political opinion or activities undertaken by her father or that she is perceived to hold.
At hearing the applicant’s father and mother provided evidence that they did not wish to applicant (their daughter) to be returned to Bangladesh as she has been in Australia for [number] years.
She has been educated and is used to the culture in Australia. The applicant’s parents claim that she does not speak Bengali and will have trouble with the education system.
The applicant is a child of [age] years of age. Her parents’ evidence is that they speak Bengali in the home. The family mixes in Australia with the Bengali community and the Tribunal notes that the applicant’s mother was in traditional dress including the veil which she states she wears in Australia but not so much in Bangladesh. She did not give any indication why she wore it more in Australia than Bangladesh except to say that in Australia she dresses respectfully.
The applicant’s recent passport issued [in] 2022 shows the applicant in traditional dress.
The Tribunal considers that the applicant will be able to adjust to life in Bangladesh. She speaks Bengali, mixes with the Bangladesh community in Australia and adopts a traditional Bengali lifestyle. The Tribunal is satisfied that if she were to return to Bangladesh with her family, she would have the support of her family and be able to reintegrate into her family’s traditional lifestyle.
There is nothing before the Tribunal to indicate that she would be discriminated against, be denied services, or medical help in Bangladesh which is available to the general community.
The applicant’s father claimed the applicant had medical problems. The Tribunal has before it medical reports supplied with the original application for protection. Those medical reports and statements were dated 2014 and related to care the applicant received in the neonatal unit after her birth and one dated 2016 where it refers to the applicant suffering a fracture. Doctors’ reports were provided to the Department in 2017 which indicate that the applicant suffered flu symptoms and high fever.
No medical documents were provided to the Tribunal.
No medical evidence was provided to indicate that the applicant suffered any chronic or life-threatening conditions which could not be treated in Bangladesh.
At hearing the applicant’s parents indicated she suffered from Asthma however it was under control.
The Tribunal finds that the applicant will be able to return to Bangladesh and receive any treatment she requires for Asthma.
The Tribunal finds that she will not suffer any serious or significant harm related to any health condition.
The applicant’s parents stated that they wanted their children to have a better life in Australia. The Tribunal while sympathetic that the parents want their children to enjoy a higher standard of living in Australia cannot find that it meets the criteria for serious or significant harm as required by the protection and complementary legislation and criteria.
CONCLUSION
The Tribunal considered all the information and evidence that it had been provided. Ultimately, it comes to the conclusion that the applicant’s father is not a witness of truth about his claimed experiences in Bangladesh. The Tribunal is satisfied that his backstory concerning his involvement with the BNP, his participation in politics in Bangladesh, the harm he experienced in Bangladesh, any harm claimed to have been experienced by his family members, any cases filed against him by authorities in Bangladesh, his claimed reason for departing Bangladesh, and his claimed reason for not being willing to return to Bangladesh, are not claims that the Tribunal can give any weight to. The applicant’s father fabricated them to achieve a favourable migration outcome.
Further, the Tribunal comes to the conclusion that any involvement the applicant’s father may have had with the Australian branch of the BNP was of a superficial nature and his involvement with the Australian branch of the BNP will cease when he returns to Bangladesh. He will not become political in Bangladesh because his claimed involvement with the Australian branch of the BNP was not done for any reason other than lending credibility to his protection claim. There is no information to suggest that the applicant is of concern to the authorities in Bangladesh because of his involvement with the BNP in Australia.
The Tribunal is satisfied that the applicant came to Australia with no previous political involvement. He was able to depart Bangladesh because he was of no adverse interest to any person, police or group of authority. He will be of no adverse interest to anyone in Bangladesh upon his return.
After considering all the evidence before it the Tribunal is not satisfied that the applicant is at risk of harm due to her father’s claims of being a high-profile member of the BNP.
The applicant claims that she is used to the culture in Australia and will find it difficult to integrate back into society in Bangladesh. The applicant claims she has a medical condition, and it will be difficult to obtain treatment.
After considering the information and evidence above the Tribunal is not satisfied that the applicant will suffer as a member of a particular social group any serious harm or discrimination or persecution if she returns to Bangladesh. The Tribunal finds that she will be able to access any medical treatment she requires for Asthma.
The Tribunal on the evidence and information provided does not accept that the applicant will be deprived of her basic human rights for any of the reasons claimed if she returns to Bangladesh. The Tribunal is not satisfied that she is at risk of serious harm or significant harm for any of the reasons claimed if she goes to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that she will suffer serious harm for reason of her membership of a particular social group, political opinion or any other grounds under the Refugees Convention if she goes to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.

100. A person meets the complementary protection criteria 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.
101. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
102. Section 36(2)(aa) of the Act 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: MIAC v SZQRB [2013] FCAFC 33.
103. The applicant claims that she has no connection to Bangladesh as she was born on [date] in Australia. The applicant is a child. Both her parents are Bangladeshi citizens and hold Bangladesh passports. They have close family in Bangladesh. The applicant’s parent’s main language is Bengali, and they have limited English. The applicant’s parents in Australia socialise and mix within the Bangladeshi community. The Tribunal does not accept that she has no connection to the culture in Bangladesh. The Tribunal is not satisfied that there is a real risk the applicant would suffer any of the kinds of significant harm set out above due to having no connection to the culture in Bangladesh.
104. The applicant’s father claims that the applicant will suffer from a different education system and lack of knowledge of Bangladesh. He claims she will suffer from difficulties fitting in. No medical evidence was supplied in relation to any mental health issues the applicant would suffer. Nothing was provided which would indicate she would suffer from any mental distress. There is nothing before the Tribunal to indicate she will be denied an education within the Bangladeshi system.
105. The Tribunal is satisfied that the family will have supports from family members in Bangladesh. Children are adaptable and the applicant will have the support of her parents who have indicated they are committed to her care.
Refugee
106. For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Bangladesh due to her race, religion, nationality, membership of a particular social group, or political opinion.
107. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
108. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered whether the applicant meets the criteria under s.36(2)(aa).
109. For the same reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm.
110. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
111. There is no evidence that the applicant meets s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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.
…

[2022] AATA 3643

2 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction