1723509 (Refugee)

1723509 (Refugee) [2023] AATA 2546 (9 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723509
COUNTRY OF REFERENCE:                   Colombia
MEMBER:Melissa McAdam
DATE:9 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 May 2023 at 10:43am
CATCHWORDS
REFUGEE – protection visa – Colombia – primary applicant wife/mother deceased – secondary applicants husband/father and children – mother approached by criminals/armed insurgents to sell drugs in public park – general economic, security and social conditions – country information – mother threatened but not father or children – elapse of time – father’s second marriage to Australian citizen and possibility of applying for partner visa – children’s education and significant social connections – delay in constituting review – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (b), (c), (2B), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Colombia, applied for the visas on 16 March 2015.
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.
Protection visa application
The first named applicant is the father of the other two applicants. He was born in [Year]. [The second named applicant] was born in [Year] and [the third named applicant] was born in [Year]. [Ms A], the first named applicant’s wife and the mother of the other two applicants, was the primary applicant but is unfortunately now deceased.
The applicants came to Australia on Visitor visas [in] January 2015. They provided copies of their Colombian passports.
The first named applicant’s wife made the protection claims in their Protection visa application. The following is a summary of the claims and information she provided in the Protection visa application:
a.She worked at an independent [outlet] in [Location] in her home town of Cali Valle in Colombia.
b.She ran the outlet for [Number] years from [Year]. She was a very well known sales woman amongst the people living near the park.
c.From 2012 unusual people began walking around the park. By the end of 2013 more strangers were arriving in the park. She saw more movements, including sellers and buyers of all ages and social status.
d.In the middle of 2014 a man offered to involve her in the business of distributing stupefacients for a number of people working in the area. She told him she was not interested. At the beginning of October 2014 a well-dressed man told her to work for him as a supplier and distributor of drugs. She said no and he attempted to persuade her by offering large sums of money but she still said no.
e.At the end of October 2014 a stranger came to her saying that if she refused a new offer his boss would take action against her and may even send anonymous information to prejudice her future with law enforcement authorities.
f.She communicated these incidents to her husband and he mentioned them to her sister-in-law’s husband [Mr B]. [Mr B] told her husband that he was experiencing similar threats and was planning to travel with his wife to Australia as soon as possible.
g.She and her husband then began to think to do the same. They contacted her husband’s brother who is in Australia who helped them apply for a Tourist visa. They were granted a Tourist visa in December 2014.
h.She is concerned that the illegal gang will jeopardise her reputation and her family’s safety. When members of the public don’t cooperate with extremist armed groups the groups take action against family members by kidnapping the children to fight against the government. She fears her two children will be kidnapped by FARC members. As far as she knows FARC are the group managing the illegal distribution chain in the [Location] area.
i.It was not appropriate for her to contact the authorities because FARC would then take action against her and her children. FARC have infiltrated almost every government entity in the country.
j.She and her family did not try to move to another part of Colombia because wherever you go there are cells of FARC acting as informants and investigating new arrivals.
With the application the applicants submitted copies of the following documents:
-    The first named applicant and his wife’s Marriage Certificate.
-    The first named applicant’s wife’s school records.
-    The third named applicant’s Colombian ID Card.
-    The third named applicant’s Birth Certificate.
-    The third named applicant’s school records.
-    The second named applicant’s Colombian ID Card.
-    The second named applicant’s Birth Certificate.
-    The second named applicant’s school records.
-    The first named applicant’s Colombian ID Card.
-    The first named applicant’s school records.
-    Media reports about cocaine distribution in Colombia.
Departmental Interview, 13 April 2017
The following is a summary of the information provided by the first named applicant’s wife in the Department interview:
a.She was born in [Town]. She lived in Cali with her husband and two sons.
b.Two of her brothers-in-law live in Australia.
c.She left her belongings in Colombia. Some she gave away and some she sold.
d.She is in contact with her parents in [Town]. They are fine. It is [Number] minutes by bus from Cali.
e.Her husband works and she does casual work in Australia.
f.Her parents receive a pension in Colombia.
g.She left Colombia because she received threats. A man approached her and said he was the boss of a group FARC. This was in Cali in about October 2014. She was selling [Products] in a park everyday. One day she was approached and it was proposed that she sell drugs. She said no. Then a man approached her and said he was the boss. He offered her money to join his group as a drug distributor. She said no and a third person approached her and said if she refused again there would be threat to her life and her children. Everything happened in October.
h.After the third man approached her she and her husband were very worried and told her sister-in-law. Her sister-in-law’s husband mentioned they were coming to Australia. She and her husband took the same decision.
i.She was well-known in the district so this may be why she was approached. Also she was a street salesperson so had a lot of clients. She’d been selling in the park for [Number] years. Another lady also sold in the park. There were shops and schools around. She worked 9 am to 1pm. She had a licence to sell [Products].
j.She didn’t think of moving to another part of the country as she would have to start again and also FARC were everywhere in the country.
k.They did not think of moving to another South American country as they didn’t know anyone in another South American country.
l.She did not apply for protection in 2015 because the tourist visa was easier to get. After they arrived they wanted protection for their children. They arrived in January 2015 and applied for protection in March 2015, just a few months after their arrival. A gentleman in the city helped them to apply for the visa.
m.If they return to Colombia she fears reprisals to herself, her children and her husband. The authorities in Colombia won’t protect them. In Colombia she did not let her children go out because she feared someone would take them away. She thinks they will still take reprisals after two years because she rejected them.
n.Her husband worked in [Work sector 1] in Colombo. He worked with [Products]. He resigned from his job when they decided to come to Australia.
o.They made an immediate decision to leave Colombia. They called her brother-in-law here and asked him about it and he helped them.
p.They declared their work and savings in the Visitor visa application. They requested the visa in November and it was granted in December.
Delegate’s Decision
The Delegate’s decision was not clear as to the reasoning applied. The delegate appeared to have found the then primary applicant’s claims credible but also that she was not satisfied the applicant had been threatened. The delegate considered at the time that the threat from FARC “had been neutralised” so that the agents of harm against the applicant were criminal elements. The delegate accepted that the police were under-resourced in Colombia and that the government was taking efforts against police corruption, but did not accept the applicants would be treated differently by the police so that she would not be exclusively targeted by them. She found that the situation in Colombia did not indicate “systemic persecution of the applicant.”
Information to the Tribunal
On 30 May 2019 the applicants informed the Tribunal that the first named applicant’s wife had died in Australia on [Date]. They submitted a copy of her NSW Death Certificate.
On 20 January 2020 the applicant submitted psychological reports regarding each of the applicants from [Mr C], Psychologist, regarding grief counselling following the death of the first named applicant’s wife and the first named applicant’s desire to live in a safe environment for himself and his sons.
Tribunal Hearing, 14 March 2023
The applicants appeared before the Tribunal on 14 March 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicants at the hearing:
a.The first named applicant worked for [a multinational corporation] in Colombia, as [an Occupation]. In Australia he works in [Work sector 2]. He has an uncle and [aunts] who still live in Colombia.
b.His son [the second applicant] has just graduated from high school and [the third applicant] is in his [Number] year of school.
c.The Tribunal asked the applicant what he fears now in Colombia. He responded that the illegal groups still exist and work closely with police. So there is a risk his children will be exposed to the danger. They would be exposed to any consequences if they say no to selling drugs. The Tribunal asked why they would be asked to sell drugs. The applicant responded probably not to sell drugs but they would be threatened and their life threatened. In reality the threat has always been there for the entire family as his wife did not comply with what she was asked. So the threat persists.
d.The Tribunal put to the applicant that the [stall] no longer operates so there should no longer be a threat. He responded that because the groups were very active in their neighbourhood the illegal cells controlled everything and they knew where the family are so if they go back to Colombia the groups will know. They operate at a national level.
e.He did not experience any threats when he lived in Colombia, only his wife did.
f.The Tribunal put to the applicant that this was over 8 years ago. He responded that the reality is that these people are still there and did not demobilise and they continue to operate. When he and his family arrived in Australia they had a legitimate concern the family was in danger.
g.The Tribunal asked the applicant if there was any other reason to fear harm in Colombia. He responded yes there is a lot of insecurity, you cannot go into the street as you can be robbed, or killed just for your cell phone. If you walk in the street you have to be very wary of everything as people are robbed and mugged all the time. If you have no money they will not hesitate to stab you. It is like this in Cali. It is the same in Bogota.
h.Not being able to go back to Colombia with his wife will be a very hard transition for him. They no longer have a home in Colombia as they were renting when they lived there. It will be difficult for the first named applicant to find a job in Colombia because of his age.
i.He remarried one year ago. His new wife is an Australian citizen. His sons are living with his brother because he and his wife live in an apartment which is too small for everyone. They are trying to find a bigger place. His sons still depend upon him.
j.The second named applicant fears returning to Colombia because of what he sees on the news. It is very difficult for the youth in Colombia. Illegal groups recruit young people. It will be difficult for him to return because all his life is here in Australia. His friends, girlfriend and family are all here. He wants a stable life and to be safe. It is basically the insecurity and bad economy in Colombia that makes him not want to return there. It is significant for him to remain in Australia because this is where his mother passed away.
k.The third named applicant does not want to return to Colombia. His friends are in Australia. He likes the lifestyle here. It will not be good to return to Colombia as there is a better quality of life in Australia.
Country Information
The 2023 Human Rights Watch World Report entry for Colombia contains the following:
Abuses by armed groups, limited access to justice, and high levels of poverty, especially among Indigenous and Afro-descendant communities, remain serious human rights concerns in Colombia.
The 2016 peace accord between the Revolutionary Armed Forces of Colombia (FARC) and the government ended a five-decade-long conflict and brought an initial decline in violence. But violence took new forms and abuses by armed groups increased in many remote areas in later years, reaching similar levels in 2022 to those that existed immediately before the peace process.
Human rights defenders, journalists, demobilized FARC fighters, Indigenous and Afro-descendant leaders, and other activists face pervasive death threats and violence.
President Gustavo Petro took office in August and Francia Marquez, an environmental leader, became Colombia’s first Afro-Colombian vice president. The new government vowed to fight climate change, implement the 2016 peace accord, and prioritize a “total peace” policy that would seek an accord with the National Liberation Army (ELN) guerrillas and the negotiated disarmament of other armed groups, including criminal gangs.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants submitted their Colombian passports. On the basis of these documents and their oral evidence the Tribunal is satisfied they are citizens of Colombia. The Tribunal assesses the applicants’ claims against Colombia as their country of nationality and receiving country.
Credibility
The applicants’ wife and mother presented her claims regarding incidents in the Cali park where she worked in a reasonably consistent and detailed manner. She was able to provide plausible context and further explanations during her department interview. Her claims of being pressured by criminal gangs linked to terrorist groups to sell illegal drugs for them is consistent with available country information. The Tribunal therefore accepts her claims she ran a [kiosk] in a large public park in Cali where she was pressured and threatened to sell drugs for a criminal gang.
Fear of Harm in Colombia
The applicants claim to fear harm in Colombia as a result of [Ms A]’s experiences there. They also expressed concerns returning to Colombia because of general terrorist and criminal activity and the poor economic situation in Colombia.
Threats to [Ms A]
The Tribunal has accepted that while working at a [stall] in a Cali park [Ms A] received requests and threats to distribute illegal drugs for a gang.
However none of the applicants themselves were exposed to any threats or pressure from criminals or terrorists. They did not come into contact with any of the criminals or terrorists threatening [Ms A]. Further, the incidents occurred over eight years ago, the applicants have remained overseas since that time, and the kiosk has not been operated by [Ms A] since that time. Therefore there is no reason why the gangs would now have any interest in the applicants or any reason to even notice their return to Colombia.

On the information before it the Tribunal is not satisfied there is a real chance that criminals or terrorists would have any interest in the applicants if they return to Colombia. The Tribunal is therefore not satisfied there is a real chance they will face harm in Colombia because of the former threats against [Ms A].
General Insecurity and poor economy in Colombia
The Tribunal accepts that terrorists and criminals continue to operate in Colombia, despite the government’s efforts to combat their operations. However there is nothing about the profiles of any of the applicants which might cause them to attract the adverse attention of gangs in Colombia. The applicants have raised a claim that the second named applicant and third named applicant will be recruited into gangs because they are youths. However they were not able to present any reasons why the second named applicant and third named applicant would themselves encounter this threat beyond the circumstances of their age. There was no indication that any other aspects of their profile or situation would expose them to a real chance of recruitment. The Tribunal is not satisfied that just being a youth in Colombia results in a real chance of recruitment into a criminal or terrorist group. The Tribunal is therefore not satisfied there is a real chance, now or in the reasonably foreseeable future, that the second named applicant or third named applicant would be forcibly recruited into a criminal or terrorist gang.
The insecurity in Colombia entails risks that are faced by the population generally. There is no indication before the Tribunal that any of the applicants would encounter harm from a person, group or gang because of any personal aspects of their profiles. The Tribunal finds that the harm arising from the general insecurity in Colombia is not for a reason set out in the s 5J(1)(a) definition of persecution. Further, the Tribunal is satisfied that the risk from terrorists and criminals in Colombia is faced by the population generally and not the applicants personally. Therefore it is taken not to be a real risk of significant harm, as per s 36(2)(B) of the Act. The Tribunal is not satisfied that the general insecurity in Colombia gives rise to a real chance of persecution or significant harm in Colombia.
The Tribunal accepts that Colombia has a poor economy. The poor economy may create financial difficulties for the applicants but they would not experience these difficulties for a reason set out in s 5J(1)(a) of the Act. Further, the difficulties would not be a result of an intentional act on the government’s, or anyone’s, part. The Tribunal is therefore not satisfied that difficulties caused by the poor economy in Colombia give rise to a real chance of persecution or significant harm in Colombia.
Conclusion
For the reasons given above the Tribunal is not satisfied any of the applicants have a well-founded fear of persecution in Colombia as defined by s.5J of the Act. The Tribunal is also not satisfied there is a real risk any of the applicants will be subjected to significant harm in Colombia.
The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
Ministerial Consideration
Having regard to the applicant’s circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
Pursuant to the Ministerial Guidelines, cases which have compassionate circumstances regarding the age of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person, may be brought to the Minister’s attention. The second and third named applicants are teenage boys who have been in Australia now for eight years. They tragically lost their mother while in Australia. They have formed significant connections with other relatives and with friends in Australia. Returning to Colombia after such a long time, without their mother, and without an established home or financial security there, may result in serious ongoing and irreversible harm and continuing hardship to them.
The Tribunal also notes that the applicants’ review application was lodged in 2017 yet it was not constituted until late 2022. There has been a five year delay determining the review application. The delay was in no way the fault of the applicants. If the review application had been finalised while the applicants’ wife and mother was still alive it is possible that, as the primary applicant, she may have been found to be a person in respect of whom Australia owed protection obligations. This would have resulted in the applicants obtaining protection visas, and thereby permanent residence in Australia, as members of her family.
Further the first named applicant has married an Australian citizen in Australia. It may be that he will be able to lodge a Partner visa application to be able to remain in Australia with his wife. If this is not possible then, pursuant to the Ministerial Guidelines, compassionate circumstances arise due to the hardship to an Australian citizen, namely his wife, if he was to have to depart Australia.
The Tribunal therefore respectfully recommends this matter be bought to the Minister’s attention, for consideration of his discretionary power under s 417 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Melissa McAdam
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.
…

[2023] AATA 2546

9 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction