1726816 (Refugee)

1726816 (Refugee) [2022] AATA 4742 (21 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Eva Abdel Messiah
CASE NUMBER: 1726816

COUNTRY OF REFERENCE: Lebanon
MEMBER:Nathan Goetz
DATE:21 November 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 21 November 2022 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – imputed political opinion – opposition to Hezbollah – fear of drug lords – attempted kidnappings – refusal to transport drugs – applicant refused entry into Syria – fear of killing – police informer – return visits to Lebanon – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, 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 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review by a registered migration agent 0636719.
BACKGROUND
The applicant identifies as a male citizen of Lebanon presently located in Australia. The applicant is in Australia with his wife, son and daughter.
[In] February 2010 the applicant and his wife arrived in Australia holding student visas. The applicant’s son was born in Australia on [date]. That visa was valid until 6 June 2012.
[In] September 2011 the applicant, his wife and son departed Australia. They returned to Australia [in] October 2011.
On 4 June 2012 the applicant, his wife and son applied for student visas. On 16 October 2012 the delegate refused to grant the visas. The applicants applied to the Tribunal for review of the decisions.
[In] April 2013 the applicant’s wife and son departed Australia. They returned [in] May 2013.
On 23 December 2013 the Tribunal set aside the decision and remitted the matter to the delegate for reconsideration in MRT case 1216652.
On 12 May 2014 a delegate again refused to grant the student visas. The applicants applied to the Tribunal for review of the decisions to refuse to grant the student visas.
On [date] the applicant’s daughter was born in Australia.
On 13 May 2015 the Tribunal affirmed the refusal decision in MRT case 1408605. The applicants applied to the Minister [in] June 2015 to exercise powers under s 351 of the Act to substitute the decision of the Tribunal with a more favourable decision. [In] February 2016 this request was finalised as ‘not considered by the Minister.’
On 26 March 2016 the applicant, together with his wife, son and daughter, lodged applications for protection visas. The delegate conducted interviews with the applicant’s wife on 20 April 2017 and with the applicant on 11 July 2017 to discuss the protection claims. On 25 October 2017 the delegate refused to grant the applicant, his wife, son and daughter protection visas.
On 1 November 2017 the applicant, his wife, son and daughter applied to the Tribunal for review of the decisions to refuse to grant them protection visas.
On 21 May 2021, 26 May 2021 and 28 May 2021 the applicant and his wife appeared at Tribunal hearings to give evidence and present evidence relating to the issues arising in relation to the decision under review. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
Although a single review application was made to the Tribunal in respect of the decisions to refuse to grant all four people the protection visas, the Tribunal determined it was appropriate that separate decision records be made for each person.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
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, FINDINGS AND REASONS
The Tribunal considered the contents of the protection visa application file, the contents of the review application file, as well as all the oral evidence provided in support of the applicant’s claims.
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’ The Tribunal must also consider whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
In his protection visa application form, the applicant claimed that he was born on Akkar province/state in Lebanon in [year] and that he is a citizen of that country. He did not claim to be a citizen of any other country and did not claim to hold a right to enter and reside in a third country. He attached a copy of his Republic of Lebanon passport issued [in] 2014 to his protection visa application form.
He claimed that he was married to [his wife] [in] April 2009 in Lebanon and the father of two children, [named]. The Tribunal accepts that the applicant is married and that those two children are his children.
The Tribunal is satisfied that the applicant is a citizen of Lebanon on the basis of the applicant’s passport and the fact that there is no evidence to undermine his claim that he is a citizen of Lebanon with no right to enter and reside in a third country.
Therefore, the country of reference for the purpose of the protection visa application is Lebanon.
Protection claims
The Tribunal needed to be satisfied of certain factual matters in order to make relevant findings about whether the applicant met the requirements of either s 36(2)(a), (aa) or (b) or (c) of the Act.
Claims relating to harm faced by the applicant because of ‘drug lords’
In the protection visa application form the applicant claimed that he feared harm in Lebanon because he would be ‘targeted by drug lords who have political sway from Hezbollah and the Syrian regime.’
He claimed that he would be targeted by the drug ring because in August 2005 he was working at a [business] in [a named town in] Lebanon where he was approached by a fellow worker who offered him large sums of money if the applicant agreed to deliver drugs for him. At the Tribunal hearing, the applicant said he would be able to demonstrate his proposed route to deliver the drugs. The statement detailed that the person who asked him to deliver the drugs was a Lebanese national of the Shiite faith and a member of the [Clan 1] clan. The applicant declared that he worked at that business from March 2002 until September 2005. At the delegate interview, he claimed this person was named [Mr A], and told the delegate that they lived together for a time. The applicant refused this offer and informed the local authorities of the activities of this person. This person was subsequently arrested and imprisoned.
At the Tribunal hearing, the applicant said that as a result of the applicant assisting police, [Mr A’s] gang followed him and watched him wherever he went. He said that they were following him to harm him or kill him. The applicant said that he was never harmed or kidnapped by this group, because he was ‘trying to keep away from them.’ He disclosed to the Tribunal that one time while employed at a [business 1] (his protection form indicates he was employed there between September 2005 and February 2010), [Mr A] sent a person there to look for the applicant, but the applicant pretended to be someone else and said that (the applicant’s name) was off work that day. The applicant said that after this, he ran away to his village.
The applicant claimed that this person was released from prison after a relatively short time and claimed that [Clan 1], along with Hezbollah, were able to exert influence on government to have this person released. At the delegate interview, the applicant identified the release of [Mr A] as occurring in either 2006 or 2007. The applicant claimed that after this person’s release the drug clan managed to smuggle the drugs over the border into Syria.
At the Tribunal hearing, the applicant claimed that he was travelling to Syria in 2009 when he was stopped at the border and not allowed to enter. He said that his identification was taken, and he was taken to a room where he was told that his name.
The applicant claimed that members of the [Clan 1] drug clan may kill him without legal repercussions because of their ties with Hezbollah and the Syrian regime, whom he claimed jointly run the drug trade in Lebanon. He claimed that the [Clan 1] drug clan is a powerful militia in their own right and that the Lebanese government fear approaching them or stopping their drug operations. At the Tribunal hearing, the applicant said that he realised he was not safe when he first left Lebanon in 2010, which he described as an ‘escape.’
The applicant claimed that when he and his wife returned to Lebanon in November 2011, he received threats and that there was an attempt to kidnap him while he was shopping in Tripoli. The applicant claimed that he was perused by a car through the markets while he was in the company with his brother. He described his escape as fortunate. At the Tribunal hearing, the Tribunal asked the applicant why he would return to Lebanon if his protection claims were true. The applicant said that he wanted to see his father because he was dying. He told the Tribunal that his father is still alive.
The applicant further noted that his wife and son travelled to Lebanon in 2013 to visit his wife’s ailing father but he did not travel because he feared for his life. He claimed that he did not think that his wife would be targeted but claimed that during that trip there was an attempt to kidnap her while she was sleeping in a house that the family owned in their village. The applicant claimed that his wife was able to escape the kidnappers by alerting neighbours with louds screams.
The applicant claimed that his parents continue to warn him about returning to Lebanon because agents have continued to inquire about his whereabouts and have made direct threats to his father and brother that the agents are planning to hill him about his return to Lebanon. The applicant claimed that he would be denied effective protection from law enforcement agencies based on the influence of Hezbollah and the Syrian regime. The applicant also claimed that he could not relocate within Lebanon to a safe place because Hezbollah and their Syrian agents are ‘prevalent throughout Lebanon or exert influence throughout Lebanese territories. The applicant also claimed that the [Clan 1] are powerful and armed.
The applicant also claimed that members of his family would remain vulnerable to being kidnapped or killed by the drugs lords as revenge for the applicant reporting their activities to the Lebanese authorities. At the Tribunal hearing, the applicant said that he was 90% sure that if he was to return to Lebanon his name would be on a list because his persecutors control the airport, as well as ¾ of Lebanon. He said that his persecutors kill anyone, even people who do not harm them.
At the Tribunal hearing, the applicant said that he did not claim in Australia when he arrived here in 2010 because he and his wife were on a student visa. He claimed that he hoped things would get better so he could return to Lebanon. Given the applicant returned to Lebanon and there was the claimed incident at Tripoli, the Tribunal asked the applicant why he did not claim protection in Australia after his return to Australia from Lebanon in 2011. Again, the applicant said that he did not do so because he was on a student visa.
Given the applicant’s wife and son travelled to Lebanon in 2013 (and the applicant claimed that he did not return because he feared harm) and there was an attempted kidnapping of his wife during her trip to Lebanon, the Tribunal asked why the applicant did not apply for protection in Australia upon his wife and son’s return from Lebanon. The applicant said that there was no need to apply for a protection visa because they had student visas. In response to the Tribunal’s questioning about the fact that student visas are temporary visas and that the applicant, his wife and son may be required return to Lebanon at the conclusion of studies, the applicant responded that he found out he could not return to Lebanon and queried what else he could so. The applicant told the Tribunal that he found out he could claim protection in Australia when their last visa expired.
At the Tribunal hearing, the applicant also claimed that he had been held for half an hour in 2009 by the Lebanese authorities when he tried to travel to Syria. He said that his identification document was taken, and he was taken to a room where he was questioned by Lebanese authorities because they ‘had his name.’ The applicant was told that he would be transferred to another place. The applicant asked why the authorities had his name and he was told by the guard that he did not know, but at the place where he would be transferred to, he would be told. The applicant said that he knew if he was taken to that other place he would remain there and die. The applicant told the Tribunal that he bribed the official to let him go. The applicant told the Tribunal that this event made him feel like he was a chicken ready to be slaughtered. He claimed that this event was one of the reasons he fears returning to Lebanon. Despite the applicant’s apparent difficulty leaving Lebanon to travel to Syria in 2009, his protection visa application form detailed that he was able to depart Lebanon in February 2010 legally on a validly issued passport and disclosed no difficulty departing Lebanon at the airport.
The Tribunal accepts that the applicant’s wife gave corroborative evidence to the delegate about her husband being offered ‘big money’ to transport drugs, and also accepts that she gave corroborative evidence about the attempt to travel to Syria in 2009. The Tribunal accepts that the applicant’s wife told the Tribunal about the claimed incident at the Syrian border, that there was an attempt by someone to break into the place she was staying in Lebanon during her trip in 2013. The Tribunal accepts that this evidence is corroborative of the applicant’s claims about his claimed past harm in Lebanon. However, the applicant’s wife is not an independent witness, and given the concerns that the Tribunal has about the credibility of the applicant’s claims, the Tribunal rejects the corroboration as being demonstrative of the truth of the narrative about the claimed past experiences in Lebanon.
At the Tribunal hearing, the applicant provided a report dated 17 May 2021 from [Psychologist A] who was identified as a Clinical MHSW, RC & Psychologist. The report recorded that the applicant attended the clinic that same day under a GP Mental Health Care Plan for assessment, treatment, opinion and management of psychological illness. The report detailed that the applicant reports and displays symptoms that ‘point to the existence of Severe Adjustment Disorder with mixed mood and anxiety. The report indicated that testing had been done to demonstrate that the applicant scored an ‘extremely severe range on the DASS21 (Depression Anxiety Stress Scale). The ‘relevant psychological information’ was described as the applicant’s symptoms being exacerbated and aggravated by nightmares and flashbacks of traumatic incidents from war-related issues in Lebanon. It was suggested that this caused issues with memory and concentration, and that the applicant struggles to remember facts and dates correctly.
The applicant did not claim that he had a well-founded fear of harm in Lebanon due to his mental illness, or that there was a real risk of serious harm to the applicant in Lebanon due to his mental illness. It is clear that the report was provided to suggest a medical reason to explain any potential issues that may arise if the applicant gave inconsistent evidence abouts dates or events. That Tribunal has taken the content of that report into account, but ultimately is not satisfied that any deficiencies in the applicant’s evidence is attributable to his claimed psychological issues. Instead, the Tribunal is satisfied, when considering the evidence as a whole, that the deficiencies in the applicant’s evidence is due to the fact that there is no truth to the claimed fears of harm from the ‘drug lords’. The Tribunal is comfortable making that finding for the following reasons.

First, the Tribunal struggles to accept that the applicant would not detail in his written protection visa application about what happened at the Syrian border in 2009 if that claim was true. That evidence would demonstrate that there was some truth to the applicant’s claims that [Mr A], his clan, along with Hezbollah and Syria were able to ‘influence Lebanese government and law enforcement agencies (as the applicant claimed in his written statement). It appeared that the applicant had the proof to demonstrate the basis of that belief, but he did not include it in his written protection visa application. He only raised that evidence at the delegate interview. The applicant’s response to the Tribunal’s concern about his failure to detail this significant event in his written protection statement as suggesting there was no truth to these claims was that ‘he was nervous,’ ‘frightened’ and that he did not know that it was not put in his written statement. He claimed that ‘there were things he forgot’ and that there were many questions, and he may forget things.
The Tribunal was not persuaded by that response. The applicant had the assistance of a registered migration agent to complete the protection visa application form. In that form, he detailed specific instances of harm. The Tribunal views that the applicant’s failure to detail the 2009 incident at the Syrian border as demonstrating that this incident did not occur as was fabricated in order to boost the protection claims. The Tribunal’s assessment that the fabrication of this incident as demonstrating a willingness to manufacture claims in order to be granted a protection visa. The Tribunal is satisfied, when the evidence is considered as a whole, that the applicant has done that for all the claims related to the ‘drug lords.’
The Tribunal’s assessment about the fabrication of the claims related to the ‘drug lords’ is impacted by the fact that the applicant delayed applying for protection until March 2016, despite having first arrived in Australia in February 2010. The Tribunal considered the applicant’s explanation about his reason for failing to lodge a protection visa prior to March 2016 but was not persuaded by the explanations.
To the Tribunal’s way of thinking, it is not credible to believe that the applicant would report [Mr A] to police resulting in his prosecution, imprisonment and release in either 2006 or 2007 and the applicant would not be harmed prior to his departure in Lebanon in 2010 if his claim was true (as suggested in the written statement, where no events of harm were detailed prior to the 2011 incident). Nor is it credible to believe that if the applicant experienced being sought out at the [business 1] he was working at, was fearful and ran away to his village, and had been denied the ability to leave Lebanon and enter Syrian in 2009 because his name was on a list, and was somehow able to leave Lebanon in 2010, he would not explore lodging a protection visa shortly after his arrival. The Tribunal is not persuaded that the reason the applicant did not do so because he was on a student visa and that lodging a protection visa would mean his wife would no longer be able to study. The Tribunal is satisfied that that was an explanation invented to avoid the inference that there was no truth to the protection claims. The Tribunal equally finds that this finding applicable to the fact that the applicant did not lodge a protection visa shortly after his return to Australia in 2011, nor shortly after his wife’s return to Australia in 2013.
Further, the Tribunal finds it incredible that the applicant would voluntarily return to Lebanon in 2011 if his narrative about what had occurred between his reporting of [Mr A] and his departure from Lebanon in 2010. The Tribunal does not accept that the illness about the applicant’s father would overcome his claimed fear of harm, if that claimed fear of harm was genuine. Nor does the Tribunal accept that if the applicant experienced what he claimed to have experienced upon his return to Lebanon in 2011, his wife and child would return to Lebanon in 2013 given the applicant’s claims that his family were also at risk. The Tribunal does not accept that the applicant’s wife’s father’s illness would overcome any of the claimed fear of harm if the claims were true.
The Tribunal is not satisfied that there is any truth to the claims related to the proposed recruitment of the applicant by ‘drug lords,’ the reporting by the applicant to the authorities about [Mr A], that the applicant was targeted or harmed in any way in Lebanon in connection with this claimed reporting, that the applicant’s family in Lebanon have been harmed, or threatened with harm, that the applicant or his wife were targeted or harmed during each of their return trips to Lebanon, or that the reason the applicant lodged a protection visa was because he genuinely believes he will be harmed in Lebanon. The Tribunal is satisfied that the claims concerning the ‘drug lords’ were manufactured in their entirety. The Tribunal is not satisfied that there is any truth to those claims.
Claims relating to the applicant’s fear of harm for wife and daughter in Lebanon due to their sex
In the statement accompanying the protection visa application form, the applicant raised claims that he feared for the future of his wife and daughter in Lebanon because that country was becoming increasingly religious and controlling of women. He wrote about he and his wife’s opposition to the social practise of requiring girls as young as 7 wearing head.
The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm in Lebanon due to his claimed fear about the future of his wife and daughter in Lebanon. To the extent that the applicant claims he fears future harm to his wife and child, he did not identify or particularise the claimed harm he would suffer because of this claimed fear that he has for his wife and daughter.
The Tribunal considers that the written statement raised raise claims on behalf of the applicant’s wife and daughter based on their sex but was inelegantly expressed to suggest that the applicant himself claimed to have a well-founded fear of persecution based on his fear about the future treatment of his wife and daughter in Lebanon. The claims of harm based on sex were considered by the Tribunal in each of the applicant’s wife’s and daughters protection claims. The Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm in Lebanon due to the claimed harm his wife and daughter would suffer in Lebanon for similar reasons.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Lebanon due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person to whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the 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 Lebanon, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
The applicant made findings in respect to the applicant’s wife, son and daughter in separate decision records. The Tribunal was not satisfied that the applicant’s wife, son or daughter satisfied s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Nathan Goetz
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 4742

21 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction