1732124 (Refugee)

1732124 (Refugee) [2021] AATA 3618 (19 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1732124

COUNTRY OF REFERENCE: Libya
MEMBER:Paul Noonan
DATE:19 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 19 August 2021 at 09:39am

CATCHWORDS
REFUGEE – protection visa – Libya – political opinion – employee of the former Gaddafi regime – family member of military leaders – particular social group – returnee from the West – kidnapping – return visit to Libya – militias acting with relative impunity – deteriorating human rights and security situation in Libya – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 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 15 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Libya, applied for the visa on 17 December 2015.
The Tribunal notes that the applicant attended a protection visa interview with a delegate of the Minister for Immigration and Citizenship prior to the delegate making their decision.
The applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of reference
The Tribunal accepts, on the basis of the applicant’s passport, a copy of which is retained on the Department file, that he is a citizen of Libya and it has assessed his claims against that country.
CONSIDERATION OF CLAIMS AND EVIDENCE
Decision summary
The issue in this case is whether the applicant engages Australia’s protection obligations because he has a well-founded fear of persecution in Libya for the essential or significant reasons of his political opinion (imputed or actual) as a supporter or employee of the former Gaddafi regime, as a member of [a] tribe, as the son of a former Gaddafi army leader and as the recipient of a Gaddafi government scholarship. In the alternative, the issue is whether the applicant satisfies the requirements for a protection visa in Australia on complementary grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
The hearing
At the commencement of the hearing the Tribunal advised the applicants and their representative that it had the following documents before it:
·Written submissions of the applicant by [the applicant’s representatives], dated 4 June 2021.
·Translated appointment letter of the applicant’s father as a [rank] of the Libyan army dated [in] 1998.
·Translated Libyan [Agency 1] “Authorisation Card for carrying a weapon” in respect to of the applicant, dated [in] 2011.
·Statutory Declarations by the applicant dated 17 December 2015 and 15 June 2021 setting out his claims for protection and his personal history.
·Translated Libyan police statement, dated [in] June 2021, stating that the applicant’s [Relative A] was kidnapped in the town of [Town 1] by an armed group.
·Translated Libyan [Agency 1] statement, dated [in] December 2010, providing study leave to the applicant.
·Translated Libyan military identity card for the applicant’s father, issued [in] February 1995, identifying him as a [rank] of the [named] division of the Libyan army.
·The Department file.
·Various country information reports about Libya including those by DFAT, the UNHCR and the UK Home Office.
The applicant’s representative confirmed that the Tribunal had all the relevant material before it as submitted by the applicant.
Also, at the start of the hearing, the Tribunal confirmed with the applicant and his representative the summary of the claims for protection contained at page two of the delegate’s decision, which are that he fears returning to Libya because of his role in [a government agency] and his father’s military profile, which combine to make him a target for extremists. The Tribunal asked the applicant if this represents the entirety of his claims for protection or if there are other reasons that he also fears returning to Libya. The applicant confirmed these are the main ones. He also fears Muslim extremists because he is not religious. The applicant’s representative also noted that the applicant was a recipient of the Gaddafi scholarship and also highlighted his tribal allegiances who are imputed to be supporters of the Gaddafi regime.
The Tribunal noted the applicant swore in on the Koran. The applicant stated that he does not observe Ramadan. He was not religious back in Libya.
The Tribunal asked the applicant whether he has thought about the implications of not ever returning to Libya if he were to obtain protection in Australia. The applicant stated that he does not want to go back because of the situation over there. He has started a new life here with his girlfriend and the militia have created chaos in Libya.
The applicant confirmed that his father lives in [Town 1], about [distance] out of Benghazi and relatively close to Tripoli. Nearly all his family live in [Town 1]. They live there because, after the uprising, people who served with the army were chased out of Benghazi and they moved there for their own safety. However, they are not fully safe there. They are very restricted in their movements. He could not travel safely to [Town 1] because he fears he would be targeted by the opposition or militia because of his profile with the former Gaddafi regime.
The Tribunal asked the applicant if he came to Australia to study or if he came here because he feared harm. The applicant submitted that he left as it was not safe for him and he had already planned to study in Australia; he would study and work and not go back to Libya. The Tribunal noted that the DFAT report reflects that Gaddafi scholarships were issued both before and after Gaddafi fell. The applicant stated that his was issued before the fall of the Gaddafi regime but after he fell he sought and received an updated scholarship approval. The Tribunal asked him which authority provided this updated authorisation. The applicant submitted it was through a friend at the [named agency] issued by the transitional government that came to power immediately after the fall of Gaddafi. The Tribunal put to the applicant that this may suggest he is of no adverse interest to that government. The applicant submitted that the situation is very different now and the militias are in control and the government is weak. The Tribunal accepts this submission as reasonable in light of the country information discussed in detail later in the Reasons.
The Tribunal noted that the applicant submitted claims about his [Relative A] being kidnapped. The applicant stated this occurred on the outskirts of [Town 1]. His [Relative A] was subsequently released. He was kidnapped by an armed group from the city of Misrata. They asked for money and tried to implicate him in fighting in [Town 1] and Tripoli. In light of the country information discussed below in these reasons, which highlights a growing problem of kidnapping in Libya for ransom and other reasons, the Tribunal accepts that the applicant’s [Relative A] was kidnapped as claimed.
The Tribunal asked the applicant when his student visa and Gaddafi scholarship was first issued. The applicant stated that this happened in 2015. The Tribunal pointed out that his student visa was first issued in 2010. The applicant agreed this was the case but stated he was late in complying with some of the procedures at that time and the uprising began soon after.
The Tribunal noted that he had travelled internationally after the uprising but had returned to Libya. The applicant stated that while he did fear harm at that time he had paid money to secure his passage at the border. The Tribunal noted that it is an important consideration when a person returns to a place they claim to fear harm in. The applicant simply stated that at that time he was able to move around. The Tribunal noted that the applicant had given evidence to the Department that he had connections in the new government which enabled him to pass through border controls. The Tribunal asked the applicant how he had travelled to [Country 1]. The applicant stated that he had flown from an airport on the outskirts of Tripoli, [detail deleted]. The Tribunal notes that there has been a significant deterioration in the security situation in recent years as discussed later in these Reasons and accepts that the applicant did not hold a strong fear of harm at that time.
The Tribunal asked the applicant if he attends mosque. The applicant stated that he does not. The applicant stated that he has a Christian girlfriend from [Country 2] and he is trying to integrate into the Australian community. He is working here and making local friends. He works in [an industry] and at [a named employer] and [in another sector]. He socialises broadly. The Tribunal asked the applicant how returning to Libya would impact his life. The applicant simply stated that the government does not have control over the militia.
The Tribunal noted the applicant has been in Australia now for many years and asked him how he might be perceived in Libya due to this. The applicant stated that he will be perceived as not Muslim, he got a scholarship to the West, and also he will be asked why he had a non-Muslim girlfriend. He fears the extremist militias would harm him for these reasons.
CONSIDERATIONS
The applicant fears that non-state actors will harm him because of his imputed political opinion as having been associated with the Gaddafi regime. This is because the applicant was given support to obtain a student sponsorship by the Gaddafi regime, because of his past work for the regime and his father’s military service. It is also clear that the applicant fears harm from these same non-state actors because of his membership of a particular social group as reflected by his Westernisation, time away from Libya in a Western country (as a returnee from the West), and liberal attitudes. While the Tribunal considered the applicant’s claims with respect to his past employment and his father’s history, and the delegate’s concerns with respect to the credibility of aspects of the applicant’s evidence, and discussed these matters during the hearing, the Tribunal has found it only necessary to set out its findings with respect to the applicant’s imputed political opinion and membership of a particular social group being a returnee from the West, in conjunction with the most recent country information with respect to the situation in Libya for people returning with such a profile.
The applicant left Libya in late 2015 and the Tribunal accepts that he did so as a recipient of a Gaddafi study scholarship that was renewed by contacts that he had within the government in control of his area of residence at that time. The Tribunal accepts that the applicant enjoyed some political contacts of this type. DFAT assessed in 2018 that local and international sources consider it unlikely that a recipient of a study abroad scholarship would be targeted solely on this basis if they were to return to Libya, regardless of whether they had received the scholarship during the Gaddafi regime or afterwards. DFAT assessed that an ordinary recipient of a study abroad scholarship faces a low risk of societal or official discrimination or violence upon return to Libya for this reason.[1]
[1] DFAT Country Information Report – Libya, 14 December 2018 p.29.
Country information shows there was an interim period of civil rule. One source in November 2014 suggests that Libya saw “an explosion of civil society” after the overthrow of Gaddafi.[2]
[2] The Washington Institute for Near East Policy , Libya as a Failed State: Causes, Consequences, Options, Research Notes Number 24, November 2014, [>
However, country information is also clear that, from 2015 onwards, there has been an ongoing and steady deterioration in the overall security situation in Libya. In 2018 DFAT assessed “that those involved in political activities in Libya face a high risk of societal discrimination and violence, particularly from armed militias outside of the control of either Libyan administration. This is due to a general intolerance for diversity of opinion amongst these militias, and because they view political activities and free expression as a challenge to their authority. This treatment may include being illegally detained, beaten or tortured; having death threats made against themselves or their families; or being killed”.[3] DFAT also assessed that there is a generalised attitude of resentment towards Gaddafi supporters and fighters which is widespread throughout Libya, although it does assess that a Libyan with a low-level association with the regime would likely not face discrimination as a result of this association.[4]
[3] DFAT Country Information Report – Libya, 14 December 2018 p.25.
[4] DFAT Country Information Report – Libya, 14 December 2018 p.28.
The Tribunal considers the 2018 DFAT Country Information Report reflects a generally rising level of intolerance and risk for anyone perceived to be different, Western aligned or wealthy, or politically connected in any way especially with respect to the various militia that appear to act with relative impunity throughout Libya. More contemporaneous country information as noted below in these Reasons does not reflect that this situation has improved in any way and in fact has likely deteriorated further.
The more recent UK Home Office publications relevantly state that:[5]
2.4.21 There has not been a substantive change to the security situation since ZMM was heard in May 2017. There are not, therefore, ‘very strong grounds supported by cogent evidence to justify a departure from ZMM as per para 47 of the Court of Appeal’s determination in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012).
2.4.22 Consequently, a person returning to Libya is likely, solely because of their presence in the country, to face a real risk of being subject to a threat to their life or person and a breach of Article 15(c) of the Qualification Directive.
2.4.23 If a person does not qualify for a grant of asylum, or a grant of humanitarian protection under articles 15(a) or 15(b) of the Qualification Directive, and is not excluded from protection, they will qualify for humanitarian protection on the basis of a breach of Article 15(c) owing to the general security situation.
[5] UK Home Office, Country Policy and Information Note Libya: Security and humanitarian situation, (Ver 4.0) September 2020.
The Congressional Research Service (CRS) in its report Conflict, Transition and US policy of June 2020 stated[6]:
Libya’s political transition has been disrupted by armed non-state groups and threatened by the indecision and infighting of interim leaders. After an uprising ended the 40-plus-year rule of Muammar al Qadhafi in 2011, interim authorities proved unable to form a stable government, address security issues, reshape the country’s finances, or create a viable framework for post conflict justice and reconciliation. Insecurity spread as local armed groups competed for influence and resources. Qadhafi compounded stabilization challenges by depriving Libyans of experience in self-government, stifling civil society, and leaving state institutions weak. Militias, local leaders, and coalitions of national figures with competing foreign patrons remain the most powerful arbiters of public affairs. An atmosphere of persistent lawlessness has enabled militias, criminals, and Islamist terrorist groups to operate with impunity, while recurrent conflict has endangered civilians’ rights and safety. Issues of dispute have included governance, military command, national finances, and control of oil infrastructure.
[6] UK Home Office, Country Policy and Information Note Libya: Security and humanitarian situation, (Ver 4.0) September 2020.

Freedom House in the Freedom in the World report of 2020, covering events in 2019, stated[7]:
Libya has been racked by internal divisions and intermittent civil conflict since a popular armed uprising in 2011 deposed long time dictator Mu’ammar al-Qadhafi. International efforts to bring rival administrations together in a unity government have failed, and interference from regional powers has exacerbated the latest fighting. A proliferation of weapons and autonomous militias, flourishing criminal networks, and the presence of extremist groups have all contributed to the country’s lack of physical security. The ongoing violence has displaced hundreds of thousands of people, and human rights conditions have steadily deteriorated.
[7] UK Home Office, Country Policy and Information Note Libya: Security and humanitarian situation, (Ver 4.0) September 2020.
The US Department of State’s 2020 Country Report on Human Rights Practices[8] refers to abductions being carried out in Libya by “GNA-aligned groups, LNA-aligned groups, and other armed groups” and that “Migrants, refugees, and other foreign nationals were especially vulnerable to kidnapping”. The Report finds that in 2020:
Significant human rights issues included: arbitrary and unlawful killings by various armed groups, including some aligned with the Government of National Accord and the Libyan National Army; forced disappearances; torture perpetrated by armed groups on all sides; harsh and life-threatening conditions in prison and detention facilities, some of which were outside government control; arbitrary arrest and detention; political prisoners or detainees; unlawful interference with privacy, often by nonstate actors; serious abuses in internal conflict, including killing of civilians and the worst forms of child labor, such as the recruitment or use of children in conflict; serious restrictions on free expression and the press, including violence against journalists and criminalization of political expression; substantial interference with freedom of association; refoulement of refugees and asylum seekers; widespread corruption; lack of accountability for violence against women; trafficking in persons; threats of violence against ethnic minorities and foreigners; criminalization of same-sex sexual orientation; significant restrictions on workers’ freedom of association, including limits on collective bargaining and the right to strike; and forced labor.
[8] US Department of State 2020 Country Reports on Human Rights Practices: Libya, Libya − United States Department of State (accessed 20 July 2021).
In its September 2020 report into the position of Libya as a place of safety the UNHCR found as follows[9]:
The ongoing conflict and political impasse have reportedly led to a further deterioration of humanitarian conditions across all sectors in Libya. The conflict has also resulted in the damage to and destruction of homes, hospitals, schools, water and electricity systems, and other critical infrastructure.
In June 2020, it was estimated that over one million persons were in need of life-saving humanitarian assistance and protection, including 400,000 internally displaced Libyans and 654,000 asylum-seekers, refugees and migrants. The number of people in need has increased due to the economic effects of the COVID-19 pandemic.
[9] UNHCR – The UN Refugee Agency, September 2020 Report: Position on the designation of Libya as a safe third country. Refworld | UNHCR Position on the Designations of Libya as a Safe Third Country and as a Place of Safety for the Purpose of Disembarkation Following Rescue at Sea (accessed 20 July 2021).
Further, it found that:
Asylum-seekers, refugees and migrants, including children, are at risk of being subjected to widespread and systematic human rights violations and abuses at the hands of smugglers, traffickers, armed groups, militias and criminal gangs acting with impunity. These violations and abuses reportedly include unlawful deprivation of liberty and arbitrary detention; torture and other forms of ill-treatment; rape and other forms of sexual violence; abduction for ransom and other forms of extortion; forced labour; and unlawful killing. Women and girls, but also men and boys, are subjected to rape, forced prostitution and other forms of sexual violence.
In light of the above country information the Tribunal considers that there has been a significant decline in the security situation in Libya since the applicant’s departure. The Tribunal accepts that the applicant is a recipient of a Gaddafi scholarship that enabled him to travel to Australia where he has now resided for many years and has adopted Western attitudes and mannerisms, has a relationship with a Christian woman and does not adhere to standard Muslim practices. The Tribunal considers that, should the applicant now be required to return to Libya, there is a real risk that these factors alone will be sufficient for him to be perceived to be associated with support for the Gaddafi regime and non-supportive of local militia and extremists’ hard line doctrines because of his non-traditional or non-Islamic attitudes and his scholarship, having resided in the West for many years.
While the Tribunal has considered the 2018 DFAT Country Information Report about the low risk posed to recipients of scholarships, the Tribunal nevertheless finds that there is still a real chance of serious harm to the applicant for these reasons. This is because the country information clearly reflects that the overall security situation in Libya is dire with egregious human rights abuses and atrocities being committed by state and non-state actors of all types throughout the country. This finding is further strengthened in light of the UK government’s advice in 2020 that the generalised violence is so high that “ a returning civilian would, solely because of their presence in Libya, face a real risk of being subject to a threat to their life or person”. Further, it is clear that currently, persons with the applicant’s profile, as set out above, and as a returnee from the West are at a high risk of kidnapping by militia upon their immediate entry into the country. In this regard, the Tribunal notes the following current advice published by the Australian Government Travel Advice website Smart Traveller, current as at 13 August 2021[10]:
Violent fighting is widespread and ongoing in Libya. The security situation is very unstable. There's a high threat of terrorist attack, kidnapping and crime. Don't travel to Libya. If you stay in Libya, despite our advice, seek professional security advice. Monitor the media for possible risks.
Ongoing unrest in Libya restricts our capacity to give consular help to Australians who are there. Leave Libya if you're already there.
Areas of Libya that border with Algeria, Niger, Chad and Sudan are very dangerous. Bandits and armed tribal groups operate in these areas. There's also a very high threat of kidnapping. Avoid cross-border travel between Libya and these countries.
[10] Libya Travel Advice & Safety | Smartraveller (accessed 13 August 2021).
The Tribunal finds that this would involve serious harm to the applicant and systematic and discriminatory conduct and would amount to persecution.
The Tribunal is satisfied that the well-founded harm the applicant fears is because of his imputed political opinion as being associated with the Gaddafi regime due to his scholarship and for not supporting local militia and extremists because of his history of residing in the West and his non-traditional or non-Islamic attitudes and his status as a returnee from the West (membership of a particular social group). The Tribunal finds that the applicant’s political opinion (actual or imputed) and membership of a particular social group (returnee from the West) would be the essential and significant reasons for the persecution. Further, the Tribunal finds that the real chance of persecution relates to all areas of Libya as per s.5J(1)(c).
The Tribunal must also consider the issue of state protection under s.5J(2) and 5LA(1) and (2). The Tribunal is satisfied, in light of the country information, that that there is no non-state actor that the applicant could access protection from and further that the state does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Accordingly, his fear of persecution is well-founded.
The Tribunal must also consider whether the exception contained in s.5J(3) applies to the applicant, that is, whether he could take reasonable steps to modify his behaviour so as to avoid persecution. The Tribunal finds that the applicant’s fear of persecution is because of his imputed political opinion and personal mannerisms and attitudes and his status as a returnee civilian from the West where he has been a long-term resident. His study abroad and his long term residence in the West are respectively, in the Tribunal’s view, innate and immutable characteristics of the applicant and as such he falls within the exception to s.5J(3) set out at s.5(J)(3)(b).
Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia and as such the exception with respect to third country protection contained at s.36(3) does not apply.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Paul Noonan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3618

19 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies