1802455 (Refugee)

1802455 (Refugee) [2022] AATA 4564 (3 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Emily Young
CASE NUMBER:  1802455
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Bridget Cullen
DATE:3 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first and second named applicants satisfy s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 3 November 2022 at 1.01pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – ethnicity and imputed political opinion – older brother an LTTE member now a refugee in third country – younger brother killed by army for older brother’s involvement – mother a refugee in Australia – harassment and detention – lived as refugees in India before coming to Australia by boat – claimed to have departed from Sri Lanka – returned illegal departees and failed asylum seekers – country information – credibility – generally credible witnesses – mental health and third applicant’s significant disability – two applicants no longer members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZLVZ v MIBP [2013] FCCA 1768

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 Home Affairs on 16 January 2018 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 Sri Lanka, applied for the visas on 29 September 2015. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia has protection obligations to as outlined in s 36(2)(a) and
s 36(2)(aa) of the act.
The applicants appeared before the Tribunal on 8 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicants were represented in relation to the review by Ms Emily Young from Hannan Tew Lawyers. Ms Young attended the Tribunal hearing.
The Tribunal acknowledges that the material prepared by Ms Young was filed timely and complied with the Tribunal’s Practice Directions framework, contained relevant information, included signed Statutory Declarations for the applicants, and was genuinely focussed on the issues to be determined. The Tribunal appreciates professional representation and organised materials, as this helps the Tribunal to expedite decision making processes.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants are persons to whom Australia has protection obligations to. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The first named applicant’s claim for protection can be summarised as follows:
-The applicant and his family are Tamils;
-The applicant’s older brother ([Mr A]) was a Liberation Tigers of Tamil Eelam (“LTTE”) Member, and departed Sri Lanka and now resides in [Country] as a refugee;
-The applicant’s younger brother was shot and killed by the Sri Lankan army in [Year 1] due to his older brother’s involvement with the LTTE;
-The applicant has been harassed by the Sri Lankan army, including being detained;
-He is unable to relocate in Sri Lanka as the government are the persecutors and can identify and locate him wherever he travels.
The second named applicant made her own claims; that her reason for leaving was identical to her husband, and that she had difficulties in Sri Lanka because of her marriage to her husband.
The first, second, third, and fourth-named applicants fled Sri Lanka in or around May of [Year 2]. They departed Sri Lanka from the Mannar District, Northern Province, and then stayed in [a] Refugee Camp in Tamil Nadu, India. During this time, the applicants adopted the fifth named applicant (who is the son of the first named applicant’s cousins, who could not afford his care). Since the time of the delegate’s decision, [the fifth-named applicant] has relocated to South Australia, and [the fourth-named applicant] is married with his own child and therefore no longer a dependant[1].
[1] Submissions dated 1 September 2022 at [3]; Marriage Certificate of [the fourth applicant].
The applicants found life difficult in the [Refugee Camp], due to restrictions placed upon them as refugees, yet did not feel that they could safely return home to Sri Lanka, as the first named applicant’s sister advised that she was still being questioned as to the first named applicant’s whereabouts. After nearly 3-years residing in the [Refugee Camp], the applicants, together with a group of 18 other families with the camp, pooled their funds in order to arrange a boat that would sail to Australia.
The families agreed that, on arrival to Australia, they would say that the boat had departed from Sri Lanka, rather than from India. The first-named applicant explained that the families formed this agreement for the reason that they feared that if they were truthful, their applications for protection would not be processed and they would be returned to India. The first-named applicant’s evidence, which the Tribunal accepts, is that the persons responsible for organising the boat told them that this was the case, and that they should claim to have departed from Sri Lanka.
The delegate took a dim view of the explanation given by the applicants in relation to what was, putting it bluntly, a lie by the applicants about where they had departed from. Consequentially, it appears that the delegate assessed the rest of the applicant’s evidence as unfavourable.
When applicants are untruthful to the Department, it makes it much harder for the Department to properly assess claims for protection. The risk to applicants in being untruthful is that it may cause significant delay, and it may place the rest of their credibility at risk. The Tribunal says this not to admonish the applicants, but rather to emphasise the importance of providing truthful information to the Department at all times.
Even where an applicant has been untruthful about an aspect of their claim, the Tribunal must still consider the substantive merits of the claims. The Tribunal understands that the applicants were desperate, having spent several years living under the relative hardships present in a large, refugee camp. Further, the Tribunal appreciates that the applicants believed that the information they had been provided by those they paid to transport them was correct, and were concerned that if truthful, they might not only derail their own claims, but those the other families with whom they had travelled.
The Tribunal considers the applicants to be generally credible witnesses who should be given the benefit of the doubt in view of the difficult circumstances that they faced, consistent with Federal Court authority in SZLVZ v MIBP [2013] FCCA 1768 at [58]–[60].
The Tribunal observes that the first applicant's brother, [Mr A], was granted asylum in [Country] on [Date, Year 3], as evidenced by a “Grant of Asylum” letter from the [Immigration authority] in [Country]. While the Tribunal is not privy to the assessment undertaken by the authorities in [Country], the positive assessment of refugee status lends weight to the legitimacy of the applicants’ claims. The Tribunal accepts the claims of the first and second named applicants that [Mr A] worked as a spy with the LTTE, and that they were interrogated in relation to his whereabouts and threatened with harm as described in the first-named applicant’s 1 September 2022 statutory declaration.
Further, the Tribunal considers that it is plausible that, despite [Mr A]’s having left Sri Lanka in about [Year 2], that the applicants would have been questioned as to his whereabouts in the period claimed (from mid-[Year 3] until departure in 2008). This timeframe includes the period of the Sri Lankan civil war that ended in 2009.
Further, the first applicant's mother ([Ms B]) was granted a Protection (Subclass 866) visa in Australia on 4 March 2013. Again, the Tribunal is not privy to the assessment of those claims by the Department but considers that they lend weight to the Applicant’s broad claims in relation to the threats that he and his family faced in Sri Lanka because of their status as Tamils, and because of his brother’s involvement with the LTTE.
Having considered the information outlined in the first and second applicant’s statutory declarations, as well as the oral evidence given by each to the Tribunal, the Tribunal accepts the following:
·The applicants are Tamils from a former LTTE- controlled area in [Town] (Jaffna District, Northern Province; Sri Lanka);
·The first named applicant’s brother, [Mr A], was a member of the Liberation Tigers of Tamil Eelam;
·The applicant’s younger brother was shot and killed by the Sri Lankan Army in [Year 1];
·That the first-named applicant had been questioned by members of the Eelam People’s Democratic Party, which supported the Sri Lankan Army;
·That the first named applicant was detailed in [Year 4] and again in February of [Year 5], and that his detention was most likely linked to his brother’s service in the LTTE.
The applicants assert that they have a well-founded fear of persecution were they to return to Sri Lanka on the basis of:
·their race (Tamil);
·their imputed political association with the LTTE as Tamils from a former LTTE-controlled area ([Town]);
·status as failed asylum seekers/forced returnees; and
·membership of a particular social group as persons with mental health issues, and in the case of the third applicant, a [significant disability] that necessitates a high level of personal care including showering, dressing, and toileting. The third applicant has delayed development, decreased cognitive abilities, cardiovascular abnormalities, and unique facial features as a consequence of having [the disability].
The most recent DFAT Country Information Report for Sri Lanka, published 23 December 2021, provides the following relevant information:
Tamils
According to the most recent census (2012), Tamils are the second largest ethnic group in Sri Lanka (15.3 per cent of the population). Tamil political parties are active, with the largest coalition of parties operating under the umbrella of the Tamil National Alliance (TNA). In the 2020 parliamentary elections, the TNA won 10 seats (of a total 225) during the landslide victory of President Rajapaksa’s Sri Lanka People's Freedom Alliance (SLPFA). There are two Tamil parties in the Government’s ruling SLPFA coalition: the Tamil Makkal Viduthalai Pulikal (TMVP) (formerly known as the Karuna group), and the Eelam People's Democratic Party (EPDP), which have a combined total of three seats in the Sri Lankan Parliament. There is one Tamil cabinet minister as of November 2021: Minister for Fisheries, Douglas Devananda of the EPDP. This represents a decline in political influence for Tamils from the previous Sirisena Government.
Some members of the Tamil community report discrimination in employment, particularly in relation to government jobs, though other sources suggest this is because many Tamils speak neither Sinhala nor English. Even the Tamil-dominated north and east have relatively few Tamil public servants. Despite government incentives, the number of Tamil-speaking police officers and military personnel in the north and east remains small, and monolingual Tamil speakers can have difficulty communicating with authorities. In April 2021, Sri Lanka Police announced plans to recruit 2,000 Tamil speakers for the north and east, given that very few of the mostly Sinhalese officers (with around 700 police officers working in the Northern Province and 1,100 in the Eastern Province) speak fluent Tamil. All police basic training is reportedly conducted in Sinhala limiting accessibility to most Tamils.
DFAT assesses there is no official discrimination on the basis of ethnicity in public sector employment. Rather, Tamils’ under-representation is largely the result of language constraints and disrupted education because of the war.
DFAT is aware that some Sinhalese from the south have resettled in the north and east with government assistance in the post-war period. Local sources in the north expressed concern about the construction of Buddhist statues and temples in non-Buddhist populated areas. DFAT is unable to verify claims that Sinhalese settlers in the north and east have received preferential treatment to establish businesses.
Monitoring, harassment, arrest and detention
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested or detained by security forces during the war. While LTTE members and supporters were almost all Tamil, security forces also imputed LTTE support based on ethnicity, and emergency regulations were, at times, applied in a discriminatory manner.
Members of the Tamil community and NGOs report that authorities continue to monitor public gatherings and protests in the north and east, and practise targeted surveillance and questioning of individuals and groups. Security forces are most likely to monitor people associated with politically-sensitive issues, including those related to the war, such as missing persons, land release and memorialisation events..
Communities in the north and east report that monitoring is undertaken by military intelligence and the Police Criminal Investigation Department, though in many cases officers dress in plain clothes and do not identify themselves. According to local sources, those participating in public gatherings and protests are often photographed. In the east, local informants within the community (including neighbours and business owners) reportedly undertake monitoring on behalf of the authorities. Intelligence agencies also monitor links to foreign groups, including some in the Tamil diaspora.
LTTE cemeteries in the north and east were destroyed by government forces during and after the war. Some have subsequently been restored. It is illegal to commemorate the birthday of LTTE leader Prabhakaran (26 November), or Maaveerar Naal (‘Great Heroes’ Day’ in Tamil, 27 November), although some Tamils are known to defy this ban. The public display of LTTE symbols, including the LTTE flag and images of Prabhakaran, is also banned.
Tamils have been arrested in 2021 under the Prevention of Terrorism Act (PTA) for commemoration of the war (see Prevention of Terrorism Act). In May 2021, on the eve of commemoration of the end of the civil war in Mullaithivu district, the location at which various estimates suggest up to 40,000 civilians died in the closing phase of the war, authorities placed the district under strict COVID-19 quarantine isolation. According to local sources, Tamils who tried to commemorate the day were harassed or arrested by police. For example, 10 Tamils including two women were detained from 19 May 2021 until at least late July for holding a socially-distanced candle-lit vigil on a beach in Batticaloa, Eastern Province. On 19 May 2021, the Government of Sri Lanka, including President Rajapkasa, celebrated the same occasion as War Heroes Day.
DFAT assesses that surveillance of Tamils in the north and east continues, with particular surveillance of those associated with politically-sensitive issues. DFAT also assesses that physical violence against those being monitored is not common, and that ordinary Tamils living in the north and east of Sri Lanka are at low risk of official harassment.
Political Opinion (Actual or imputed)
Sri Lanka has held regular democratic elections since independence. Large-scale violence and vote rigging have never been features of elections, but nor have elections always been described as entirely free and fair. DFAT assesses that political parties are able to operate freely across Sri Lanka and contest elections. There are no constitutional, legal or other restrictions preventing minorities from participating in politics. Sri Lanka has a diverse political landscape, with 70 registered political parties representing ethnic, religious and ideological interests. Political representation in parliament of each ethnicity is broadly proportional to the ethnic make-up of the overall population. The current parliament includes 27 Tamils and 19 Muslims among its 225 members. There is a single Muslim and Tamil respectively in the current cabinet, with another two Tamil state ministers.
Liberation Tigers of Tamil Eelam (LTTE)
At its peak in 2004, the LTTE had an armed force of approximately 18,000 combatants. The LTTE was proscribed as a terrorist organisation by a number of countries, including Australia. It was supported by foreign funding, primarily from the Tamil diaspora, and both voluntary and forced recruitment of Tamils. Funding from the Tamil diaspora was sometimes attained through means of intimidation and coercion, including threats against local family members and kidnapping for ransom. Within Tamil Eelam, the LTTE imposed its authority in a brutal fashion, reportedly murdering Tamil rivals and critics.
Towards the end of the war, in 2009, government security forces arrested and detained a large number of LTTE members. Most were sent to government-run rehabilitation centres. A smaller number were prosecuted through Sri Lanka’s court system. Security forces also questioned or monitored many civilians for possible LTTE activity, and for civil resistance or anti-government sentiment. Although not officially mandated, in many areas the military took a visible and active role in civilian life. The previous Sirisena Government publicly committed to reducing military involvement in civilian activities, but observers have expressed concern that this has reversed and the military’s role is growing again.
While the LTTE was comprehensively defeated, Sri Lankan authorities remain concerned over its potential re-emergence, and to separatist tendencies in general. Sources report that Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active. ‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
Former LTTE members face no legal barriers to participating in public life, including politics. In the August 2015 parliamentary elections, the TNA did not allow ex-LTTE members to run on their ticket, but ex‑combatants established the Crusaders for Democracy party and ran for election. While the party did not win any seats, its participation demonstrated the relative openness of the electoral process. The party did not contest the 2020 parliamentary elections.
The LTTE has not carried out any attacks since 2009; however, individuals linked to the LTTE have been involved in what are alleged to be thwarted attacks. DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

Since the delegate’s decision in January of 2018, and since publication of the DFAT Country Information Report extracted above in December of 2021, political tumult in Sri Lanka has worsened very significantly.
The Applicants’ representative has outlined the current state of affairs
A September 2021 report by the International Trust and Justice Project also found that there was an increase in incidents of torture of political prisoners under the Rajapaksa government. This report documents cases of abuse against Tamils, including cases of individuals being accused of being former LTTE members, despite most of them being children when the war ended in 2009.[2] This report also indicates that the victim profile of this new era of ‘political prisoners’ is no longer high profile human rights activists or high-ranking LTTE officials, but instead regular Tamils,[3] which is reminiscent of the former Mahinda Rajapaksa government.
Mahinda Rajapaksa resigned from his role as Prime Minister in May 2022, and Gotabaya Rajapaksa from his position as President in July 2022. However, the swearing in of Ranil Wickremesinghe as President and Dinesh Gunawardena as Prime Minster – both of whom are considered allies of the Rajapaksa family[4] – in July 2022 suggests that very little progress can be expected with regards to facilitating reconciliation, advancing human rights, or addressing the grievances of the Tamil community under this new leadership. This is particularly likely to be the case in the face of Sri Lanka’s ongoing economic crisis.
[2] International Trust and Justice Project, Sri Lanka: Torture & Sexual Violence by Security Forces 2020-21, September 2021, page 29, available at accessed by the Tribunal on 1 November 2022.
[3] Ibid at page 4.
[4]Saif Khalid and Rathindra Kuruwita, Sri Lanka’s new president (21 July 2022) Al Jazeera
DFAT Country Information provides the following information relevant to the applicants’ circumstances were they to return to Sri Lanka:
DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood. Those Tamils living abroad with links to the LTTE are unlikely to return to Sri Lanka voluntarily.
Family members of LTTE
The Sri Lankan Government acknowledges that former LTTE members and their families may continue to face discrimination both within their communities and from government officials. DFAT cannot verify claims that people have been arrested and detained because of their family connections with former LTTE members, but understands that close relatives of high-profile former LTTE members who are wanted by Sri Lankan authorities may be subject to monitoring. The ITJP, based on interviews with Tamils who have fled the country and are resident overseas, states that family members of former or suspected former LTTE cadres have been subject to harassment and detention.
Further, the DFAT Report indicates that:
Local sources in the north characterised former LTTE members as the most vulnerable and neglected segment of the Tamil population. Former LTTE members face ongoing challenges reintegrating fully into society.
The Tribunal accepts that the first named applicant, via his relationship with older brother who has successfully sought asylum in [Country], is imputed to be a supporter of the LTTE. Even if the Tribunal did not accept the first named applicant’s claims about his older brother’s involvement with the LTTE, the Tribunal considers that the first named applicant’s profile would likely pose difficulty for him were he to now return to Sri Lanka.
The first named applicant has now been away from Sri Lanka for some 14-years – for 11 of these years he has resided in Australia; and for the years prior, in Tamil Nadu, India. It is widely known that there is a large Tamil diaspora located in Tamil Nadu. The applicant last resided in Sri Lanka’s Tamil populated Northern Province and would be returning to Sri Lanka without any travel documents.
Taking into account the country information and other evidence, the Tribunal considers that it is possible that if the first named applicant is questioned and charged on his return to Sri Lanka as an illegal departee, the relevant authorities may further investigate his LTTE background and discover that his older brother was an active member of the LTTE who worked as a spy and has obtained asylum in [Country]. The first named applicant has a well-founded fear of persecution on the basis of his Tamil race and imputed political association with the LTTE were he to return to Sri Lanka. As the first named applicant’s wife of some [Number] years, the Tribunal considers that the second named applicant is similarly situated, and also has a well-founded fear of persecution on the basis of her Tamil race and imputed political association with the LTTE were she to return to Sri Lanka together with her husband.
For the reasons given above the Tribunal is satisfied that the first and second named applicants are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the third, fourth and fifth applicants are person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first and second named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first and second named applicants satisfy s 36(2)(a); and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Bridget Cullen
Senior 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.
…

< accessed by the Tribunal on 1 November 2022.

[2022] AATA 4564

3 November 2022

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Immigration

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