1814352 (Refugee)

1814352 (Refugee) [2022] AATA 4522 (26 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Krishlyn Krisha Chetty
CASE NUMBER:  1814352
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Nora Lamont
DATE:26 September 2022
PLACE OF DECISION:  Brisbane
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 27 September 2022 at 7:56am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – supporter of government party and businessman given government contracts – change of government, loss of contracts and forced donations by politician of other party – kidnapping and threats – unembellished and persuasive evidence – country information – current political and economic situation – state protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 8 September 2016.
The applicant appeared before the Tribunal on 15 September 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
I have before me the following submissions and documents:[1]
·The Department files.
·The AAT folio.
·Submissions made by the applicant and his representative including photos.
·A statutory declaration of the applicant.
·DFAT Country Information for Sri Lanka including a 2022 update on the political and economic crisis.
·Evidence of recent political developments (news articles).
[1] AAT Folio & [Home affairs reference]
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
The issue in this case is whether the applicant will be harmed in Sri Lanka because of his political opinion. For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.
Based on copies of the applicant’s passport which was provided to the Department and the Tribunal, the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Sri Lanka and has assessed his claims against that country in relation to s.36(2)(a) and s. 36(2)(aa) of the Migration Act.
The applicant has split from his wife and she is no longer on this application, therefore, the Tribunal is assessing only the primary applicant.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for purposes of s.36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
Background
·14 Jan 2016 Granted a SC 600 Visitor Visa
·[Jun] 2016 Arrived in Australia on the SC 600 Visitor Visa
·08 Sep 2016 Lodged the SC 866 Protection Visa and granted a Bridging Visa A
·21 Feb 2018 Interview with the Department of Home Affairs.
·16 May 2018 The delegate refused the SC 866 Protection Visa application
The applicant is a Sri Lankan citizen and has lived in Australia since 2016. The applicant initially applied for a Visitor Visa in 2016 to visit a friend in Melbourne but following the former President Mahinda Rajapaksa’s defeat in the 2015 elections he had to cancel this trip since he faced death threats, abuse, extortion and was subject to abduction.
The applicant decided to leave Sri Lanka following his kidnapping as he did not feel safe and travelled to Australia on his Visitor Visa with his family. He is certain that if he returns to Sri Lanka, he will be persecuted and subjected to serious harm, discrimination and torture especially given the current Sri Lankan political situation and his imputed political opinion.
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.
Delegates Findings
The delegate’s findings are as follows:[2]
[2] [Home affairs reference]
The delegate accepts that:
• the applicant was involved in the [Business 1] and [Business 2] businesses in Sri Lanka.
• The applicant was held captive and released.
The delegate does not accept that:
• The applicant was a member of a high-level committee directly answering to political figures in Sri Lanka.
• The applicant’s company(s) had contracts with the Sri Lankan government.
• The applicant is at risk of harm for the reasons claimed should he return to Sri Lanka.
Claims
The applicant’s claims for protection can be summarised as follows: [3]
[3] [Home affairs reference] Applicant Statutory Declaration.
·The applicant had a [Business 2] business with his father and in 2007 he started his own [Business 1 and 3] company.
·In 2015 President Mahinda Rajapaksa lost the election and the applicant was abducted and received death threats from, [Mr A] and his henchmen.
·His family has been supporters of the Sri Lanka Freedom Party (SLFP) and provided support to them both personally and professionally.
·The applicant was [Official position] of [Organisation] in the Gampaha District and strongly supported the Sri Lankan President Rajapaksa and provided [Business 2 services] to their campaigns and loaned them vehicles and company assets. He also donated 10 Million Rupees to the campaign.
·Due to his political links, he was given government projects.
·When the President lost the election [Mr A]’s office started calling wanting the same support. He then was threatened, and he gave him some [Business 2] goods around 1 million Rupees worth.
·He was chased away form his [Official position] position with the businessman group and had government contracts taken away.
·He received a phone call from [Mr A] that he wanted 7 million Rupees and he had only given him 1 million Rupees. That Friday after he came out of a pub he was abducted and beaten. They tied his hands and took his phone. They took him to a house and told him to call his wife which he did.
·He told his wife to collect as much cash as she could and the next morning, she was able to collect another 4 million Rupees and they came to his home and collected the money from her. They gave him 2 weeks in which to get the rest of the money.
·He tried to find the money and the same men came back to his home and hit him on the head, chest and lower abdomen and kicked and pushed his wife. They threatened to kill him and abduct his daughter if he didn’t find the rest of the money. This assault led to chest pains and the applicant was admitted to the hospital.
·He and his wife and child fled to Australia. Since then, his parents have been threatened several times.
Tribunal Hearing
At the beginning of the hearing, we discussed his breakup with his wife, that he now has custody of his child on a 50-50 basis and is in a new relationship. He also told me that his parents have split up and his father is now in [Country] and his mother lives in a Western Province of Sri Lanka.
He said his father started his [Business 2] business in 1987 and that by the age of 15-16 he was [doing a job task]. He then started taking over the business. He said his first wife’s father was involved in [Business 1] and he became involved and started his own [Business 1] business in 2007. He had three machines and he used to buy and sell equipment. He didn’t do [Business 1] himself he would lease out his machines for [Business 1] projects. He had a lot of work up until 2015 when there was a change of government. He said he was bringing in around 10 to 15 million Rupees per year.
Sri Lankan Freedom Party
The applicant told me that his family had been involved with the Sri Lanka Freedom Party (SLFP) for over 50 years and his Uncle (as he called him but was a family friend) took him to get togethers and parties and it was at these get together’s and parties that he met all the politicians and started to gain contracts. He has a contract on the [Infrastructure project], roadways, marketplace, and cricket ground. I asked the applicant why he didn’t have any government contract documents and he said he didn’t think about it. He said his father sold off the [Business 2 equipment] and had his house repossessed everything was gone.
The applicant provided the Sri Lankan Freedom Party with [Business 2 services] and through political donations.
Business Group
the applicant was a member of a business group. This was separate from his political life and he explained the group was like a Lions Club where they assisted each other’s business and helped with small businesses. He became the [Official position] of the group in 2013-2014. But once the government changed hands he was no longer accepted in the group and he ended up not going to meetings. I accept that the applicant was a member of this business group, [Official position] and that his membership ended in 2015.
2015 Election and [Mr A]
The applicant said after the election in 2015 when he was no longer given government contracts, he still operated his business, he just wasn’t making millions of Rupees anymore. He was asked to go to a party at a UNP members house, but he didn’t want to attend. It was then when he received a phone call from [Mr A]. He was notorious and he didn’t want to make him mad. He went to a meeting and they told him to help them. A week later [Mr A] called him on the phone. He wanted him to donate to his “charities”.
The applicant did donate 1 million Rupees, but [Mr A] wanted more. By this time his money from government contracts was being blocked so he didn’t have the 7 million Rupees [Mr A] was demanding. He could only come up with 2 Million and [Mr A] called him again really angry on the phone threatening him to come up with the rest of the money within a month.
Kidnapping
Right after the month had passed the applicant went to the pub as he frequently did after work, and on the way back to his car he was kidnapped. They took his phone and pushed him into a car. They took him to a house and locked him in a room. They called the applicant’s wife and told her if she wanted to see her husband alive, she needed to come up with 7 million Rupees. They let him speak to his wife and he told her to gather as much money as she could. She could only come up with 4 million Rupees, so he offered them his van which was worth 3 million Rupees, but they refused. They came to his house and took the money from his wife. They let him go and told him they would be back for the rest.
The applicant couldn’t pass urine and was hospitalised for 2-3 days with chest pain. He tried to come up with the money but was unable to do so. They came to his house kicked him and his wife and threatened to take his child if he didn’t come up with the money. The applicant provided photos of his wife’s bruises, the house which had been messed up and himself in the hospital to the Tribunal. [4]
[4] AAT Folio
At this point I asked the applicant why he didn’t go to the police? He said basically [Mr A] was the police, so he wasn’t going to get any help anyway.
The applicant said he has insulted these politicians and because of his background and support of the Sri Lanka Freedom Party (SLFP) he would be unable to live safely anywhere in Sri Lanka. Please see further information on the SLFP and their union with the UNP as referenced below. [5]
[5] Sri Lanka Freedom Party - Wikipedia
I note that [Mr A] has had allegations of [criminal behaviour] made against him after the applicant had left the country:
In 2018 [Mr A] was accused of [aiding fraudulent behaviour by a third party, and other criminal behaviour][6]
[6] [Reference redacted]
Country Information
The following is from DFAT prior to the 2022 protests and collapse of the country.[7]
Sri Lanka is a democracy with a mixed parliamentary and presidential form of government. The president is directly elected for a five-year term (limited to two terms) and is the Head of State, Head of Government and Commander-in-Chief of the Armed Forces. President Rajapaksa is also the current Minister of Defence. International and domestic election observers deemed the last parliamentary election, held in 2020, to be mostly credible, although some incidents of voter intimidation were reported. DFAT Country Information Report Sri Lanka (December 2021) 13 2.30 In August 2020, the Sri Lanka People's Freedom Alliance (SLPFA), a coalition under President Gotabaya Rajapaksa (which includes his own party, the Sri Lanka People's Front (SLPP)), won a two-thirds majority in the Sri Lankan Parliament led by Prime Minister Mahinda Rajapaksa.
2.31 On 20 October 2020, the Sri Lankan Parliament endorsed the 20th Amendment to the Sri Lankan Constitution. The amendment reversed some measures introduced by the previous government, largely dismantling pro-transparency and accountability reforms in the 19th Amendment, as well as enhanced executive control over the legislature and judiciary. In January 2021, the UN High Commissioner for Human Rights expressed her concern that ‘the amendment has fundamentally eroded the independence of key commissions and institutions, including the Human Rights Commission of Sri Lanka (HRCSL), the Election Commission, the National Police Commission and the judiciary in terms of procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials.’ The amendment also allowed dual citizens to enter Parliament.
2.32 In July 2021, Basil Rajapaksa, a dual-Sri Lankan-US citizen, was sworn in as Sri Lanka’s Minister of Finance, becoming the fourth Rajapaksa brother and fifth member of the first family to enter the Cabinet. The move further consolidated the family’s control over the machinery of government. The family’s return to government has seen greater centralisation of power in the executive branch and the increased militarisation of civilian government (such as the filling of civilian positions with former military officers). Some observers have called these measures ‘democratic backsliding’; the weakening of institutions that provide democratic accountability (see Recent History).
2.33 Prime Minister Mahinda Rajapaksa’s earlier 10-year presidency (2005-2015) was also marked by allegations of democratic backsliding and accusations of corruption and human rights violations, including alleged war crimes against the Tamils, and harassment, arrest and disappearance of government critics. The current government of Gotabaya Rajapaksa has sought to retain popularity within the majority Sinhalese community by highlighting their role in the defeat of the LTTE and by promoting strong state security, particularly following the 2019 Easter Sunday terrorist attacks. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20thAmendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears. Presidential elections are next scheduled to be held in 2024. In July 2021, President Rajapaksa stated his intention to run for a second term in office.
[7] DFAT Country Information Report Sri Lanka December 2021
The following is updated information about the economic and political Crisis in Sri Lanka. [8]
[8] Country of Origin Information Services Section (COISS) Humanitarian Program Operations Branch Effective from 17 August 2022.
Sri Lanka is in the midst of an economic and political crisis. The country is unable to pay its debts and Sri Lankans face severe shortages of food, fuel and other essential goods. The crisis was caused by a number of factors, including unsustainable borrowings, ill-timed tax cuts, delays in seeking IMF assistance, impacts from COVID-19 and the war in Ukraine, and a poorly managed attempt at organic agriculture that halved harvests.
Mass protests, beginning in March 2022, put pressure on the Rajapaksa-led government and ultimately led to the removal of the Rajapaksas from government. Protestors, upset at the government’s economic mismanagement, called for the resignation of the Prime Minister and President. In May 2022, Mahinda Rajapaksa resigned from the position of Prime Minister after clashes between his supporters and anti-government protestors led to the deaths of nine people and extensive property damage across the country. Ranil Wickremesinghe, the new Prime Minister, held this position until mass protests in July 2022, which saw Gotabaya Rajapaksa flee the country and resign. Ranil Wickremesinghe was sworn in as President on 21 July 2022; the next day he appointed Dinesh Gunawardena as Prime Minister.
Economic and Political Crisis 2022 Situation summary
Political Crisis Widespread protests against the government began in late March 2022, culminating in a large scale protest in Colombo on 9 April 2022. Mass protests broke out in March 2022, following heavy shortages of food, fuel, medicines, and other essential items. 30 Protestors decried the government’s management of the economy and called for the Prime Minister and President to resign.31 After hundreds of protestors clashed with police and military outside President Rajapaksa’s private residence, the government declared a State of Emergency on 1 April 2022, lifting it four days later.
The protest movement, known as ‘Aragalaya’, the Sinhalese word for ‘struggle’, with their main slogan, ‘Go Home Gota,’ called for Gotabaya Rajapaksa’s removal from office.33 Under pressure, President Gotabaya Rajapaksa dissolved the Cabinet on 3 April 2022.34 On 9 April 2022, large-scale protests took place across the country, and protestors set up a semi-permanent protest camp in Colombo outside the residence of the President: ‘Gota Go Gama’. 3536 The protests throughout April were largely peaceful;37 however, one person was shot and killed by police, and 14 were wounded, at a protest against fuel prices in Rambukkana on 19 April 2022.
The government declared another State of Emergency on 6 May 2022. On 9 May 2022, Prime Minister Mahinda Rajapaksa resigned after supporters of the government attacked protestors, and at least nine people died in retaliatory violence. A meeting of SLPP supporters at the Prime Minister’s residence, Temple Trees, ended in violence when supporters moved into the streets and attacked protesters.40 The group set tents and vehicles on fire, and engaged in violent clashes.41 At least 50 politicians’ houses were destroyed in retaliatory violence, including properties belonging to the Rajapaksa family.42 Nine people died, and at least 200 were injured.
The government imposed an island-wide curfew and gave security forces the authority to shoot on sight anyone involved in looting or violence. A Wall Street Journal report cites a former cabinet member, Nalaka Godahewa, who said that President Gotabaya Rajapaksa screamed over the phone to the Army chief to send troops to stop the violence, but the orders were not followed. Prime Minister Mahinda Rajapaksa resigned in the afternoon of 9 May 2022. Ranil Wickremesinghe was appointed Prime Minister on 12 May 2022. The appointment as Prime Minister was the sixth time Ranil Wickremesinghe, a political veteran, had held the position.47 Ranil Wickremesinghe, a member of the centre-right United National Party (UNP), has close ties to the military and is generally considered a Rajapaksa ally.
On 9 July 2022, thousands of anti-government protestors overran the official residences of the President and Prime Minister. While protests were held throughout the country, hundreds of thousands of people came to Colombo. Many walked. While many were students, the protests reflected a broad cross-section of Sri Lankan society. Security forces fired on protestors attempting to enter the presidential compound, but later put-up minimal resistance. According to the Wall Street Journal, morale amongst troops was poor, in part because many were from rural families hit hard by the economic crisis.
Gotabaya Rajapaksa was not at the residence and was put on a warship for his protection during the protests. While the protest was largely peaceful, the personal home of Ranil Wickremesinghe was set alight, and police assaulted journalists covering the protest. In the days following, protestors opened the official residences to large, orderly crowds who toured the buildings. In mid-July 2022, President Gotabaya Rajapaksa fled the country and the parliament voted in Ranil Wickremesinghe as President. Gotabaya Rajapaksa fled Sri Lanka for Maldives in a military aircraft on 13 July 2022. When Gotabaya Rajapaksa officially resigned by email on 14 July 2022, Ranil Wickremesinghe became acting president59 and declared a State of Emergency on 18 July 2022. On 20 July 2022, Ranil Wickremesinghe won 134 out of 225 parliamentary votes and was sworn in as president on 21 July 2022.
Dinesh Gunawardena was appointed Prime Minister on 22 July 2022 and a new cabinet was sworn in. Prime Minister Gunawardena, a Rajapaksa loyalist and member of the SLPP, is a former minister and Sinhala nationalist.62 The new cabinet appointed by President Wickremesinghe was essentially the same as the old one, with the exception of the Foreign Affairs Ministry. On 22 July 2022, the government commenced a crackdown on the protest movement, arresting leaders and removing the ‘GotaGoGama’ protest camp at Galle Face Green. In the early hours of 22 July 2022, security forces broke up the protest camps in Colombo. According to Human Rights Watch, over 50 people, including lawyers and journalists, were beaten and injured. The United Nations, as well as several human rights groups, expressed concern at the arrest of protest leaders.66 Arrests included Joseph Stalin, an education union official prominent in the protest movement
CONSIDERATION OF Claims and evidence
Findings

The applicant’s evidence was persuasive and matter of fact. He did not appear to be embellishing his claims and his claims have not changed since his written claims were presented to the Department.
I accept that the applicant ran a [Business 2] with his father, that he gave [Business 2 services] and donations to the Sri Lanka Freedom Party (SLFP) when they were in power and in return his [Business 1] which he started in 2007 received government contracts. The applicant has given the Tribunal sufficient evidence that he held these businesses and his evidence about the government contracts was compelling.
I further accept that the applicant was being forced to assist the newly formed government in 2015 and that they wanted funds from him for their own political gain. I accept they kidnapped him and forced his wife to hand over money. I further accept that the applicant was unable to be able to produce sufficient funds that they wanted as they had stopped payments on his government contracts.
As we spoke about during the hearing the applicant was a member of a business group. This was separate from his political life and he explained the group was like a Lions Club where they assisted each other’s business and helped with small businesses. He became the [Official position] of the group in 2013-2014. But once the government changed hands he was no longer accepted in the group and he ended up not going to meetings. I accept that the applicant was a member of this business group, [Official position] and that his membership ended in 2015. I accept that the applicant’s professional life took a downward trend after the election in 2015.
I accept the applicant cannot return to Sri Lanka given the current bleak situation that is occurring within the country. It appears his support of the Sri Lanka Freedom Party and its association with the corruption and degradation of the country would put the applicant at risk.
I find the applicant to hold a political opinion which renders him unable to return to Sri Lanka.
Conclusion
I consider that the current country information supports the applicant’s contention that his political opinion would cause him harm if returned to Sri Lanka. The current instability and his ties to the former government combined with the crisis in the country demonstrates he is at particular risk.
In the circumstances of the applicant, I have considered that the subjective fear that he has for the future is objectively made out on the available country information. Based on the evidence before me, I consider the applicant has a real chance of serious harm arising out of his political opinion.
I find the applicant would have a real chance of serious harm upon return to Sri Lanka for his political opinion. I find the applicant has a real well-founded fear of persecution for this reason.
I have gone onto consider if the applicant will be afforded state protection upon return to Sri Lanka. I have considered the critical state of the country and given the political and economic crisis in Sri Lanka I do not believe the applicant would be afforded state protection.
I have gone onto consider if the applicant could relocate but again, given the current political and economic crisis I do not consider that there is a location within Sri Lanka where the applicant would not face the real chance of serious harm arising out of his political opinions.
I find the applicant has a real chance of serious harm arising out of his political opinion and he has a well-founded fear of persecution for this reason.
For the reasons above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
As I have found the applicant to be a refugee I have not considered the alternative provisions in s.36(2)(aa).
Decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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 4522

26 September 2022

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Immigration

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