1821732 (Refugee)

1821732 (Refugee) [2022] AATA 2847 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Leske
CASE NUMBER:  1821732
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Bridget Cullen
DATE:30 June 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 30 June 2022 at 2.30pm
CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – imputed political opinion – supporter of Oromo Liberation Front – race – Oromo ethnicity – particular social group – able-bodied Oromo Man at risk of recruitment by the Ethiopian Army or other armed groups – conscientious objector who does not believe that military or armed conflict is the solution to conflict – detention of applicant’s family members – state protection not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 July 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 Ethiopia, applied for the visa on 7 July 2015. The delegate refused to grant the visa on the basis that the applicant was not someone that Australia had protection obligations to, either as a refugee or under the complementary protection criteria.
The applicant appeared before the Tribunal on 29 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing, and made helpful submissions, directed to the relevant criteria. The applicant’s representative also provided the Tribunal with paginated and paragraph numbered legal submissions. The Tribunal appreciates compliance with its Practice Direction in this respect, as it facilitates the Tribunal understanding the applicant’s case comprehensively and expeditiously.
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 applicant is a person in respect of whom Australia has protection obligations to. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s claims before the delegate were as follows:
·The applicant was born in the Oromia region of Ethiopia. His father was a prominent member of the community. The applicant studied for a [qualification] between October 2002 and January 2004. His brother, who resides in Australia paid his tuition fees. He further studied a [degree] in Addis Ababa from February 2004 to June 2006. Whilst studying at Addis Ababa, in 2005, during the elections, university students protested against government voter fraud. The applicant claims he was beaten with a police stick and witnessed other students being pushed down with batons and rifle butts.
·The applicant claims he was arrested and taken to a temporary prison where he was locked up for more than three weeks under harsh conditions without court order or visitation rights from family or friends. He was kept in unsanitary conditions, left without food and water and humiliated during his incarceration. He was released when a cousin was able to trace the applicant’s whereabouts and secure his release through his influence and bribes. After his release, the applicant lived under immense pressure from the Ethiopian government and remained politically neutral.
·The applicant was unable to find a job after his release due to turmoil following the elections. He finally obtained a job in May [2007]. After starting the job as a [junior staff], the applicant met his university colleagues, economists, who conducted [research].
·The results of the research led to the discover that there was a high demand of land, with biased and ineffective strategies and policies of the Ethiopian government towards land administration opened the door for corruption.
·After the release of the report, the applicant was targeted by political cadres, as an antidevelopment Oromo activist and a puppet of the Oromo Liberation Front (OLF). He was accused of inciting civil unrest, and mobilising others for adverse purposes. The applicant claims he was followed by people wherever he went and faced pressure in his job as a result. His office drawer was confiscated, phone and computer access and claims were made that his co-workers spied on him. The applicant resigned his job in fear of this and possible imprisonment.
·Upon returning home from work, in August 2008, security agents came to the applicant’s house and arrested him. The applicant was suspected of attending anti-government meetings the weekend before, and continuing with subversive activities with local Oromo activists. The applicant claims he was tortured for three nights whilst jailed, before being released with a warning not to associate with the OLF.
·The applicant’s elder brothers who remained in Ethiopia were arrested just before the 2015 elections. The applicant heard this from his mother, and his brothers had been missing since this time. The applicant’s home in Ethiopia has also been raided.
·The applicant’s father passed away on [date] March 2015. He was a tribal chief in the Oromo community and settled disputes within the community. While the applicant’s father had a prominent role in the Geda system, he was not able to assign his role in the Geda system to any of his sons before he passed away.
·The applicant further claims that the government had followed his father since 1991 because of his heritage, through higher taxes, and several imprisonments because of his profile. The first imprisonment was for 13-14 months in 1993, and several others occurred of that time. The last imprisonment was in 2014, when he was imprisoned for 4 months, and released in September of that year because he was very ill.
·While the applicant and his family agree that OLF by fighting for the Oromo people and their culture are good for the Oromo people, no-one in the applicant’s family was or is a member of the OLF. However, they are imputed to be supporters of this political party because of their Oromo ethnicity.
Tribunal Hearing
The applicant explained the basis upon which he says he has a well-founded fear of persecution in Ethiopia. He raises three distinct grounds:
·His ethnicity as an Oromo;
·Political opinion being that he is imputed to support the Oromo Liberation Army (OLA) and the Oromo Liberation Front (OLF);
·He is a Member of two particular social groups – the first being an able-bodied Oromo Man at risk of recruitment by the Ethiopian Army or other armed groups; and the second being that he is a conscientious objector who does not believe that military or armed conflict is the solution to conflict.
The delegate accepted “the applicant is Oromo, and that members of his family have been perceived to have been supporters or members of the OLF because of their ethnicity, and his father’s perceived status in the Oromo community. Country information also supports the applicant’s claims that members of the applicant’s family including his father, and his brothers, may have been detained, interrogated and tortured during politically sensitive election times.”
The information before the Tribunal supports the delegate’s findings as set out in the preceding paragraph. There is no evidential basis upon which the Tribunal thinks it should deviate from the findings that the delegate made in this respect.
The applicant’s evidence was, in all respects, straightforward, detailed, and consistent. The Tribunal found him to be a credible witness.
The applicant explained that the process of his obtaining a “Kebele” identity card from government would result in local authorities becoming aware that he is an Oromo, and then asking him questions that would require him to align himself with the OLF or OLA.
The applicant then gave the Tribunal detailed evidence about the importance of the Kebele card in Ethiopian civil society. In order to work, he needs a Kebele card. The applicant says that to find a job (the applicant is a well-educated [occupation]), he would need to live in Addis Ababa, but he would first need to return to his city of birth, [Town 1], to obtain the Kebele card as that is where his record of birth is.
As he has been away for some 13-years, in the process of obtaining the new Kebele card, the applicant is likely to be asked questions that require that he identifies himself as an Oromo man. It is through this process that the applicant considers he is most exposed to danger.
Through the Kebele application process, the applicant says that he is likely to be asked questions about where he has been. In [Town 1], where his father served as an Oromo community leader, with a role in the Geda system of community justice, the applicant is concerned that he will be imputed to be aligned with the OLF. The applicant gave detailed evidence about the role performed by his father, who died in 2015. Based on the applicant’s evidence, and the country information available, the Tribunal accepts the applicant’s evidence that his father was imprisoned on several occasions because of his community profile in the Oromo community. The applicant’s evidence of his father’s status and role was straightforward and fits into the broader social context of the applicant’s life. His mother has more than one property in Ethiopia, and the applicant has been educated in Australia – signs that the applicant’s family generally has a level of higher social status in Ethiopia.
The Tribunal therefore finds that the applicant is of Oromo ethnicity; that he may be imputed to be a supporter of the OLF or OLA.
Potential of being “conscripted” by an armed group
The applicant describes his primary fear as being forced to join the army or an armed group if returned to Ethiopia. The applicant states that he knows that the Government was recruiting people of his Oromo ethnicity to fight in the Tigray and Amhara regions against the Tigray People's Liberation Front. The applicant listens to Ethiopian radio and hears news stories about the violence between different ethnic groups, and he heard about massacres in the Amharas in Oromiya.
The applicant further holds concerns about the involvement of the military and armed conflict as the way to resolve differences between ethnic groups and cites the experiences of Eritrea as a reason why he doesn't believe that Tigray or Oromiya (in Ethiopia) should become independent. The applicant stated that he remembered when growing up, that his neighbourhood had people of various ethnic groups, intermingling and supporting each other, and that 'nowadays, everyone is split for no reason. It is a totally different way of living'.
The Tribunal finds that the applicant has a genuine fear on the basis of being an able-bodied man of an age suitable for military service and being forced to join the army or an armed group if returned to Ethiopia. The Tribunal further finds that that the applicant has a genuine fear, on the basis of being a conscientious objector to military service, of being forced to join the army or an armed group if returned to Ethiopia.
The Tribunal has had regard to the DFAT Country Information Report for Ethiopia, the most recent version being dated 12 August 2020. In relation to military conscription, the report says:
Military
The Ethiopian National Defence Force (ENDF) comprises an army and air force. Combined, the ENDF has around 180,000 personnel. As a landlocked country, Ethiopia has no naval capacity, although Prime Minister Abiy has initiated steps to re-establish a naval force (Ethiopia’s navy was disbanded following Eritrea’s secession). The ENDF is a capable force, and is one of the largest contributors to UN peacekeeping operations (including to peacekeeping missions in neighbouring countries). The ENDF is occasionally deployed to regional states to support regional security forces restore order during instances of major civil unrest, but generally does not have a major presence at the regional state level.
Military service is not routinely compulsory, although the ENDF retains the right to conduct call-ups. A refusal to perform military service can attract a penalty of up to 10 years’ imprisonment under the Criminal Code. The minimum age for military service is 18 years.
International partners, including the US, provide funding for a range of training programs for the ENDF, including peacekeeping, professional military education, military training management and counter-terrorism operations. The ENDF is accused of past human rights violations, including the use of excessive force and extrajudicial killings during the 2014-18 protests in Oromia and Amhara states and counter-insurgency operations against the ONLF in Somali State.
The military has extensive economic interests through METEC, an industrial conglomerate spanning nearly 100 companies. METEC has been the subject of anti-corruption investigations by the current federal government, and several senior executives, including its former chief executive, Brigadier General Kinfe Dagnew, have been arrested for suspected corruption.
The applicant, through his representative, accepts that the official position of the Ethiopian government is that military service is not compulsory. However, the applicant submits that the DFAT information is not updated and does not accurately reflect what is happening in an unofficial capacity in a context of significant civil unrest. The applicant has provided the Tribunal with relevant, up-to-date country information, extracted from the representative’s submissions as follows:
Forcible recruitment into Ethiopian military forces or other armed groups
Country information confirms that able bodied men such as the Applicant have been forced to fight for groups such as the Ethiopian military, and also for the regional military forces. On 8 November 2021, AP News reported[1]:
[1] Accessed online on 30 June 2022 at People fleeing Ethiopia allege attacks, forced conscription | AP News
A new round of deadly attacks and forced conscription has begun against ethnic Tigrayans in an area of Ethiopia now controlled by Amhara regional authorities in collaboration with soldiers from neighboring Eritrea, people fleeing over the border to Sudan tell The Associated Press as the yearlong war intensifies.
On 29 September 2021, the Addis Standard reported that[2]:
[2] Accessed online on 30 June 2022 at Feature: Conscription, forced contributions to army & aid obstruction aggravate starvation in Borana, Oromia; local admins blame "enemy propaganda" - Addis Standard
"They [local authorities] are conscripting youth who support their elderly parents, and this has led to hunger among the elderly" the second eye witness explained, "No one joined the army willingly. If we speak up they will call us terrorists and 'Shanee' (A term used by regional and federal governments correspondence to refer to the Oromo Liberation Army) and throw us in jail,” he said.
A third resident also told Addis Standard that the zonal administration officials took money and cattle from residents to support the national defense forces from people who are already suffering from food insecurity. According to him, in addition to that forced conscription of the youth has made the elderly vulnerable as they depend on the youth for farming and other activities. "People who resisted have been arrested and many went missing,” he said, adding, "We wish for these acts to stop."
This is confirmed by a further 26 July 2021 Addis Standard report[3]:
Reports suggested that the process is ongoing since Wednesday, July 21, 2021, while images of Oromo youth being loaded into busses and being sent to temporary training camps before being sent to the battlefront in the border area between Am hara and Tigray regions flooded social media platforms over the weekend. On its part, Oromia regional state through its broadcast network Oromia Broadcasting Network (OBN) issued statements confirming the recruitment of youth in different zones of the region into the ENDF and defended the process arguing that it was voluntary in nature. Corresponding statements confirmed recruitment in Borana, West Guji, Illubabor and West Shewa zones in addition to reports of conscription of youth in the Special zone surrounding Finfinne, Bale, East Bale, West Arsi zones of the region.
However, sources who spoke to Addis Standard dispute the government depiction of the nature of recruitment as voluntary and argue that it is conscription. In Shashemene, a source who asked to remain anonymous for fear of reprisal confirmed to Addis Standard and said,
"Young men are being rounded up and being taken to Rift Valley hotel and the crying mothers were denied access to their children." A medical doctor who oversaw the medical check up of some of the recruits also confirmed the occurrence of the matter. The MD who asked to remain anonymous for fear of reprisal added, "I know for a fact that at least one recruit is 17 years old. I later confirmed from his family that he was indeed underage."
Youth in Bale and East Bale zones were not spared from conscription. Sources on the ground confirmed to Addis Standard the forced nature of the recruitment process. A community leader in Bale-Robe town who asked to remain anonymous told Addis Standard, "They are rounding up youth from nearby towns and gathering them in the city. City youth are not spared either." When asked about the numbers he said, "The numbers are huge, why they are doing it and why at this time I don't know." The community leader explained that the mechanisms in which the recruitment process is being carried can only amount to conscription and argued that underage teens might fall victim to the process.
[3] Accessed online 30 June 2022 at News Analysis: Oromia regional gov’t claim voluntary youth recruitment, region’s Opposition dispute claim, depict process as conscription - Addis Standard

Relevant to the applicant’s claimed fears, the applicant points to highly credible media reports from the Wall Street Journal, dated 10 August 2021, wherein the Ethiopian Prime Minister, Abiy Ahmed, calls on all able-bodied Ethiopians to fight against The Tigray People’s Liberation Front (TPLF)[4]:
Ethiopian Prime Minister Abiy Ahmed urged "all capable Ethiopians" to join the army, special forces and regional militias to support the fight against rebel Tigrayan forces, a call for total mobilization in a civil war that is tearing Africa's second most-populous nation apart.
[4] Accessed online on 30 June 2022 at Ethiopian Leader Calls for Mass Mobilization as War Against Tigray Forces Widens - WSJ
The applicant further refers the Tribunal to United Nations Human Rights reports[5] indicating that those involved in the fighting, if captured, face a high risk of torture and arbitrary detention:
138. The torture and ill-treatment of civilians and captured combatants has been an expression of the brutality exhibited by all sides during the conflict. In relation to civilians in Western Tigray, torture and ill treatment was mainly based on the victims' ethnic identity. In other parts, it was against captured soldiers and fighters of parties to the conflict as well as civilians suspected of providing support to them. Civilians and combatants subjected to torture and ii/treatment interviewed by the JIT continued to suffer physically and psychologically. The JIT observed that victims of torture and other ill-treatment did not have access to medical and psychosocial services.
139. There are reasonable grounds to believe that torture and other cruel, inhuman, or degrading treatment or punishment has been committed by all parties to the conflict, including the ENDF, EDF, Tigray forces and militias allied with the TPLF. The Tigray police have also been implicated. These acts have been committed against civilians and captured combatants in various locations across Tigray, including in military camps, detention facilities, victims' homes, as well as secret, and unidentified locations. These acts have taken various forms including severe beatings with electric cables, plastic covered metal pipes or wooden sticks; being held incommunicado; being threatened with guns held to the victims' heads; and deprivation of food and water.
[5] Report of the Ethiopian Human Rights Commission (EHRC)/Office of the United Nations High Commissioner for Human Rights (OHCHR) Joint Investigation into Alleged Violations of International Human Rights, Humanitarian and Refugee Law Committed by all Parties to the Conflict in the Tigray Region of the Federal Democratic Republic of Ethiopia, accessed online on 30 June 2022 at OHCHR-EHRC-Tigray-Report.pdf
It is the applicant’s submission that this OHCHR/EHRC report, in particular, establishes that key principles of international humanitarian law have not been followed during the conflict in Ethiopia, and combatants face extrajudicial murder and torture if captured.
Further, and particularly relevant to the concerns expressed by this applicant, the same OHCHR/EHRC report states:
123. In Maikadra, Bora Amedwha, Bora Chemala and Mai Liham, several men were targeted and killed by parties to the conflict. Victims of unlawful killings and extrajudicial executions were disproportionately male, on account that they would be most likely to join a party to the conflict and engage in hostilities. Beyond the psychological suffering caused by the killing of their loved ones, the targeted killing of men, has in many cases, turned wives into single parents left to support entire families including their children and older people in the family.
The Tribunal accepts that the collective body of country information available to it supports a finding that the applicant would face a very high risk of serious harm as a result of his membership of a particular social group (able-bodied man of an age suitable for military service in Ethiopia), and that there is a real risk that the applicant would be forced to participate in militarised conflict, and thereby experience serious harm as a result.
The Tribunal considers that there is a real risk now and in the foreseeable future if the applicant is returned to Ethiopia.
The Tribunal finds that the applicant has a well-founded fear or persecution on the grounds that he is a member of a particular social group (able-bodied man of an age suitable for military service in Ethiopia). This is an identifiable group of persons with a social presence in a country, set apart from other members of that society. Having made this finding, it is not necessary for the Tribunal to determine whether the applicant is, in fact, also a conscientious objector to military service.
The Tribunal is satisfied that the essential and significant reason for the persecution feared is on the grounds of his membership of a particular social group. On the basis of the evidence before it, including the country information cited above, the Tribunal is not satisfied that state protection is available to the applicant in Ethiopia.
The Tribunal is not satisfied that the applicant would be able avoid the harm referred to by internally relocating within Ethiopia. For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution in all areas of Ethiopia for the reasons stated.
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
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.
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.
…

[2022] AATA 2847

30 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies