1822094 (Refugee)

1822094 (Refugee) [2023] AATA 2530 (5 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Jeans (MARN: 9253749)
CASE NUMBER:  1822094
COUNTRY OF REFERENCE:                   Uganda
MEMBER:Jane Marquard
DATE:5 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 July 2023 at 7:22am
CATCHWORDS
REFUGEE – protection visa – Uganda – membership of particular social group – homosexual man in secret relationship – fear of harm from family, friends and activity group – claims acknowledged as incorrect and withdrawn and consent to decision without hearing – intention to request ministerial intervention – unique and exceptional circumstances – high-level participation in activity nationally and internationally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65, 417, 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 1, cl 1401, Schedule 2, Subclass 866
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
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 26 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a man from [Suburb], Kampala, Uganda born in [Year].
The applicant first arrived in Australia [in] March 2018 on a [Specified] visa for the purpose of attending [an Event].
He applied for the protection visa on 15 May 2018. He claimed protection on the basis of being persecuted as a homosexual man in Uganda.
A delegate of the Department of Home Affairs (the Department) refused to grant the visa on 31 July 2018. The delegate did not accept that the applicant was homosexual, or that he was in a homosexual relationship, and refused the protection visa application on this basis as it was not accepted that there was a real chance of serious harm or a real risk of significant harm.
The applicant applied for review with the Administrative Appeals Tribunal (Tribunal) [1] on 31 July 2018. On 1 August 2018 the Tribunal wrote to the applicant to acknowledge the receipt of the application for review. The applicant was invited to provide material or written arguments in support of the review as soon as possible. No further material was provided.
[1] Section 25, Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal has jurisdiction pursuant to Division 2 of Part 7 of the Migration Act 1958 (Cth).
On 9 October 2020, Simon Jeans of Jeans Lawyers was appointed to act for the applicant.
In a letter to the Tribunal dated 8 December 2022 Mr Jeans said that he was instructed to request that the Tribunal proceed to make a decision without a hearing and that the applicant understood that this meant that the decision under review would be affirmed. Mr Jeans notified the Tribunal that the applicant intends making a request to the Minister for Immigration, Citizenship and Multicultural Affairs under s 417 of the Act. This provision allows the Minister in his or her discretion to make a decision more favourable than a decision made by the Tribunal, where there are unique or exceptional circumstances.
As the applicant has consented to a determination of the matter without a hearing, the Tribunal has proceeded to make a decision on the papers in accordance with s 425(2)(b) of the Act.
CRITERIA FOR A PROTECTION VISA
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
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.
Responsibility of applicant to specify particulars and provide evidence
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
evidence CONSIDERED IN THIS REVIEW
The Tribunal has taken into consideration the evidence in the Department files including the application and supporting documents, as well as the letter from the applicant’s representative dated 8 December 2022 to this Tribunal.
No Tribunal hearing was held in this matter as the applicant consented to the matter being determined on the papers before it (s 425(2)(b) of the Act).
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[6]
FINDINGS
[6] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a Ugandan passport issued in 2014. The Tribunal is satisfied on the basis of his passport and details provided in his application that the applicant is a national of Uganda, and that Uganda is the receiving country for the purposes of the legislation
Findings about the applicant’s background and [Activity] ability
The applicant lived in Kampala until he travelled to Australia in 2018. The applicant is [an Activity participant] who travelled with [a Group] to Australia to [Participate] in the 2019 [Event] in Australia.
A letter from [Mr A] of [Organisation] dated 8 December 2022 outlined the applicant’s [Activity participation] and his view that he is the best [Activity participant in a category] in Australia.
The Tribunal accepts the information provided about the applicant’s background and [Activity participation] as there is no reason to doubt this evidence.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[7]
[7] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
The Tribunal has considered whether there is a real chance that if the applicant returned to Uganda he would be persecuted for one of the reasons in the legislation. Consistent with the interpretation of ‘well-founded fear’ under the Refugee Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[8] not only must a person fear persecution, there must also be a prospect of that fear being realised.
[8] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugee Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[9]
[9] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
In his application for the visa, the applicant outlined his reasons for leaving Uganda as follows:
I am a homosexual man and had been living in a secret relation with my partner (). I had not not intended to come to Australia to make a claim for protection. I came to Australia as [an Activity participant] to participate in the [Event]. I came to represent my country Uganda and do them proud. I participated in the [Event in Activity]. Prior to the games I has been in a relationship with () for 1 year and 3 months. Our relationship was secret as we were aware of the consequences if we were found out. We are very much in love and wanted it to remain a secret. [In April] 2018 l was engaging in sexual activity in my room in the [Event venue] with ()). My [Group member] walked in on us. He was disgusted and angry. We begged him not to tell anyone as we were aware of the consequences. He immediately told our [Group leader]. Our [Group leader] called a meeting and he displayed his anger and disgust. He told me I had performed satanic acts and should be killed. He had been my [Group leader] for 4 years and now exiled me. He told me he would advise the Ugandan authorities and we would be killed immediately. He expressed his immense anger and disgust. The [Group leader] then took my passport and told me he would give it to the Ugandan authorities at the airport so we would be immediately captured for our homosexual acts. I begged for it back but he would not give it back. He told me he would tell all our family and friends of our satanic acts and we would eb killed. A volunteer at the games heard the fight and she assisted myself and () to flee the village for safety. She gave us a room in her house for 3 days then she bought us tickets to Adelaide by bus. My [Group leader] has now returned to Uganda with my passport and advised the authorities of our actions. I have received threatening text messages of death from him. He has advised my family who I have received numerous threatening death messages. My friends and family have all advised I cannot return to Uganda as they will kill me if the authorities do not. I have lost everything.
He claimed that he feared returning to Uganda because of the Anti-Homosexuality Act, 2014 which has a penalty of death. He claimed that he had a friend who had been imprisoned for life. He claimed to fear being detained at the airport and being harmed in prison. He said that homosexuality was regarded as satanic and he had received death threats from friends and family. He claimed to fear being killed on return.
In the letter to the Tribunal from the applicant’s representative dated 8 December 2022 it was stated:
We are instructed to request the Tribunal proceed to make a decision without a hearing. (The applicant) understands this means the decision under review will be affirmed. (The applicant) accepts the claims advanced in his application were not correct and they are withdrawn. While he has some concerns about the attitude of the government of Uganda, not having returned after [participating] in the 2018 [Event], he accepts the prospects of any harm are remote. (The applicant) intends making a request to the Minister for Immigration, Citizenship and Multicultural Affairs under s.417 of the Migration Act 1958.
In support of his application, the applicant provided photographs and copies of text messages.
The Tribunal notes, on the basis of this letter dated 8 December 2022, that the claims advanced in the application to the Department ‘were not correct’ and are withdrawn. On the basis of this notification, the Tribunal is not satisfied that the applicant is a homosexual man or that he was in a homosexual relationship with a fellow [Event participant]. The Tribunal is also not satisfied that another contestant notified their [Group leader] of a sexual activity or that the [Group leader] took his passport, said he should be killed or notified the authorities. The Tribunal is not satisfied that the applicant has received threatening text messages from the [Group leader] . The Tribunal is also not satisfied that the applicant received death threats from family or friends or that he fears returning to Uganda because of his sexual orientation. The Tribunal has been notified that these claims are not correct and are withdrawn.
As the Tribunal does not accept that the applicant is a homosexual man known to authorities who has been threatened by his [Group leader] , family and friends, the Tribunal is also not satisfied that there is a real chance of serious harm from the authorities, his [Group leader] , family or friends if the applicant were to return to Uganda in the reasonably foreseeable future for reasons of his sexual orientation. The Tribunal is not satisfied that there is a real chance that he would be arrested, sentenced to death or harmed in prison.
The applicant’s representative noted that the applicant ‘has some concerns about the attitude of the government of Uganda, not having returned after [participating] in the 2018 [Event]’. However, he concedes that ‘the prospects of any harm are remote.’ The Tribunal notes that the applicant, while having some concerns about the attitude of the government to persons who did not return after the Games, does not suggest that there is a real chance of serious harm, acknowledging that the chance of harm is remote. The concept of ‘real chance’ was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility. The Tribunal is not satisfied therefore that there is a real chance of serious harm from the authorities were the applicant to return to Uganda for reasons of his political opinion or as a member of a particular social group of ‘returnee asylum seekers’ or ‘[Event] participants’ or any other similar group.
No other claims have been advanced by the applicant.
The Tribunal notes that the applicant’s representative confirmed that the applicant is aware that there will be an ‘affirm’ decision in this matter.
The Tribunal is not satisfied for the reasons set out above that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?

If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The applicant’s representative in the letter dated 8 December 2022 confirmed that the claims made in the application are not correct and are withdrawn. On this basis the Tribunal is not satisfied that there is a real chance of serious harm based on sexual orientation were the applicant to return to Uganda in the reasonably foreseeable future. For reasons set out earlier, the Tribunal is also not satisfied that there is a real chance of serious harm for any other reason. For the same reasons, on the basis of the reasoning in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation. The Tribunal notes that the applicant’s representative has confirmed that the applicant is aware that there will be an ‘affirm’ decision in this matter.
The Tribunal is not satisfied for the reasons set out above that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Uganda there is a real risk of significant harm.
Ministerial intervention
The representative notified the Tribunal that the applicant intends making a request to the Minister for Immigration, Citizenship and Multicultural Affairs under s 417 of the Act. In the letter dated 8 December 2022 from the applicant’s representative it was stated:
We have enclosed a letter from [Mr A] of [Organisation] in [City] which sets out his achievements in [Activity] since his arrival in Australia. We understand he will have the support of [Activity body]. In addition, he has been residing and working in a regional area. We believe his unique and exceptional circumstances fall squarely within the Minister’s Guidelines relating to exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia; and the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
A letter from [Mr A, Organisation, City], dated 8 December 2022 stated that he believed that the applicant is the best [Activity participant in a category] in Australia and he supported his application for a visa or citizenship. [Mr A] said that he took very seriously giving anyone a reference for Australian citizenship. He had [worked for Employer 1] including [a posting] overseas and had served in [Employer 2] for 11 years. He said that he felt a need to contribute to the community and [started the Organisation] as a community [facility] and works by donations. He actively promotes [Specified ideals]. He is a [Specified] man.
[Mr A] said that he had known the applicant for over four years as the applicant had been a [participant] in his [facility]. He said that the applicant was dedicated and talented. He said that he had [participated] with him involving many weeks away together. He said that the [applicant] is a ‘fine young man’ who is respectful to him, the team at [Organisation], his wife and their family. He said that he is a ‘great role model for the younger members of the [facility] and always leads by example’. He commented that he works full time and [participates] to the best of his ability.
[Mr A] said that the applicant has been identified as a possible [Group member] representing Australia. He had [participated in various events].
[Mr A] said that the applicant was unable to [participate] in [a national event] in 2022 because of his visa status. He said that citizenship would guarantee his right to represent the country in international [events]. He believes that the applicant could represent Australia. He also wished to emphasise the applicant’s good character.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

Attachment A - 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.
…

[2023] AATA 2530

5 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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