1822222 (Refugee)

1822222 (Refugee) [2024] AATA 3637 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822222
COUNTRY OF REFERENCE:                   The Philippines
MEMBER:Carolyn Wilson
DATE:30 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 July 2024 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – Philippines – political opinion – opposes the previous president Rodrigo Duterte – fear of the New People’s Army (NPA) – employment opportunities – typhoons – health condition – compassionate grounds – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
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 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 6 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of the Philippines, applied for the visas on 17 January 2017. The delegate refused to grant the visas on the basis that the first named applicant did not have a political profile such that he faced a real chance of persecution, would not be targeted by the New People’s Army (NPA), and harm caused by typhoons was a risk faced by the population generally.
Four of the applicants appeared before the Tribunal on 14 June 2024 to give evidence and present arguments. Prior to the hearing the applicants indicated he had two witnesses, [Ms A] and [Ms B], to provide supporting evidence, however they did not come to the hearing. I invited the appliants to provide statements from the witnesses post-hearing if they had evidence to give, however no statements were provided.
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 applicants are a family group comprising parents and their four children, three of whom are now adults. They claim to be citizens of the Philippines and provided copies of their passports as evidence. I accept the applicants are citizens of the Philippines and find the Philippines is their receiving country.
The father of the group (the applicant) first came to Australia in January 2013 as the holder of a Subclass 457 Temporary Work visa. He returned to the Philippines in 2013 and 2014, and last entered Australia in April 2014. His wife and daughter joined him in Australia as his dependents in 2013 and his three sons in 2014. They went to the Philippines for family reasons in December 2014 and returned to Australia in early 2015.
Visa application
In the visa application lodged in January 2017 only the applicant made protection claims. His family applied for the visa as members of his family unit. He provided the following information and claims:
·He is a married Catholic with four children, from the province of Western Samar in the Philippines.
·He came to Australia for work but after the change of administration in the Philippines, and the support given by the current administration to extrajudicial killings, he strongly considered he would be threatened with death if he returned.
·He had not experienced harm in the past but believes he will be subjected to bullying, harassment, and killed, and his entire family will be harmed.
·He could not relocate to avoid harm because supporters of the current administration are everywhere. He cannot seek protection because it is an open secret that killings are done under the instruction of the government.
The delegate invited the applicant to provide further information at an interview. Following the interview the applicant provided a written statement responding to issues raised in the interview:
·He did not apply for protection when he first arrived in 2013 as his plan at that time was to live and raise his family in Australia as the holder of a permanent work visa.
·Everything changed when President Duterte was elected to office. He had been very vocal in opposing Duterte’s candidacy and this angered supporters of Duterte. These supporters threatened him with harm but he continued to criticise Duterte until he got a threatening message from an unknown supporter.
·The province of Samar is infested with the terrorist group NPA. This group is known for kidnapping and extortions. If they know he and his family had lived in Australia the NPA will target them because they will be presumed to have lots of money. The NPA will target his children for recruitment.
·Samar Island is prone to typhoons and his house was frequently flooded. Living through typhoons has psychologically affected his children such that they fear even normal rain.
·There is no possibility of he or his wife getting work in the Philippines due to job shortages.
·His qualifications and work history are very useful in Australia, particularly in the mining, oil, and gas sectors. Many companies have enquired about his availability but cannot employ him due to his current visa conditions.
The applicant attended the hearing with his wife and two youngest children. His older children did not attend as they were away working. At the hearing they provided written statements from the applicant and his wife, letters of support from their employers, and record of school enrolment for the youngest.
Applicant’s claims and evidence
The applicant gave evidence that his father still lives in Samar, as does one sister. His mother passed away. His brother works in Manilla and another sister lives in [Country 1]. The applicant was unable to afford to go to college in the Philippines and worked in construction. He started working overseas in 2000 and gained valuable work skills and experience in the areas of mining and oil and gas. In 2013 he was recruited by [a Country 2] company to work in Australia as a [Occupation 1]. He came here on a temporary work visa with the promise of long term work and an ability to apply for permanent residency for himself and his family. However, the large mining projects the company intended to employ him for did not eventuate, and after his initial contract his employment with them ceased.
The applicant said he started to oppose Duterte more than 10 years ago, when he was merely a mayor in the Philippines. The applicant expressed his opposition by telling his friends that Duterte would be not good as a leader. His friends did not agree with him and told him if he did not like Duterte then go live somewhere else.. Sometimes he made comments on [social media] expressing his opposition. He did not make his own posts, but commented on other peoples’ posts saying things like ‘he is not the leader we want, because of his background’. He cannot find any examples of this because he deleted the comments. These comments were made on [social media] around the time people were talking of his potential as a leader, but before Duterte became President. He has not commented online since. The applicant said he is not a political activist, his priority is his family. However he still fears people who read his comments because they think if you are against the leader then you are the enemy. He says supporters of Duterte are everywhere.
The applicant said the other problem he had in Samar was that it was infested with the NPA and some of their neighbours were pro-NPA. He said his family in the Philippines do not personally have problems with or face harm from the NPA but they do not like them. The NPA may target him because they are also supporters of Duterte and may not like his political views.
The applicant said even though Duterte is no longer the President his friends tell him the situation in the Philippines is worse. He will be unable to get work because the politicians favour their families. This is why he could never get a government job in the Philippines and only worked in construction, which he is too old to do now. His health conditions will also prevent him from getting work.
The applicant said he sought work overseas because he did not feel comfortable in the Philippines. Duterte had so many supporters and he never knew who might want to harm him. Life will be hard for his family if they have to return to the Philippines and although he has stopped publicly criticising Duterte he may not be able to control himself if he is back living in hardship in the Philippines.
The applicant said his house in the Philippines is not habitable due to flood damage. The house is situated in a flood prone area so no one wants the house, even a small rainfall will cause the house to flood.
The applicant provided a written statement at the hearing, asking the Tribunal make a compassionate assessment of the visa application. He and his wife work in aged care in Australia, which brings them fulfilment and has a positive impact on the elderly residents. He has health conditions that require daily treatment that would not be available to him in the Philippines, and his age would be a barrier to employment. The stability and quality of life they have found in Australia are irreplaceable.
Following the hearing the applicant provided a further written statement and medical evidence. His statement refers to the compassionate grounds regarding why he hopes the family can stay in Australia. There was no further evidence relevant to his protection claims. The medical evidence confirms he has a number of health conditions including type 2 diabetes, hypertension, asthma, and osteoarthritis.
Second applicant
The second applicant is the applicant’s wife. She said she lived in fear in the Philippines because of the NPA. When she was a girl her mother’s sister, who worked on a farm, refused to give food when the NPA demanded it. This angered the NPA, and shortly afterwards the aunt went missing. To this day they do not know what happened but suspect she was killed. The NPA threatened her family not to look for her. She believes the NPA were also responsible for the death of the man who they rented their motorised tricycle to. The man told her the NPA had warned him for opposing them, and a week later he was killed when out riding the tricycle. This happened in around 2001.
The second applicant also spoke about a particularly bad typhoon that hit Samar when she was alone with the children. Her daughter was just a baby and she nearly lost her. The flooding was so bad she thought they would all die, and she and the children are still traumatised by the event. After that, whenever it rained heavily, she would flee to her parents’ house on higher ground because they were all so scared.
The second applicant provided a written statement at the hearing in which she spoke of the long periods of separation when she lived in the Philippines with the children whilst her husband worked overseas. The job in Australia marked a turning point as they could all come here. The children have thrived in a way they would not have in the Philippines. However they are significantly affected daily due to the visa restrictions, such as being unable to access university education.
Following the hearing she provided a further written statement regarding compassionate reasons why she hopes the family can remain in Australia.
Fifth applicant
The fifth applicant is the youngest son in the family, now age [age]. He said he finished high school in 2022 and was a high achiever in study and sport. He has dreams of being a surgeon, however this is not possible due to his visa status.
He has been in Australia since he was [age] years old. He does not remember much of his life in the Philippines but he does have a memory of having to use rope to cross to a neighbour’s house to escape a rising flood. He has heard stories from his parents about the lack of safety in the Philippines.
Sixth applicant
The sixth applicant is the applicant’s daughter and youngest child. She is [age] years old and currently enrolled in high school. She dreams of studying nursing and working in the medical field, but fears she won’t be able to. She was only [age] years old when she came to Australia and has no memory of the Philippines. She has heard it is a dangerous place and doesn’t think she would be safe there.
Following the hearing the sixth applicant provided a written statement outlining compassionate grounds why she and her family should remain in Australia.
Third and fourth applicants
Following the hearing the third and fourth applicants provided written statements.
The third applicant wrote of the career he is making in the culinary field, and the effect visa limitations and lack of access to higher education has impacted that. He asks the Tribunal to reconsider his visa status.
The fourth applicant states he has lived half his life in Australia and wants to become a citizen because he loves his life here.
Consideration of claims
Political claims
The applicant claims he will be targeted in the Philippines because he opposes the previous president Rodrigo Duterte.
Duterte was the former Mayor of Davao, known for his strong stance against crime. HE is also known for the accusations against him of human rights abuses. He was elected as president in 2016 and his government launched a campaign against illegal drugs, resulting in arrests and killings, including alleged extrajudicial killings.[1]
[1] DFAT, Country Information Report The Philippines, 23 August 2021.
I accept the applicant is critical of Duterte and does not support him. It is plausible he made comments criticising Duterte in the past, such as comments in person to friends or comments online on other people’s posts. This occurred around 2013 or 2014, before Duterte was President. He claimed in his written application to have received threats for his comments, but there is no evidence of this. He was not physically approached or harmed during this period.
The applicant said he may not be able to control comments he makes in person if he is returned to the Philippines, and supporters of Duterte are everywhere. DFAT reports that senior politicians who openly criticised the Duterte administration faced censure and harassment. Other prominent people including a human rights lawyer, a senator, and four bishops and three priests were arrested, charged, and in some cases jailed for criticising the Duterte administration. DFAT assesses prominent and mid-level politicians and religious leaders who oppose the government face a moderated risk of harassment. However DFAT is not aware of lower-profile supporters of political groups or personalities being targeted.[2]
[2] DFAT, Country Information Report The Philippines, 23 August 2021.
The applicant is a critic of Duterte, but is not member of any opposition or other political group. If he made comments on other people’s [social media] posts in the past, he no longer does so. I consider it farfetched anyone remembers his critical comments from more than 10 years ago, before Duterte was even President. The applicant has never been a political activist and there is no evidence he would be in future. Even if he is critical of Duterte or the current government because of hardships he may feel in the Philippines, I do not accept he has a profile to attract adverse attention leading to harm. I find the chance of harm for holding a personal opinion that is critical of Duterte or other political leaders, even if the applicant expresses this view among family, friends and his local community, is too remote to amount to a real chance.
New People’s Army
The applicant and the second applicant both made claims to fear harm form the NPA, who they say have a strong presence and support on their home island of Samar.
The NPA is the armed wing of the Communist Party in the Philippines. It has waged a violent insurgency against the Philippines government for decades, with a stated goal to destabilise the economy, overthrow the government, and install a Maoist-based regime.[3]
[3] DFAT, Country Information Report The Philippines, 23 August 2021.
The International Crisis Group (ICG) reported in April 2024 that the NPA is at its lowest ebb in decades after being politically and militarily weakened. The government has tried to defeat the NPA by combining military pressure with development projects in remote villages, and this strategy is reported to be paying off. The 25,000 strong force of the 1980s is now reduced to an estimated 1,200 to 2,000 people. There are only a few hundred left in the Visayas region, where Samar is located. ICG reports the government has achieved gains over the NPA in Samar in recent years through intelligence work and carefully calibrated use of force. The last remaining insurgents are holed up in the hinterlands and their support networks have been weakened.[4]
[4] ICG, Calming the Long War in the Philippines Countryside, 19 April 2024.

I accept the second applicant’s aunt went missing in the 1980s, presumed killed by the NPA. I accept the applicants fear the NPA and that the NPA did have a presence on the island of Samar where they lived. There is no evidence they personally had harmful interactions with the NPA, nor that any of their relatives have since they left the Philippines. The applicant claims they are at risk of extorsion from the NPA because they will be perceived as rich for working overseas. There is no evidence the family were targeted for this reason in the past, noting the applicant worked overseas from 2000 onwards. He also returned to Samar multiple times from all over the world during the period 2000 to 2013, and voluntarily returned from Australia on two occasions in 2013 and 2014. The NPA is a much weakened force, and those left on Samar are described by the ICG to be few, struggling, and holed up in the hinterlands. I consider the chance of harm from the NPA in the reasonably foreseeable future is too remote to amount to a real chance.
The applicant also claimed he could face harm from supporters of the NPA in his community if he voices an opinion critical of the NPA. Having regard to the ICG report on the weakened support for the NPA, I find the chance of harm from persons in the community who support the NPA and are offended by any criticism by the applicant, is too remote to amount to a real chance.
Employment
The applicant claimed he would be unable to support his family in the Philippines because there are limited job opportunities and further that he is unemployable because of his age and ill health. The applicant is age [age], and although he suffers a number of health conditions they are controlled with medication and he is well enough to work in Australia.
The World Bank classifies the Philippines as a lower middle-income country. Prior to COVID-19 the Philippines’ economy had been growly strongly. It experienced negative GDP growth during the pandemic but started growing again in 2022.[5] Poverty rates have decreased from 23.5 per cent in 2015 to 18.1 per cent in 2021, even with the impact of COVID-19.[6] Unemployment in the Philippines is currently said by the Philippines Statistics Authority to be 4.1 per cent as of May 2024.[7] In 2023 the World Bank reported the unemployment rate for the Philippines was 2.2 percent.[8]
[5] DFAT, Country Information Report The Philippines, 23 August 2021;
[6] The World Bank in the Philippines – Overview – Context, 2 May 2023.
[7] Labor Force Survey | Philippine Statistics Authority | Republic of the Philippines (psa.gov.ph)
[8] Philippines | Data (worldbank.org)
The applicant has shown his versatility throughout his working life, starting with construction work in the Philippines then gaining skills in the mining and oil and gas industries such as to be recruited to work as a [Occupation 1] in Australia. More recently he has worked in aged care. I do not accept the applicant will be denied the ability to earn a livelihood for any of the reasons in s 5J(1)(a). Even if he has difficulties finding employment I do not accept he faces a real chance of serious harm such as being denied the capacity to earn a livelihood of any kind, or denied the ability to subsist, for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
For these reasons, I find the applicants’ fear of persecution is not well-founded. I find none of the applicants meet the refugee criterion.
I have considered whether there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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. The harm or suffering brought on by the cruel or inhuman treatment or punishment, or degrading treatment or punishment, must be intentionally inflicted by a person or persons with an actual subjective intention to bring about the suffering by their conduct.
The Philippines is one of the most disaster-affected counties in the world, regularly experiencing severe tropical cyclones. Over 6,000 people died in the Philippines due to Typhoon Haiyan in November 2013[9], and I accept the country will experience future deadly typhoons. However, I do not accept the applicants have a personal risk from typhoons. I find, pursuant to s 36(2B), there is taken not to be a real risk of significant harm arising from typhoons because this is a risk faced by the population of the Philippines generally and is not faced by the applicants personally.
[9] DFAT, Country Information Report The Philippines, 23 August 2021.
The applicant provided medical evidence that he is currently receiving treatment for a number of medical conditions including type 2 diabetes, hypertension, asthma, and osteoarthritis. DFAT reports the Philippines has a universal health care system, however many Filipinos still struggle to access adequate healthcare, especially if they are poor or living in rural or remote areas. Those who can afford it usually take out private health insurance.[10] The applicant claims he may not be able to access the health care and medication he takes in Australia. There is nothing to indicate he would be refused health care with an intention to cause cruel or inhuman treatment or punishment, or degrading treatment or punishment. Further, harm resulting from the act of removal from Australia or illnesses arising on return to a receiving country is not significant harm.[11] Even if his health is adversely affected by returning to the Philippines, I do not accept he will suffer significant harm as defined in the Act.
[10] DFAT, Country Information Report The Philippines, 23 August 2021.
[11] CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699; GLD18 v MHA [2020] FCAFC 2.
The applicants expressed at the hearing that the Philippines was generally a violent country and they would not feel safe there. DFAT reports petty crime is common, and the homicide rate of 6.47 per 100,000 people (as at 2018) was one of the highest in the Asia-Pacific region. DFAT also reports extrajudicial killings occur against accused drug dealers and uses, activists, judicial officials, local government leaders, and journalists.[12] None of the applicants fit any of these profiles. Even noting they would returning after many years out of the country, thousands of other Filipinos do so every day after working abroad. DFAT reports people returning after several years’ absence are unlikely to face adverse attention on account of their absence, with the exception of those involved in international crime or terrorism.[13] I consider the applicants are ordinary Filipinos and I do not accept there is any evidence they would suffer a real risk of significant harm arising from ordinary crime in the Philippines.
[12] DFAT, Country Information Report The Philippines, 23 August 2021.
[13] DFAT, Country Information Report The Philippines, 23 August 2021.
I have found the applicants do not face a real chance of harm for reason of the applicant’s political opinion or expressing his views on Duterte, or from the NPA. Real chance and real risk has been found to equate to the same threshold. For the same reasons given above I find they do not face a real risk of significant harm for reason of the applicant’s political opinion or expressing his views on Duterte, or from the NPA.
I find there are not substantial reasons for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to the Philippines there is a real risk they will suffer significant harm.
Compassionate grounds and Ministerial Intervention
The applicants raised a number of compassionate grounds at the hearing and in their written statements as to why they should stay in Australia. I acknowledge the family came to Australia with an understanding they were on a pathway to permanent residency. I acknowledge the deep distress and guilt expressed at the hearing and in written submissions by the applicant, that he brought his children here when they were young, promised them a particular future, but they are living in an uncertain future and have been unable to pursue higher education. I acknowledge the children have all spent their formative years in Australia and are working here. The youngest child is proficient only in English. I acknowledge their integration into their local community. I acknowledge also past the past trauma suffered in particular by the second applicant during typhoons, her fears in returning to an area prone to such weather events, and the impact this has had on the whole family.
However compelling and compassionate these circumstances are, I have no discretion to make a favourable decision on these grounds. Only the Minister has the discretion, pursuant to s 417 of the Act, to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. It is open to the applicants to make a request directly to the Minister requesting he intervene in their case.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Carolyn Wilson
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.
…

[2024] AATA 3637

30 July 2024

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