1825268 (Refugee)

1825268 (Refugee) [2022] AATA 4965 (22 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tedros Alemaw Yabio
CASE NUMBER:  1825268
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Kate Millar
DATE:22 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and
(iii)that the grant of the visas is not prevented by s 91WA.

Statement made on 22 November 2022 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – member of particular social group – single mother – one child with autism spectrum disorder, intellectual and language impairments, another waiting for assessment for ADHD – mental health – capacity to subsist – race – Tigrayan – country information – bogus document – birth certificate for oldest child, claimed to be the child of ex-de facto partner and another woman – reasonable explanation – provided by father in circumstances of leaving third country – prevalence of gender-based violence – lack of support services – state of emergency – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (5), 36(2)(a), (b)(i), 65(1), 91WA
Migration Regulations 1994 (Cth), Schedule 2
CASES
AIB16 v MIBP (2017) 254 FCR 457
BGM16 v MIBP (2017) 252 FCR 97
BMK18 v MHA [2019] FCA 189
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

[The first applicant] is a citizen of Ethiopia, who came to Australia [in] June 2012 on a Prospective Marriage visa (Subclass 300) as a secondary applicant, claiming to be the niece of [Mr A].
[The first applicant] again claimed to be the niece of [Mr A] in a combined application for a Partner (provisional) and Partner (residence) visa. [The second applicant] claimed to be [Mr A]’s son. A Subclass 820 visa was granted in 2012, but then the Subclass 801 visa was refused on 24 April 2015. [The third applicant] was born in Australia.
On 2 April 2015, [Mr A] applied for a protection visa, naming [the first applicant] as his niece as a secondary applicant and [the second applicant] as his son. On being advised that as a niece of the primary visa application and the need to lodge an application in her own right, [the first applicant] lodged this application on 4 May 2015 with her daughter [the third applicant] as the secondary applicant
On 28 February 2018 [the first applicant] and [Mr A] advised they were in fact in a relationship and asked to be added to each other’s’ applications. It was advised that [the second applicant] is the son of [the first applicant]. [The second applicant] was added to [the first applicant]’s application. Since then, [the first applicant] has had another child, who is not a part of this application.
[The first applicant] and [Ms A] (referred to in this decsoin as her ex-de facto partner) have separated, with [the first applicant] seeking assistance of family violence services in her new location. [The first applicant] has three children. Of the children, the youngest has a diagnosis of autism spectrum disorder, with accompanying intellectual and language impairments.
A delegate of the Minister refused their visa applications on 10 August 2018, finding that [the first applicant] had minimal exposure to political activities and had delayed in seeking protection in Australia. The claims of the children to fear harm were found to be solely to enhance the prospects of [the first applicant] and he ex-defacto obtaining a protection visa. The delegate found the prospects of the children facing serious harm in Ethiopia was remote.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
background
[The first applicant] was born in [Town] in the Tigray region of Ethiopia, and was born in [Year 1]. She has [siblings]. Her parents both died from HIV/AIDS and [the first applicant] reports being bullied in the community as a result of perceptions that she was infectious or unclean.
[The first applicant] and her siblings went to live with an uncle in a different area of [Town]. This did not work out as he uncle’s family bullied her because her parents had died of HIV/AIDS, and her uncle told her to stay at the Church. She states she has not had any contact with her siblings since she left her uncle, however also later states that she is constantly concerned for her [siblings] and that she suffers stress and anxiety from tyring to help her family in Ethiopia
A friend organised for her to go to [Country 1] in [Year 2], and she met her ex-de facto partner in [Country 1].
After they had their eldest child [the second applicant], they planned how to leave [Country 1], and claimed that this was because of her ex-de facto partner’s political activities.
[The first applicant] has a cousin who was in Australia, and her ex-de facto partner came to Australia claiming that he intended to marry her cousin. [The first applicant] claimed to be his dependent niece and [the second applicant] was claimed to be the son of her ex-de facto partner and another person. They obtained a fraudulent birth certificate for their son to show his mother was another person and obtained a death certificate for the claimed mother. They claim that their relationship with this cousin deteriorated and was abusive, so they left.
While they had been on temporary partner visas, the permanent partner visa was refused. Her ex-de facto partner lodged an application for a protection visa on 2 April 2015, again naming her as his niece and their son as his son only. After being advised that a niece was required to make an application on her own behalf, on 4 May 2015 [the first applicant] lodged an application for a protection visa. In 2018 they advised the Department that they were in a de facto relationship and [the second applicant] was their child. They each requested to be added to each other’s applications for a protection visa as a secondary applicant. [The second applicant] lodged an application on 28 February 2018 to be added to [the first applicant]’s application for the visa as her son.
[The first applicant]’s second child [the third applicant] was born in Australia on [date]. [The first applicant] states the relationship with her ex-de facto partner was abusive and she left, travelling interstate. Her [third child], who is not included in this application, was born on [date].
With the breakdown of the relationship the applications have been considered separately. This is the application that was made by [the first applicant] as the primary visa applicant, naming [the second applicant] and [the third applicant] as secondary applicants.
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.
The most recent assessments prepared by the Department of Foreign Affairs and Trade (DFAT) is Country Information Report Ethiopia dated 12 August 2020.
Since this report was released, there has been an outbreak of conflict in the Tigray region. The Tribunal has also drawn from the UNHCR Position on Returns to Ethiopia issued March 2022,[1] and other recent reporting on the conflict in the Tigray region.
[1] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Ethiopia, March 2022, available at: 21 November 2022]
CONSIDERATION OF Claims and evidence
[The first applicant] has actively misled immigration over many years by claiming she was the niece of her ex-de facto partner and that their son was the son of another person. This was so that they could migrate to Australia. This accordingly affects the weight that can be placed on her statutory declarations.
However, the Tribunal does accept that she is Tigrayan, as she has consistently claimed this is her ethnicity and has used a Tigrinya interpreter throughout her dealings with the Department and with health services. The Tribunal accepts she has separated from her ex-de facto partner and has relocated interstate. She has the care of three children. Her youngest child has autism, and this has been established by [a] Hospital in Adelaide. She would return as a single mother of a child with autism.
[The first applicant] has provided evidence of a mental illness with major depression and anxiety.
The Tribunal accepts that [the first applicant] is Tigrayan.
Single Mothers
If she were to return, [the first applicant] would return as a single mother of three children. DFAT report that Ethiopia is a deeply religious community, reflected in strong religious observance across all faiths.[2]
[2] DFAT [3.26]
DFAT report:
… women in Ethiopia face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common. DFAT assesses support services for women escaping from domestic violence have improved but are insufficient overall.[3]
[3] DFAT, at [3.67]
UNHCR report in relation to the conflict:
UN human rights experts have also expressed grave concern about widespread and documented incidents of sexual and gender-based violence committed against women and girls in the Tigray, Amhara and Afar regions of Ethiopia by parties to the conflict.[4]
[4] UNCHR, at [8]
Another study reported that divorced or widowed women may be subjected to rape and traditional practices that force women to remarry or have sex with male family or community members.[5] This study also found that for separated women, their sexuality was emphasised and is thought of as uncontrolled and unpredictable and therefore threatening to the community, being accused of trying to look for men, and this was heightened by taboo about sex outside of marriage. Single divorced or widowed women reported being ostracised and of isolating themselves.[6]
[5] “People insult her as a sexy woman’: sexuality, stigma and vulnerability among widowed and divorced women in Oromiya, Ethiopia', Culture Health ＆ Sexuality, 03 May 2014, p. 917, 20221019124103
[6] ibid
The Tribunal considers this reflects the position of a single woman with children. The study encompassed divorced and widowed women, and the Tribunal considers this situation would be heightened for a person with children who had not married.
Mental Health
[The first applicant] provided a medical report from her general practitioner dated 25 October 2022 that confirms her youngest daughter has been diagnosed with autism spectrum disorder and states her middle child [the third applicant] is awaiting assessment for ADHD. Her doctor reports [the first applicant] is on antidepressant and anxiolytic medication and is seeing a psychologist
[The first applicant] provided a letter of support from family violence services stating she continues to participate in individual sessions and group counselling sessions relating to her experience of family violence.
The Tribunal finds [the first applicant] suffers depression and anxiety and this would be exacerbated if she were to return to Ethiopia.
Mother of a child who has autism
Children with autism are reported to be hidden at home by their mothers. Mothers are reported to be often blamed for their child’s autism and subject to judgement and harassment.[7] Some parents are reported to isolate themselves because of the stigma and its impact on their mental health.[8]
[7] Perceptions and experiences of stigma among parents of children with developmental disorders in Ethiopia: A qualitative study - ScienceDirect
[8] ibid
Due to a lack of services, mothers of children with autism have to stay at home to care for their children and are unable to work to support their families.
Autistic children and their parents also experience stigma (such as rejection, negative judgments and lack of support) within their own family as well as from the wider public. Mothers who often take the main responsibility of caring for their autistic child experience enormous challenges including exhaustion, leaving their work or working less hours and foregoing their career to care for their child. The fact that mothers are the primary caregivers of their autistic child also means that in the absence of support services mothers are forced to stay at home with their child without social life or being able to work outside home. [9]
[9] Analysis + Interview: Do We Care? The Challenges of Addressing Autism in Ethiopia - Addis Standard
[The first applicant] provided an assessment form the [Hospital] to show that her [youngest child] has autism spectrum disorder with intellectual and language impairments. While [the child] also has strengths, the focus for the purpose of this decision is on the behaviour that would be obvious to others and what this may mean for her mother if she were to return to Ethiopia. In terms of behaviour that would be evident to others, it is reported that [the child]’s verbal output is characterised by frequent humming/singing and jargon. She uses a few single words with reduced intelligibility and squealed when upset. She is reported to get upset when finishing activities, and persistently spitting out bubbly saliva.
The Tribunal finds [the first applicant] would experience stigma and with the lack of support services would be unable to work because of her care of [the child].
Tigrayan ethnicity
[The first applicant] is Tigrayan, and the place where she has lived in Ethiopia is in Tigray.
UNHCR reports:
On 4 November 2020, the Government of the Federal Democratic Republic of Ethiopia announced a military operation against the Tigrayan People’s Liberation Front (TPLF) and its forces. This followed the escalation of tensions after regional elections held in the Tigray region on 9 September 2020 in defiance of a federal order postponing balloting nationwide due to the COVID-19 pandemic. In early October 2020, the Federal Government cut ties with the Tigray region, and the Upper House of Parliament voted to suspend budgetary aid to Tigray’s executive.
UNHCR report that following the declaration of a state of emergency in Ethiopia:
According to OHCHR, between 22 November 2021 and 28 February 2022 more than 15,000 people were arbitrarily arrested and detained in connection with the state of emergency; mostly ordinary citizens of Tigrayan ethnicity. On 16 November 2021, OHCHR reported mass arbitrary arrests targeting people reportedly of Tigrayan origin in Addis Ababa, Gondar, Bahir Dar and elsewhere with at least 1,000 people detained in a one-week period. According to OHCHR, individuals were believed to have been detained by police officers on suspicion of being linked to the TPLF, but many detainees were not informed of the reasons for their arrest, were not brought before a court of law, and were not formally charged with an offence.16 Among the detainees were UN staff.17 OHCHR expressed its concern about reports of ill-treatment in detention. In December 2021, OHCHR reported the detention of some 83 people, including four women, in the Guji zone in the Oromia region, in connection with the state of emergency. On 8 and 9 December 2021, about 1,500 people of Tigray and Gumuz ethnicity were reportedly detained in Asosa, Benishangul-Gumuz region, under the state of emergency.
As submitted by [the first applicant]’s representative, BBC and Human Rights Watch report Tigrayans in Ethiopia reporting harassment, detention and discrimination. There are reports that Tigrayans in Addis Ababa face discrimination and arbitrary arrest.[10] The BBC reported recently that there was a risk of a ‘civilian bloodbath’ in Tigray,[11] but also reported on 2 November 2022 that a surprise truce had been declared.[12] The BBC sounds caution on the truce as it is noted that Eritrean forces accused of some of the worst abuses were not bound by this truce.
[10] Ethiopia's Tigray conflict: Mass arrests and ethnic profiling haunt Addis Ababa - BBC News
[11] Ethiopia's Tigray conflict: Civilian bloodbath warning as offensive escalates - BBC News
[12] Ethiopia's Tigray conflict: Truce agreed - BBC News
The Tribunal finds [the first applicant] faces a real risk of harm including arbitrary detention, sexual assault and discrimination due to her race if she were to return to Ethiopia.
Relocation
UNHCR report:
In the current circumstances, with ongoing conflict and violence in parts of the country, large-scale internal displacement, and severe humanitarian needs, UNHCR does not consider it appropriate for States to deny persons from Ethiopia international protection on the basis of an internal flight or relocation alternative.

In addition, reports from the BBC state that Tigrayans are also at risk in Addis Ababa with harassment and detention of Tigrayans.
The Tribunal finds that combined with [the first applicant]’s status as a single mother of three children, and as a single mother of a child with autism spectrum disorder, this applied to all areas of Ethiopia.
The Tribunal finds that it is not possible for the applicants to relocate.
Conclusion
To be a refugee within the meaning of s 5H of the Act, [the first applicant] must be outside her country of origin, and because of a well-founded fear of persecution is unwilling or unable to avail herself of the protection of his or her country.
“Well-founded fear of persecution” is defined in s 5J of the Act. It requires that the person fears being persecuted for reasons of (among other) race and membership of a particular social group (s5J(1)(a), that there will be a real chance that if returned the person will be persecuted n(s5J(1)(b)) and that the real chance of persecution relates to all areas of the receiving country (s5J(1)(c)).
The Tribunal finds that [the first applicant] would face a real chance of serious harm, being a threat to her life or liberty, sexual assault and harassment as contemplated by s 5J(5) of the Act. It finds she would suffer denial of capacity to earn a living of any kind threatening her capacity to subsist (s.5J(5)(d) of the Act).
The essential and significant reasons for the harm are [the first applicant]’s race and her membership of particular social groups, being single mothers and as a single mother with a child with autism spectrum disorder. There is a real chance of serious harm in all parts of Ethiopia (s.5J(1)(c).
As [the first applicant] meets s 5J(1)(a)(b) and (c), she has a well-founded fear of persecution. And as she otherwise meets the requirements of s 5H of the Act, is a refugee. It follows that she meets the requirement for a protection visa in s 36(2)(a) of the Act.
The Tribunal is satisfied that [the second applicant] and [the third applicant] are members of her family unit as they are her children, and finds that [the second applicant] and [the third applicant] meet s.36(2)(c) of the Act.
Section 91WA
Under s 65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s 91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a ‘bogus document’ as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s 91WA(2).
The Full Federal Court has held that s 91WA(1)(a) is directed to the provision of bogus documents during or in connection with an application for a protection visa: BGM16 v MIBP (2017) 252 FCR 97 at [8], [81]. However, the provision is not limited to cases where the false information contained in the bogus document is relied upon by an applicant. There is no requirement for a decision-maker to ascertain the manner in which a bogus document is given and relied upon, and which information in the document is false and which is accurate: BMK18 v MHA [2019] FCA 189 at [41]–[42].]
Bogus document, in relation to a person, means a document that the Minister (or the Tribunal) reasonably suspects is a document that purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly: s 5(1).
The Federal Court has held that a reasonable explanation for the provision of a bogus document connotes an explanation that is not fanciful, that is believable in the circumstances, which has sufficient rational connection to how and why the bogus document was provided, and which is accepted as genuine: AIB16 v MIBP (2017) 254 FCR 457 at [91]–[92].]
Given the migration history, a bogus birth certificate was provided for [the second applicant]. The document was provided by [the first applicant]’s ex-de facto partner. They do not appear on the file before me.
To any extent it is necessary, the Tribunal finds that [the second applicant] has a reasonable explanation for the provision of this document, as it was provided by his parents on his behalf in circumstances of leaving [Country 1].
decision
The Tribunal remits the matter for reconsideration with the following directions:
(i)the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
(iii)the grant of the visas is not prevented by s 91WA.
Kate Millar
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 4965

22 November 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Remedies

Natural Justice