1826114 (Refugee)

1826114 (Refugee) [2023] AATA 4482 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  1826114
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Kate Chapple
DATE:19 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2023 at 11:58am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – homosexuality/bisexuality – former wife and children in Solomon Islands – currently in a relationship with a woman in Australia – credibility concerns – vague, evasive and inconsistent evidence – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application dated 20 November 2015.
Letter dated 29 November 2015 from a person named as the applicant’s wife claiming that she and her two children left the applicant after finding out he was having a sexual relationship with another man.
Letter dated 30 November 2015 from a person named as the applicant’s father claiming the applicant had a relationship with a man before coming to Australia and his wife and children left him.
Letter from a Solomon Islands community elder and acquaintance of the applicant regarding cultural and religious attitudes to gay relationships and associated statutory declaration dated 29 January 2016.
Undated letter from a person named as the applicant’s uncle claiming that the applicant is at risk of harm.
Other departmental records:
Decision record relating to the delegate’s refusal decision.
Interview audio file.
Case file.
Internal records relating to the applicant.
Application for review
Application for review dated 7 September 2018.
Letter dated 6 September 2018 from a person named as the applicant’s father supporting the applicant’s application.
Letter dated 26 August 2018 from a member of the Solomon Islands community in [Australian Town 1] attesting to the applicant’s character.
Letter dated 31 August 2022 from the applicant to the Australian Minister for Immigration, Citizenship and Multicultural Affairs.
Statutory declaration dated 30 August 2023 by a person named as the applicant’s female partner attesting to having been in a relationship with the applicant since August 2018 and their shared intention to marry.
Letter dated 31 August 2023 from a person named as a friend of the applicant attesting to the applicant’s character.
Letter dated 31 August 2023 from a member of the Solomon Islands community in [Town 1] attesting to the applicant’s character and expressing concerns for his safety in detention.
Email dated 1 September 2023 from the applicant to the Minister re-sending his letter dated 31 August 2022 and appealing for action in relation to his visa status.
The Tribunal wrote to the applicant inviting him to attend a hearing on 18 October 2023 and to provide pre-hearing submissions. Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing with the assistance of an interpreter.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 18 October 2023, with the assistance of an interpreter (also in person) in the Pidgin and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
17.1.The Tribunal asked the applicant to explain his relationship with the woman who gave the statutory declaration dated 30 August 2023. He said she is his girlfriend, they met in 2018 in [Town 1], and they’ve lived together there since late 2020. He’s just been staying in [Town 1], not working.
17.2.The Tribunal read the contents of the statutory declaration to the applicant set out below (no corrections) and asked him if he agreed with it. He said he doesn’t agree because he doesn’t know what will happen; that it’s her statement, not his. He doesn’t know her immigration status, she’s from Solomon Islands, and is not an Australian citizen. He didn’t tell the Department about the relationship because he didn’t know where it was going.
I met [the applicant] and we stay together as partners for at least 5 years (since 2018, August). [The applicant] and I have mutually agreed to stay in Australia and live our live and planned our wedding soon this year. Therefore, as a partner I would like [the applicant] to stay with me here in Australia.
17.3.The Tribunal referred to the applicant’s letter to the Minister dated 31 August 2022, in particular the section where he stated he was in a relationship with a named woman and they were planning their wedding in Australia soon. The Tribunal asked the applicant if he agreed with his own words. He said he doesn’t know what will happen, he was just trying to get a substantive visa so he can stay in Australia. The Tribunal asked the applicant if the substantive visa he has in mind is a partner visa. He said he’s not sure what’s required for that visa, he just wants a visa that will allow him to stay and work.
17.4.The Tribunal asked the applicant the basis on which he is applying for protection. He said because he is homosexual. The Tribunal queried how this is consistent with him being in a 5 year relationship with a woman and the assertions in the documents that they intend marry. He said he still has homosexual relationships, as he did before he met his partner, more of a social thing, at nightclubs in [Town 1] and [City 1]. He said his partner knows about these relationships and if she wasn’t happy about it she wouldn’t stay.
17.5.The Tribunal asked the applicant if he’d been married in Solomon Islands. He said he didn’t know whether he was being asked about a traditional or legal marriage. The Tribunal rephrased and asked him how long his relationship with his wife was. He said from 2005 to maybe 2009, and they have two children now aged [age] and [age].
17.6.The Tribunal asked the applicant about what occurred in Solomon Islands. After repeating the question a number of times, the applicant said he and another man were drinking one night in a night club, he can’t remember when, maybe 2009 or 2010, and they started an affair. Maybe a few months later, he couldn’t really remember, his wife’s brother saw the two of them together in the [named] bar in [City 2]. The brother-in-law was really angry and approached them, telling them what they were doing was wrong. Then he thinks the brother-in-law may have punched him. Later he added that people at the bar gathered to stop the fight and security came. After the incident, the applicant didn’t see his male companion again because he was too scared.
17.7.The brother-in-law told the applicant’s wife about the incident at the bar and she left with the children. That was the end of the marriage. The Tribunal asked the applicant to clarify the timing. He said he really can’t remember the dates.
17.8.There were other people at the bar with the brother-in-law the night of the incident. The applicant didn’t know them.
17.9.The Tribunal asked the applicant about his travels to [Country 1] and [Country 2]. He said he went fruit picking in [Country 1] and transited through [Country 2]. He thinks he went in 2007 and again in 2008. The incident at the bar occurred after he returned to Solomon Islands from [Country 1] the second time.
17.10.The Tribunal asked the applicant what he did in Solomon Islands after returning from [Country 1] the second time. He said he went to live with his uncle in the [Province 1] to get away from what happened to him at the bar in [City 2] and to be safe because people like him aren’t accepted in Solomon Islands.
17.11.The applicant decided to go to Australia because it’s free here. He came here on a visitor visa, intending to stay. He accepted that he overstayed his visa and lived in Australia unlawfully for 5 years until he applied for protection. He knew it was illegal, but it just felt free to be here, and better than being in Solomon Islands. He survived with the help of Solomon Island communities in Australia, and helping people the island way; he knows it’s a hard life but he has to do it, he has to stay here, he can’t go back.
17.12.The applicant didn’t know about protection visas, some friends told him. He decided to go into Home Affairs Brisbane and surrender himself and apply for a protection visa; he knew he couldn’t live unlawfully any longer.
17.13.The Tribunal asked the applicant what connections he has in Solomon Islands. Initially he said he had no connections, then said he was in contact with his father and his children. The Tribunal asked the applicant if he sent money back to the Solomon Islands. He said that he didn’t, not for 5 to 6 years. The Tribunal queried whether the money came from working. The applicant seemed to infer that it came from the Solomon Island community in Australia, however his answer was unclear.
17.14.The Tribunal asked the applicant what he thought would happen to him if he returned to Solomon Islands. He said he still fears being harmed from his ex-wife’s side of the family as a result of the incident. What happened is still going to be remembered and not accepted. He said, who knows what will happen.
17.15.The Tribunal asked how the applicant would describe his sexuality. He said it’s something in him, he can’t explain who he is.
17.16.The Tribunal asked the applicant if he returned to Solomon Islands whether his partner would go with him. He said no, she wouldn’t want to go back there, it’s a hard life. His reason is different; he fears going back because of his sexuality.
17.17.The applicant asked the Tribunal why he couldn’t stay in Australia after all this time, and get work rights. The Tribunal explained that he must comply with Australian law, the Tribunal is unable to provide him with advice, it can only deal with his protection visa application matter. The Tribunal strongly encouraged the applicant to speak to the Department about his visa options and to get legal advice about his prospects.
Country information
The US Department of State Solomon Islands 2022 Human Rights Report provides (inter alia) that:
Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics
Criminalization: Sodomy is illegal, as are “indecent practices between persons of the same sex.” The maximum penalty for the former is 14 years’ imprisonment and five years’ imprisonment for the latter. There were no reports of arrests or prosecutions directed at lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons under these provisions, and authorities generally did not enforce these laws.
Violence Against LGBTQI+ Persons: There were no reports of violence against persons based on sexual orientation or gender identity, although stigma may have hindered reporting abuses.
Discrimination: There were no antidiscrimination ordinances that would protect LGBTQI+ persons. There were no reports of open discrimination against LGBTQI+ persons but lack of reports may be due to sociocultural pressure and stigma.
Restrictions of Freedom of Expression, Association, or Peaceful Assembly: While there were no ordinances imposing such restrictions, sociocultural pressure and stigma effectively blocked any public discussion of LGBTQI+ problems.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.
In considering the claims and evidence, the Tribunal has taken account of:
20.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
20.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
20.3.The country information set out in this decision record.
In particular, the Tribunal notes the following credibility guidelines:
21.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
21.2.[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear[1] of persecution or significant harm.
21.3.[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.[2] The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
21.4.[24] All claims, particularly those of a sensitive nature should be carefully considered in a respectful and culturally sensitive way. Claims relating to a person’s sexual orientation or to sexual assault or domestic violence, require particularly sensitive investigation. The tribunal should consider who is present at the time the evidence is to be given and whether it would be appropriate for an interpreter of a particular gender to assist with the hearing.
[1] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.
The Tribunal notes that notwithstanding the applicant provided to the Tribunal documents (his partner’s statutory declaration and his letter to the Minister) claiming a 5 year relationship between him and his partner and a shared intention to marry, the applicant in his oral evidence was not prepared to affirm their future plans. Rather, the Tribunal observed the applicant was vague and non-committal.
The Tribunal notes the applicant’s oral evidence that he is claiming protection on the basis that he is homosexual and that homosexuality is not accepted in Solomon Islands.
The Tribunal notes the applicant’s oral evidence that he had a traditional and/or legal marriage to a woman in Solomon Islands from approximately 2005 to 2009, though he is unsure about the dates, and they have two children together.
The Tribunal notes the applicant’s oral evidence that he had a relationship with a man in Solomon Islands, however he couldn’t remember whether it was 2009 or 2010.
The Tribunal notes the applicant’s oral evidence initially that he thinks he may have been punched by the brother-in-law at the bar, and then later that people in the bar gathered to stop the fight and security came.
The Tribunal notes the applicant’s oral evidence that he didn’t see his male companion again after the incident in the bar.
The Tribunal notes the applicant’s oral evidence that the incident in the bar occurred after he returned from [Country 1] the second time.
The Tribunal notes the applicant’s oral evidence that when he returned from [Country 1] the second time he went to live with his uncle in the [Province 1].
The Tribunal notes that when it was pointed out to the applicant that a 5 year relationship with a woman in Australia and written expressions of a shared intention to marry suggested an inconsistency with his claims to be homosexual, the applicant’s evidence is that he continues to have homosexual relationships socially, his partner is aware, and if she’s not happy she wouldn’t stay in the relationship.
The Tribunal notes the applicant did not apply for protection until 5 years after his latest arrival in Australia, having spent those years following the expiration of his visitor visa as an unlawful non-citizen.
The Tribunal considers the applicant’s oral evidence overall vague, evasive and inconsistent, and therefore lacks credibility.
The Tribunal does not accept that the incident in the bar in [City 2] occurred for the following reasons:
33.1.The applicant can’t remember whether the incident occurred in 2009 or 2010 notwithstanding claiming it is the central cause of his ongoing fear of returning to Solomon Islands.
33.2.The applicant initially not being sure about being punched by the brother-in-law, he later stated there was a fight.
33.3.The applicant stated that the incident occurred after he returned from [Country 1] the second time while also stating that he lived with his uncle in the [Province 1] from when he returned from [Country 1] the second time to when he departed Solomon Islands for Australia.
33.4.The applicant delayed his protection visa application for 5 years notwithstanding claiming that he left Solomon Islands in fear of his life because he is a homosexual and was caught out in public.
The Tribunal considers the applicant fabricated the incident and used it as the basis for his protection claim.
The Tribunal notes the various letters from the applicant’s wife, father and uncle provided by the applicant as supporting evidence of the incident having occurred and of the applicant’s homosexuality.
The Tribunal considers it is likely the applicant’s wife, father and uncle were supportive of the applicant coming to Australia and earning money so that family members in Solomon Islands could benefit, and they willingly provided letters that accorded with the applicant’s fabricated claim.
The Tribunal affords the letters no weight.
The Tribunal notes the letter from the Solomon Islands community elder and acquaintance of the applicant.
The Tribunal accepts the comment in the letter that “Solomon Islands is a Christian community and strongly discourages gay relationships” accords with the country information. The Tribunal considers however that the comments relating to the applicant are likely to be what the applicant told the elder to write so as to bolster his protection claim, and therefore to that extent the Tribunal affords the letter no weight.
The Tribunal accepts the applicant has a former wife and children in Solomon Islands.
The Tribunal considers it is likely the applicant is in a relationship with a woman in Australia. However, given the lack of credibility of the applicant’s oral evidence and supporting documentary evidence discussed above, the Tribunal considers it is likely the woman’s statutory declaration and the applicant’s letter to the Minister have been written with the intention of enhancing the applicant’s prospects of obtaining a substantive visa rather than conveying the facts of his circumstances.
The Tribunal notes the country information reports that homosexual and bisexual practices are illegal in Solomon Islands, and while there are no reports of the laws being enforced or of violence or discrimination against people based on their sexuality, they may experience sociocultural pressure and stigma.

The Tribunal considers it is likely the applicant’s oral evidence that he continues to have homosexual relationships with the knowledge and acquiescence of the woman was fabricated in the moment in an attempt to maintain his protection claim.
The Tribunal considers there is no credible evidence before it to support a finding that the applicant had a homosexual liaison in Solomon Islands.
The Tribunal considers there is no credible evidence before it to support a finding that the applicant is homosexual or bisexual.
The Tribunal does not accept the applicant fears that if he returns to Solomon Islands he would be targeted and harmed because of his homosexuality/bisexuality.
The Tribunal does not accept that if the applicant returns to Solomon Islands he would be targeted and harmed because of his homosexuality/bisexuality or for any other reason.
The Tribunal notes the various letters attesting to the applicant’s character.
The Tribunal does not consider these letters relevant in assessing the applicant’s protection claim.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
51.1.The applicant is a citizen of Solomon Islands and non-citizen in Australia.
51.2.The applicant has no credible claims for protection under the refugee or complementary protection criterion set out in the applicable law.
51.3.If the applicant is returned to Solomon Islands, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
51.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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 4482

19 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction