1826318 (Refugee)

1826318 (Refugee) [2023] AATA 1455 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Andrea Main
CASE NUMBER:  1826318
COUNTRY OF REFERENCE:                   Myanmar
MEMBER:Paul Noonan
DATE:29 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 29 March 2023 at 12.43pm

CATCHWORDS
REFUGEE – protection visa – Myanmar – religion, imputed political opinion and membership of particular social group – Rohingya Muslim – claim of statelessness not accepted – returns from third country to visit father – irregular maritime arrival – husband and children Australian citizens – returned failed asylum seeker and unaccompanied woman – country information – coup, violent suppression of protests and widespread, ongoing conflicts – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (3), (5), 36(2)(a), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] who claims to be stateless, applied for the visa on 6 June 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant is stateless or Rohingya as claimed, and therefore it follows that she is not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 25 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The applicant was represented in relation to the review. The representative, Ms Andrea Main, attended the Tribunal hearing.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant meets any of the alternative criterion in s 36(2)(a), (aa), (b), or (c), that is, whether she is owed protection under the ‘refugee’ criterion or complementary protection criterion, or is otherwise a member of the same family unit as an individual who meets these requirements. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The applicant claims that she was born on [Date]. She provided a copy of her UNHCR Identification card issued on [in] 2011 ([Number]) to the Department, a copy of which is retained on the Department file. She claims to be a stateless Rohingya Muslim.
The delegate found that the applicant’s claim to be a stateless Rohingya Muslim was not credible and found that she was a Muslim citizen of Myanmar.
The applicant told the Tribunal that she is a [Age]-year old woman born in Yangon, Myanmar (Burma). She can read, write and speak the Burmese language as well as limited English. The applicant stated that she is of the Sunni Muslim faith. She has submitted evidence including an Australian marriage certificate, birth certificates and citizenship papers that reflect that she is married to an Australian citizen and that she is now the mother of [Australian citizen children]. The applicant claimed to have come from [Country 1] to [Country 2] and then to Australia on a boat without a visa or passport.
The applicant claims that she is stateless because of her Rohingya ethnicity. She stated that her mother left the applicant at the age of four in the care of her three older sisters and then relocated to [Country 1] in [Year]. The applicant and her older siblings later joined their mother in [Country 1] in 2006.
The applicant claims she did not participate in schooling; however, she was registered with UNHCR and attended a school run by the organisation for a short amount of time. The applicant claims she learnt how to read and write Burmese from her older siblings at home.
The applicant claims to fear persecution on the grounds of her Rohingya ethnicity, her Sunni Muslim faith, as an unaccompanied Rohingya Muslim woman and because she left the country illegally and came to Australia.
The Tribunal accepts that the applicant is fluent in the Burmese language. It also accepts that she grew up in Yangon in Myanmar and spoke Burmese growing up. The applicant’s attested history is that she departed Myanmar in 2006 for [Country 1] where she registered with the UNHCR. It is undisputed that the applicant subsequently voluntarily returned to Myanmar for the purpose of visiting her father. The Tribunal put to the applicant that it may find it implausible that a person genuinely fearing persecution for the reasons claimed would voluntarily return to the place that they claim to fear persecution in. The applicant stated that it was important to her to visit her father. The Tribunal questioned the applicant about the method she had used to cross the Myanmar border three times. The applicant submitted to the Tribunal that she used the services of a broker each time, facilitated by her sister. She submitted that she and her sister were hidden in a car. The Tribunal put to the applicant that her ability to cross the Myanmar border unimpeded on several occasions may reflect that she had some form of official identification to facilitate this. The applicant merely claimed that the broker took care of everything. When asked how she paid and arranged for it, the applicant claimed her sister took care of everything.
The Tribunal accepts that the applicant is of Muslim background and that she lived in Yangon, Myanmar. The applicant is fluent in Burmese. She returned to Myanmar for a period of time for the purpose of visiting her father after having lived as a registered refugee in [Country 1]. The Tribunal considers the applicant’s evidence, that she and her sister had voluntarily returned to Myanmar to visit her father, highly unconvincing and reflective of the proposition that she did not genuinely fear persecution at that time. Further, the Tribunal found her evidence that she and her sister avoided the authorities by concealing themselves in a car each time they crossed the border to be highly implausible. Further, and as discussed at hearing, the Tribunal found her evidence that her sister facilitated their passage using agents and bribes to be highly implausible given their claimed background as refugee seekers living illegally in [Country 1] without access to financial resources. In totality, it is far more plausible that the applicant travelled each time across the Myanmar border using official Myanmar identification and the Tribunal is satisfied that this is the case. The Tribunal is satisfied that the applicant is a citizen of Myanmar and that she is not stateless. Accordingly the Tribunal assesses her claims against Myanmar as the country of reference and the receiving country.
Since the applicant first came to Australia, there has been a significant deterioration in the general security situation in Myanmar. The Tribunal has had regard to the applicant’s most recent statement, dated 21 November 2022, setting out her concerns with respect to the situation that she would face in Myanmar as a Muslim woman returning after spending considerable time in Australia. The most recent DFAT Country Information Report, published on 11 November 2022, sets out significant concerning information with respect to a person with this profile returning involuntarily to Myanmar. The report sets out that in 2021 there was a military coup in Myanmar which sparked widespread protests that were violently supressed by the military. This has resulted in ongoing and widespread fighting in the country.
DFAT assesses that the military regime has no direct control over large parts of the country, and Action on Armed Violence, a non-government organisation, estimates that at least one-third of the country is in the hands of ethnic rebel groups. Armed groups operate along Myanmar's borders with China, Thailand, Laos, Bangladesh and India. The ‘Bamar heartland’, including Mandalay, Yangon, Sagaing and Magway, was once relatively peaceful, but since the coup this region has seen a sharp rise in violence, as local People’s Defence Forces (PDFs) and ethnic armed organisations clash with security forces, and the military regime targets civilians that they perceive are supporting their enemies.[1]
[1] DFAT Country Information Report, 11 November 2022, p. 13
Since the coup, Yangon and Mandalay have seen persistent violence for the first time in recent Myanmar history. For instance, in February 2022, there were 118 improvised explosive device (IED) incidents and 34 attacks involving small arms in Yangon, while over the same period there were 47 IED incidents and 21 small arms attacks in Mandalay. IED attacks have targeted government buildings or security forces, as well as businesses perceived as having connections to the military regime. Gun violence includes targeted shootings by PDFs of security forces and perceived collaborators, and raids by security forces of PDF hideouts.[2]
[2] Ibid, p.14-15
With respect to the situation for Muslims in general in Myanmar, DFAT assesses as follows:
3.27 There are a number of distinct Muslim communities living throughout Myanmar, including the Kaman, Pantay, Pashu, Rohingya and Zerbadee. Most follow the Sunni sect. According to the 2014 census, Muslims made up approximately 4 per cent of the population, although this figure undercounts Rohingya Muslims, who were effectively excluded from participating. The majority of Muslims live in northern Rakhine State, but there are also Muslim communities in Yangon, Ayeyarwady, Magway, and Mandalay.
3.28 Muslims in Myanmar experience discrimination and restrictions on their ability to practise their faith. They are underrepresented in the public sector. There were no Muslim ministers under the previous NLD government, nor are there any Muslim members of the regime’s SAC. Muslims are reportedly excluded from a range of government jobs, including as public school teachers and health workers. In recent decades many mosques have been burned down or vandalised, especially in Rakhine State, and authorities have prevented communities from rebuilding them. In June 2021, a mosque in Ahlone Township, Yangon was burned down in what the Burma Human Rights Network says was a deliberate arson attack. One source told DFAT more than 100 mosques had been destroyed and no new mosques built in the country since 1962. Authorities often withhold permission for Muslim worshippers to publicly celebrate religious events including Ramadan. In satellite towns without established mosques, Muslims are often forced to pray in makeshift prayer houses, which are sometimes too small to accommodate the number of worshippers. A report by the Burma Human Rights Network in 2017 found at least 21 villages had been declared ‘Muslim-free zones’ by local authorities, with signs erected in some villages stating ‘Muslims are not allowed to buy or rent properties’.
3.29 Muslims are frequently denied basic rights and services on the basis of their religion. An estimated 65 per cent lack citizenship cards, and many find it difficult or impossible to obtain them, even if they are theoretically qualified. Reasons vary, ranging from the Muslim applicant being unable to provide extensive and often difficult-to-obtain documentation to prove family lineage before 1824, to the refusal of immigration authorities to register a Muslim person as Bamar, the majority ethnicity. Some have been required to choose a ‘foreign’ ethnicity (such as Bengali) to self-identify as Muslim on applications for citizenship cards. Under the ‘Preservation of Race and Religion Laws’, a Muslim man is not allowed to marry outside of his religion.
3.30 Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. Since 2011, ultranationalist Buddhist movements such as Ma Ba Tha (the Association for the Protection of Race and Religion) and the 969 Movement (an anti-Islamic religious group) have been influential in fomenting anti-Muslim hatred in Myanmar. During that time, Ashin Wirathu, a prominent monk and leader of the Ma Ba Tha movement, repeatedly incited violence against Muslims in speeches and online, including by spreading conspiracy theories that Muslims were planning to take over the country by marrying and converting Buddhist women. In 2018, Wirathu’s hate speech led Facebook to ban him and the national monastic council to bar him from speaking publicly. Ma Ba Tha was banned in 2017 and afterwards rebranded as the Buddha Dhamma Philanthropy Foundation. Wirathu, who had been in hiding since May 2019, turned himself into authorities in November 2020 and was arrested for ‘exciting disaffection against the government’. The military regime released him in September 2021.
3.31 There are strong links between ultranationalist Buddhism and the military. Soldiers are reportedly indoctrinated to see Islam as an existential threat to the Union of Myanmar. A 2018 New York Times investigation found anti-Muslim social media disinformation campaigns had been carried out on a large scale by the military. Anti-Muslim propaganda has continued in the aftermath of the 2021 coup. For instance, in December 2021, military aircraft dropped leaflets on villages in Sagaing claiming the Organisation of Islamic Cooperation was providing money and ammunition to support the killing of monks and insulting of Buddhism. Pro-military Facebook users have also made false claims linking PDFs and the political opposition to Islamic extremist groups such as ISIS and the Taliban.
3.32 DFAT assesses that Muslims in Rakhine State, regardless of ethnicity, face high levels of official and societal discrimination and a moderate risk of violence on the basis of their religion and perceived association with the Rohingya (who face specific, higher risks). DFAT assesses that Muslims outside of Rakhine State face moderate levels of official and societal discrimination and a low risk of violence on the basis of their religion.[3]
[3] Ibid, p.23-24
The Tribunal accepts that, should the applicant be required to return to Myanmar, she would do so alone, as her husband and children are Australian citizens. DFAT assesses that the experience of women in Myanmar varies with factors such as ethnicity, religion, socioeconomic status, and whether they live in an area affected by long-term conflict. Nevertheless, women across the spectrum of Myanmar society are affected by issues such as high rates of domestic and gender-based violence, low rates of economic participation, exclusion from decision-making and lack of state protection. All these issues have been exacerbated by the impacts of the coup. DFAT further assesses the following with respect to women, especially applicable to women from religious minorities such as the applicant:
3.80 The military has long been accused of gender-based violence and using rape as a weapon of war. Human Rights Watch reported ‘dozens or sometimes hundreds’ of cases of rape by Tatmadaw soldiers during the 2017 violence against the Rohingya in Rakhine State, and actual figures were likely much higher. In June 2021, the UN Special Representative on Sexual Violence in Conflict expressed grave concern over ‘patterns of sexual violence perpetrated by the military against women from ethnic and religious minority groups, as well as against individuals on the basis of their sexual orientation and gender identity’ including in Chin, Kayah and Rakhine States. Since 2017, Myanmar has been listed by the UN Secretary General as a party ‘credibly suspected of committing or being responsible for patterns of rape or other forms of sexual violence in armed conflict’. Since the coup, local media have reported on soldiers committing sexual violence against civilians in conflict areas. For instance, in Chin State in November 2021, a 27-year-old woman and her pregnant 30-year-old sister-in-law were raped in their homes by soldiers following clashes between troops and local resistance forces. In the same month, a soldier from Light Infantry Battalion 336 raped a 62-year-old woman in Shan State. Soldiers who commit sexual violence are rarely prosecuted, and sources told DFAT a culture of ‘extreme impunity’ prevailed.
3.81 Reports suggest that since the coup, women who are detained by the security forces for opposing the regime are frequently subjected to sexualised threats and sexual harassment, and in some cases to sexual assault, rape and torture. DFAT is aware of credible allegations of extreme sexual torture of some female detainees, including gang rape, sexual mutilation and being hung naked from a tree. Sources told DFAT female political prisoners were particularly vulnerable while being held in military interrogation centres and while being moved between locations.
3.82 People trafficking, including the trafficking of women and girls, is a serious problem in Myanmar. While anti-trafficking laws exist and are enforced, the US Department of State lists Myanmar as a Tier 3 country in its annual Trafficking in Persons Report, indicating it is one of the countries ‘whose governments do not fully comply with the minimum standards and are not making significant efforts to do so’. Ethnic minority women in particular are targeted by traffickers, especially those living in conflict areas. In 2019, UN Women and Human Rights Watch reported traffickers luring or coercing Kachin women into China for forced marriages and sexual slavery. Rohingya women are also reportedly subject to trafficking, including to Malaysia for forced marriage to Rohingya men. There is evidence of government officials and law enforcement officers participating in, facilitating or profiting from human trafficking.
3.83 DFAT assesses that women in Myanmar are at moderate risk of societal discrimination and moderate risk of official discrimination in the form of inadequate state protection from gender-based violence. Female political prisoners are at high risk of sexual harassment and moderate risk of sexual violence and rape. Rohingya women in Rakhine State face high levels of official and societal discrimination on the basis of their gender. Women throughout Myanmar face a moderate risk of GBV, particularly domestic violence.[4]
[4] Ibid, 32-33

With respect to the applicant’s status as an involuntary returnee from the West, and having spent considerable time in a Western country, DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[5]
[5] Ibid, p.44
With respect to the applicant coming to the adverse attention of the Myanmar authorities for this reason, DFAT assesses that amongst other atrocities torture is commonly employed and finds as follows:
There are widespread, credible reports of the use of physical and psychological torture by Myanmar security forces, including beatings, stress positions, burning, mutilation, electric shocks, mock executions, rape and other forms of sexual violence, sleep deprivation, and denial of food, water and medicine. Other types of mistreatment include threats and verbal abuse, being made to strip naked, and being forced to drink from a toilet bowl. Before the coup, torture was more common in areas affected by ethnic conflict. The Special Rapporteur on the Situation of Human Rights in Myanmar reported in March 2021 that torture and ill-treatment had been documented in the ‘overwhelming majority of cases of arbitrary detention’ in Rakhine and Chin State. Since the coup, torture has been reported throughout the country, especially against political prisoners and suspected members of PDFs and ethnic armed groups. Torture is common in places of detention, in particular military interrogation centres, but also prisons, police stations and military bases. Bodies of people who have been forcibly disappeared often show signs of torture.[6]
According to the AAPP, over 10,000 people have been arrested, charged or sentenced for political crimes since the coup, most under Section 505 of the Criminal Code, which criminalises expression intended to incite mutiny or ‘cause fear’ (see Political Opinion). Many are held for weeks or even months before they are charged. Most detainees cannot afford legal representation, and while some lawyers will take clients pro bono, there are not enough lawyers to meet demand. Authorities interfere in the ability of lawyers to defend their clients, and most accused only see their lawyer in court, on the day of their trial. There are widespread reports of torture and mistreatment of political detainees, especially in military interrogation centres. If security forces are unable to locate a person of interest, they often detain family members in their place, including the elderly and very young children, to coerce the person into giving themselves up.[7]
[6] Ibid, p.38
[7] Ibid, p.39
CONCLUSIONS
The Tribunal finds as follows:
·The applicant fears being persecuted for reason of her imputed political opinion, her religion and her membership of a particular social group, being an unaccompanied woman. Given the country information set out in these reasons, there is a real chance that if the applicant returned to Myanmar, she would be persecuted for one or more of these reasons.
·Given the agent of persecution is the Myanmar authorities and the country information indicates a real chance of persecution upon her immediate entry into the country, the real chance of persecution relates to all areas of Myanmar, and effective protection measures would not be available to the applicant.
·As the applicant’s reasons for fearing persecution are due to her status as an involuntary returnee from the West, her sex and her religion, she meets the exceptions set out at ss 5J(3)(a), (b) and (c) of the Act with respect to the question of behaviour modification.
·The applicant’s reasons for fearing persecution are the essential and significant reasons for which she would be persecuted. Given the country information with respect to the prevalence of violence and discrimination perpetrated against Muslims and women and the situation for returnees from the West, who DFAT assesses will come to the adverse attention of the authorities upon their arrival and be arbitrarily detained, and the country information with respect to the widespread and egregious levels of torture perpetrated by the authorities against people held in detention, the Tribunal finds that the persecution feared would involve serious harm to the applicant as per the instances of serious harm set out at s 5(J)(5). Further, the Tribunal finds that this persecution involves systematic and discriminatory conduct.
Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia, and as such the exception with respect to third country protection contained at s 36(3) does not apply.
Given the Tribunal’s findings set out above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution and accordingly, she meets the definition of refugee set out at s 5H and is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan
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.
…

[2023] AATA 1455

29 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

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