1829622 (Refugee)

1829622 (Refugee) [2022] AATA 944 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829622
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Rachel Da Costa
DATE:7 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 April 2022 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Ghana – fear of harm from government agents for taking part in government-organised visa fraud – threats by political party thugs to friends who have returned or been deported – credibility – no recent contact with friends – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 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 a citizen of Ghana, applied for the visa on 1 July 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provided the following details. He was born in Ghana on [Date]. He has never been married. He has his mother and father in Ghana. He contacts them once a week. In Ghana, he always lived at the same address in [Location 1]. He speaks the Hausa language. His religion is Islam. In Ghana, he was [an Occupation 1] and worked in [a workplace] in [Location 2].
He departed Ghana on [Date 1] March 2018 and arrived in Australia on [Date 2] March 2018, travelling on his Ghana passport issued on [date].
Protection visa application
In a written statement attached to his protection visa application form, the applicant makes the following claims:
·     He is applying for protection as a member of a particular social group which is ‘a victim facing a real risk of harm and potential persecution in Ghana due to the Ghana National Sports Authority’s 21^st Commonwealth Games visa scandal caused by its officials and agents who deceptively provided Australian visa to me and others’.
·     In [2017], he was introduced to [Mr A] who was an agent for the Ghana National Sports Authority and he was recruiting people to travel to Australia to support the Ghanaian athletes at the Commonwealth Games in Australia.
·     The agent informed the applicant that he worked for [Mr B] and [Mr C] who are top officials organising the visas issued by the government.
·     The deal was that the applicant had to pay $[Amount 1] to travel and support the athletes and then he could stay in Australia on the visa indefinitely. He would also be provided with free Games tickets.
·     The applicant paid the agent $[Amount 1] and the agent arranged the applicant’s visa.
·     When the applicant arrived in Australia he realised he had been deceived about being able to extend his visa and stay in Australia indefinitely.
·     He is afraid to return to Ghana where people in power and their protectors are prepared to take action to silence him and others for fear of revealing how they got their Australian visas.
·     He fears harm because he has information about the officials who provided him with the visa.
·     Bodyguards and political party thugs have been threatening the lives of his friends who were deported back to Ghana, telling them to shut up about what they know about the people who provided the visas or else they will kill them. The applicant fears the same thing will happen to him.
·     The Ghana government has made it clear that they will prosecute those who travelled to Australia posing as Games officials. The applicant did not intend to pose as a Games official. He came as a supporter but the agent declared him as a government official.
·     The government is investigating everyone involved in the visa scandal and are using people like the applicant as scapegoats to hide what happened.
·     The authorities cannot protect him because he is up against powerful political government officials who have the power to order someone to kill him without any criminal consequences.
·     The applicant did not suffer any harm in Ghana before coming to Australia.
Documents provided to the Department
The applicant provided a number of articles along with his protection visa application as follows:
·     Freedom House 2018 Report on Ghana
·     US Department of State Report on Human Rights Practices, Ghana 2015
·     Printouts of online news articles from Ghanaian websites dated April and May 2018 about visa fraud connected to sport in Ghana, athletes who did not return to Ghana after the Commonwealth Games and other people being deported from Australia after the Games, suspension of officials and an investigation being conducted into the situation.
Interview with the Department
On 20 July 2018, the applicant attended an interview with the Department. During the interview he provided further information in relation to his claims.
The delegate’s decision
On 17 September 2018, a delegate of the Minister found that based on the information provided by the applicant, he had serious concerns that the applicant knowingly entered into a corrupt transaction when he paid for his visa to come to Australia. He accepted that the applicant paid $[Amount 1] to come to Australia. The delegate was not satisfied that the applicant would face a real chance of harm on return to Ghana because he purchased a visa to come to Australia. The delegate considered country information, including that provided by the applicant, and found there were no available reports to indicate that people involved in the scandal have been harmed. Having considered the applicant’s claims, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 10 October 2018, the applicant lodged an application for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision record with his application for review.
Additional documents
On 28 February 2022, the applicant provided an updated written statement to the Tribunal in which he reiterates his claims.
The hearing
The applicant appeared before the Tribunal on 21 March 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using the Microsoft Teams platform (MS Teams) with the agreement of the applicant and his representative. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by video having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hausa and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review but his representative did not attend the hearing.
Nationality
The applicant claims to be a citizen of Ghana and provided to the Department a copy of his Ghanaian passport issued on [date]. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Ghana. The Tribunal finds Ghana is his receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant gave evidence that his migration agent helped him to fill in his protection visa application form and write his claims. The applicant said he provided his migration agent with the information based on the questions he was asked. He confirmed that the information contained in his protection visa application form was true and correct and there are no mistakes.
During the hearing, the Tribunal discussed with the applicant his family, his employment history, where he lived in Ghana, how he obtained his visa to come to Australia, his travel to Australia and why he fears returning to Ghana. The Tribunal has concerns about the credibility of aspects of the applicant’s evidence, particularly relating to why he claims to fear returning to Ghana and what might happen to him if he returns.
The Tribunal’s concerns and findings are discussed below.
The applicant’s claims about threats made to his friends in Ghana
In his written statements, the applicant claims that bodyguards and political party thugs who protect the officials who provided the visas have been threatening the lives of his friends who were deported to Ghana to shut them up and not tell anyone about how they obtained their visas. The applicant did not discuss this claim in his interview with the delegate.
In the Tribunal hearing the applicant was asked about his claim that the lives of his friends who were deported had been threatened and told to stay silent. He responded that last time he spoke to his brother, his brother said the situation with the visa scandal has not been settled and he should be careful. The Tribunal asked the applicant whether he was still in contact with friends in Ghana who had gone back or been deported. He said he was not. The applicant confirmed that the reason he thinks the situation is not settled and he is in danger is because of what his brother said. The Tribunal asked the applicant where his brother got the information. The applicant said he got it from the media in Ghana and through his cousin who was deported back to Ghana. The Tribunal asked the applicant how his cousin knows what is happening and the applicant said he did not know because he is not in touch with his cousin anymore. The Tribunal put to the applicant its concern about the reliability and source of his information to support his claim. He responded that he needs help because in Africa it is not like in Australia where people have rights. The Tribunal does not accept the applicant’s response. The applicant’s evidence is that he is not in touch with friends who have returned to Ghana or been deported and the Tribunal does not consider that the applicant has provided probative evidence to support his claim that the lives of his friends who were deported back to Ghana have been threatened. This raises concerns for the Tribunal about his credibility and the genuineness of his claims.
The Tribunal asked the applicant whether he had received any threats from anyone in relation to the visa scandal. He said he had not. He stated that his brother told him someone came to the house once to ask whether he had returned to Ghana but he does not know who it was. He agreed that he did not know whether that was related to the visa scandal or not. There was nothing else. The Tribunal accepts the applicant’s evidence.
The Tribunal has considered all of the applicant’s claims and evidence and in light of the above concerns, finds as follows.
The Tribunal accepts that the applicant was born in Ghana and lived in [Location 1] until he came to Australia. The Tribunal accepts that he worked as [an Occupation 1] in Ghana and used to sell [products].
Based on the applicant’s evidence, the Tribunal is prepared to accept, albeit with some reservation, the applicant’s evidence about how he obtained his visa and his claim that he did not know until he arrived in Australia that he purchased his visa to come to Australia through a fraudulent scheme. The Tribunal accepts that the applicant was introduced to [Mr A] by a friend in [2017]. The Tribunal accepts that [Mr A] told him he was recruiting people to travel to Australia to support the Ghanaian athletes at the Commonwealth Games in Australia. The Tribunal accepts that the applicant paid US$[Amount 1] for his visa. The Tribunal accepts that the applicant was told his visa would enable him to travel to Australia to support the athletes and then he could stay in Australia indefinitely and obtain work. The Tribunal accepts that [Mr A] told him he worked for [Mr B] and [Mr C] who were senior officials organising the visas. The Tribunal accepts that when the applicant arrived in Australia he realised he had been deceived about being able to extend his visa and stay in Australia indefinitely. The Tribunal accepts that the applicant did not suffer any harm in Ghana before coming to Australia.
The Tribunal does not accept that bodyguards and political party thugs have been threatening the lives of friends of the applicant who were deported back to Ghana. The Tribunal does not accept that the applicant’s friends have been threatened and told not to tell what they know about the people who provided the visas or they will be killed. The Tribunal accepts that the applicant has not received any threats of harm from anyone involved in the visa scandal. The Tribunal does not accept that the applicant fears returning to Ghana for the reasons claimed.
Does the applicant meet the refugee criterion?
In his written statements, the applicant states that he did not suffer any harm in Ghana before coming to Australia. He confirmed this in the Tribunal hearing. As discussed above, the Tribunal accepts this.
In his written statements, the applicant claims that he fears returning to Ghana because he has information about the officials who provided him with the visa and those people will take steps to stop him from revealing information about how he got his visa and will put his life in danger. He claims the Ghanaian government has made it clear they will prosecute those who travelled to Australia posing as officials, which includes the applicant even though he did not intend to pose as such. He claims the Government is investigating everyone in the visa scandal and they are using people like the applicant as scapegoats to hide what really happened. In the interview with the delegate, that applicant claims that he fears returning to Ghana because he will be arrested and his life will be in danger from the people who provided him with the visa. In the Tribunal hearing, the applicant gave evidence that he fears returning to Ghana because he is scared that [Mr B], [Mr C] and [Mr A] have threatened those who were deported from Australia that if they leak information to the authorities about what they did they will be harmed or dealt with. He is scared that if he goes back to Ghana they are likely to physically harm him because their party is still in power and they have influence.
The Tribunal has considered the applicant’s claims that the Ghana government has made it clear they will prosecute people who travelled to Australia posing as officials, that the government is investigating the visa scandal and are using people like the applicant as scapegoats to hide the truth and that he is likely to be physically harmed to stop him from saying what he knows about the role of senior officials. The Tribunal discussed with the applicant recent country information that indicates an investigation has been conducted and completed by the government into the visa scandal. Country information indicates that it was sports officials and not individual visa recipients like the applicant who were the subject of the investigation. Some individuals were briefly detained and questioned when they were sent back from Australia at the time of the Commonwealth Games but then they were released. Some officials were suspended from their positions during the investigation. Country information indicates that the government knows what happened and which officials were involved but the investigation report has not been made public and there appears to be little will to publish the report or to hold anyone to account. Nobody has been held responsible or prosecuted in relation to the visa scandal. Country information does not indicate that there have been repercussions for individuals who purchased the visas or that anyone is trying to silence them.[1] The applicant said he had nothing to add in response to this information. The Tribunal has considered the articles provided by the applicant referred to in paragraph 6. The Tribunal finds that the articles are out of date or not relevant to the applicant’s claimed fear of harm given subsequent events and does not accept them. Therefore, in light of the country information discussed above, including the fact that the investigation was concluded some time ago, the government knows who the responsible officials were, the report has not been made public and nobody has been held to account or prosecuted for their involvement in the scandal, the fact that individuals who purchased the visas were not the focus of the investigation, there being no information to indicate that government officials or others have tried to have individuals who purchased the visas silenced, the length of time that has passed since the events in question took place and the Tribunal’s finding above that friends of the applicant who were deported back to Ghana have not been threatened in connection with the visa scandal, the Tribunal does not accept the applicant’s claims and finds that if he returns to Ghana in the reasonably foreseeable future he does not face a real chance of serious harm arising from these circumstances.
[1] (accessed 7 April 2022); (accessed 7 April 2022); (accessed 7 April 2022); (accessed 7 April 2022); (accessed 4 March 2022); (accessed 4 March 2022); (accessed 4 March 2022); (accessed 4 March 2022)

The Tribunal has considered the Freedom House 2018 Report on Ghana and the US Department of State Report on Human Rights Practices, Ghana 2015, provided by the applicant and finds that they are not relevant to its assessment of his claims of harm given its findings above. On this basis, the Tribunal does not accept them.
In light of the Tribunal’s findings above, the Tribunal does not accept the applicant’s claim that he is a member of a particular social group which is ‘a victim facing a real risk of harm and potential persecution in Ghana due to the Ghana National Sports Authority’s 21^st Commonwealth Games visa scandal caused by its officials and agents who deceptively provided Australian visa to me and others’
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Ghana now or in the foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[2] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[2] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 944

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction