1830926 (Refugee)

1830926 (Refugee) [2022] AATA 4122 (5 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Susan Merrotsy
CASE NUMBER:  1830926
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Nora Lamont
DATE:5 September 2022
PLACE OF DECISION:  Brisbane
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 05 September 2022 at 11:30am
CATCHWORDS
REFUGEE – Protection Visa – Ghana – particular social group – albinos in Ghana – DNA evidence provided – kidnapped and threatened with ritual sacrifice – subject to ridicule, murder, violence, and discrimination – Economic Community of West African States (ECOWAS) – discrimination, stigma, marginalization and myths about persons with albinism common across African countries – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate (the delegate) of the Minister for Home Affairs (the Department) on 25 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 14 May 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined by ss 5H(1) of the Act nor the applicant is a person in respect of whom Australia has protection obligation as outlined in s 36(2) of the Act .
For the reasons that follow in this decision record I have remitted the application for reconsideration on the papers without a hearing.
The applicant was represented in relation to the review.
Summary of the Decision Record
The delegate has explained in their decision that the applicant was asked to provide medical evidence to support his claims during the Protection visa interview on 29 June 2018 and after multiple requests made on 3 August 2018 and 21 August 2018 no such information was received.
Albino claims
Considering the country information, the delegate found in most cases, people with albinism have some form of vision abnormalities however the applicant stated that his vision is normal. This in addition to lack of any medical evidence (as requested above) the delegate concluded that there was not enough information to indicate that the applicant is an albino as claimed.
The delegate explained that they accepted based on country information that albinos in Ghana can constitute a particular social group who share a common characteristic and may be distinguished or perceived by society at large. However as explained above there was no evidence in front of the delegate that establishes that the applicant is an albino as claimed.
The delegate further explained that even if the applicant could be perceived as an Albino in Ghana and as explained above discrimination against Albinos does exist in capital, it does not seem to affect persons who live with milder forms of Albinism to a similar extent. Hence the delegate concluded that they were not satisfied that the applicant will face a real chance of persecution because of his membership of a particular social group or any other s 5J(1)(a) reason, if he were to return to Ghana.
Alleged kidnapping
The delegate found that the alleged kidnapping incident did not occur as claimed by the applicant. The delegate has explained that they arrived at this conclusion because the applicant only provided limited details about the incident and the delegate was not satisfied that the applicant was kidnapped to be used as a sacrifice in a ritual as the kidnappers left the applicant unattended and unsupervised from where the applicant just walked away by himself. The delegate further explained that since this incident which occurred 12 years ago from the day of the interview the applicant has been able to live safely in Ghana until he came to Australia.
Travel to Australia claims
The delegate found the applicant’s claims about how he travelled to Australia implausible. The delegate has based this conclusion on the applicant being evasive and vague when asked about their travel to Australia and the fact that the applicant claims to have been provided financial assistance of $700 USD to travel to Australia by someone whom he has never met in his life.
The delegate also concluded that they did not believe that the applicant met another Ghanaian in Australia “by chance” who offered him a ride and allowed him to stay at their place. The delegate doubted this claim made by the applicant and raised suspicions on the ground that the applicant already had contacts in Australia prior to his arrival.
Australia’s protection obligations
Based on the country information provided the delegate found that the applicant who is a Ghanaian citizen can enter, reside and work in another ECOWAS country (Economic Community of West African States) of which Ghana is a part of. Country information also indicated that the applicant may have access to statutory effective protection in other ECOWAS countries.
The delegate explained that because they did not find the applicant’s claims to be credible, they did not make a finding whether the applicant could seek protection in one of the ECOWAS countries.
Considering the country information, the delegate found that there is a real risk the applicant will suffer real harm if he were to be removed from Australia to Ghana.
The delegate found that the applicant is not a refugee as per the definition of s 5H (1) of the Act and therefore the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Background
The applicant is a [age]-year-old national of Ghana. He was born in city of Accra in Ghana. The applicant first arrived in Australia on a [temporary visa] on [date] March 2018 when he was [age] years old and has stayed onshore since. He applied for a SC-866 (Protection visa) on 14 May 2018.
Based on copies of the applicant’s passport which was provided to the Department and to the Tribunal, and in the absence of any evidence to the contrary I accept the applicant is a national of Ghana and I have assessed their claims against that country in relation to sections 36(2)(a) and s.36(2)(aa) of the Migration Act.
There are no non-disclosure certificates on the applicant’s file.
Ghana is a member of ECOWAS. Please see discussion below on ECOWAS considerations.
Claims
The applicant’s claims are summarised in his visa application, written claims, and the delegate’s decision.
·The applicant claims to be an Albino from Ghana.
·The applicant claims that because of his albinism his family is not happy with him and his own mother does not want the applicant to be near her.
·The applicant claims that because of his albinism his mother has not seen him for 8 years and his father has not been in contact with him for as long as he can remember.
·The applicant claims that he has been discriminated since he was a child because of his albinism.
·The applicant claims that because of his albinism he is discriminated at the shops, in job interviews because local people in Ghana deem meeting an albino as bad luck.
·The applicant claims that as a child he was always harassed at school because of his albinism and when he complained to the teachers, they would only warn the students to stop. Due to this on-going harassment at school the applicant claims that he stopped going to school for months.
·The applicant claims that when he was 12 years old, he was beaten by a group of children while playing soccer.
·The applicant claims that in his teenage years he attempted to earn a living by selling [a product], but no one would buy from him because of his albinism.
·The applicant claims that he had to quit his technical school studies when he was 15 years old because everyone would make fun of him at school. The applicant claims that although he was very good at studies because of his albinism he was not able to complete his schooling.
·The applicant claims that once his mother took him to see a nurse who stated to the applicant’s mother that even if the applicant died, she would still have other children. The applicant claims that this event frightened him so much that he ran away and started to move around.
·The applicant claims that first he went to Accra and then to the central region. The applicant claims that when he was 17 or 18 years old some people kidnapped him to sacrifice him because he was an albino. The applicant claims that he ran off from his kidnappers to Tamale (a city in the northern region of Ghana) however he had to move from there as well because he heard that albino people were offered as sacrifices in that region as well.
·The applicant claims that he then went to [Town 1] (capital of [a] district in the Brong Ahafo region) and started living in a kiosk and sleeping outside. The applicant claims that within 2 years he had to move back to Tamale because the applicant discovered that albino people were also being killed in [Town 1] and the killings were at times done by their own family members.
·The applicant claims that for his type of albinism he does not have the bad eyesight and very very white skin compared to other people with albinism and it is because of this peculiar feature the applicant would be a preferred person to be sacrificed.
·The applicant claims that people in Australia may not be able to easily see that he is an Albino however if he meets people from Ghana in Australia, they can easily see it. The applicant also claims that because of his albinism he can no longer go out and buy food for himself as he fears someone will put something in his food and he might wake up with missing parts. It is because of this constant fear the applicant claims that he cannot trust anyone or feel safe at any time.
·The applicant claims that even when he goes to get a haircut, he has to collect all his cut hair from the shop as it can be used and due to this, he has to cut his own hair. The applicant claims that everything from his body will be of use including his hair, fingernails and blood and the applicant does not want this to happen.
·The applicant claims that after moving to Tamale he could not stay there permanently and is constantly on the move. He claims he does this to avoid being caught. He also claims that that at times he is financially supported by his mother and his brother.
·The applicant claims that he was planning to leave the country and travel to [Country 1] by bus however his money got stolen [and] he had to go back. The applicant claims that all the passengers on the bus were robbed.
·The applicant claims that after the above incident he came back to Tamale and since then was waiting for an opportunity to leave Ghana.
·The applicant claims that he told his story to a friend who sometimes helped him and who also helped him to organise his trip to [Country 1]. The applicant claims that this friend could be the person who helped pay for the applicant to come to Australia. The applicant claims that he does not know how much his friend paid or if it was someone else who paid for the applicant to come to Australia.
·The applicant claims that he was not aware that he is coming to Australia and all he wanted to do was to leave Ghana.
·The applicant claims that there were five people in his group who travelled from Ghana on the same day for [an event]. The applicant claims that he thinks all the people in his group must have gotten their visas to Australia organised by the same person who organised it for the applicant.
·The applicant claims that he has not seen anyone from his group once he arrived in Australia.
·The applicant claims that he arrived in Brisbane where he slept in a hotel and the following morning, he took a bus to Sydney. The applicant claims the reason he decided to go to Sydney was because he did not want anything to do with the [event] as he came to Australia not to participate in the [event] but to get help.
·The applicant claims that he arrived at the Central Station in Sydney where he was offered a lift by a person who was also from Ghana. The applicant claims that this person also offered the applicant to stay at his place and he did not seem to be prejudiced that the applicant is an Albino. The applicant claims that he accepted this offer and has been staying with this person since.
·The applicant claims that when he was in Ghana and even before he got his visa to Australia, he had made up his mind to leave Ghana and go somewhere safe and apply to stay there.
·The applicant claims that he heard the Minister for Immigration say that people who had come to Australia for the [event] cannot stay and the applicant thought he and others could not apply for any visa in Australia. The applicant claims that when he and others contacted a lawyer, they were made aware that they could apply for a visa which the applicant still did not believe as other people were telling him that he might get arrested and deported if he contacted Immigration. Considering this the applicant claims that he did not want to apply for the visa and was scared.
·The applicant claims he then heard that everyone who has come to the [event] can apply up till midnight on the last day of their existing visas and because of this the applicant contacted his lawyer and requested her to apply for a visa.
·The applicant claims that he fears going back to Ghana as he may be hurt, and he feels very lonely because of the way people treat him including his own family members.
·The applicant claims that he cannot go to a location because he will be very different from the group of people and either people will make fun of him and avoid him, or he will feel threatened and afraid.
·The applicant claims that most of the times he is always alone, and it is very hard as people are aware that he is an Albino. The applicant claims that every time he tries to talk to people, they avoid him which makes him feel very bad and lower than them.
·The applicant claims that he will not have a normal life in Ghana and everywhere he will go people will always look down on him. The applicant claims that he has never been in a relationship.
·The applicant claims that people will call him all sorts of names which he is not comfortable with and nobody can stop the way people treat Albinos.
·The applicant claims that since coming to Australia he does not feel insulted and every time he tells someone that he is from Ghana, they do not believe him. The applicant claims this is because if someone is from Ghana, they are supposed to be black.
·The applicant claims that he is afraid to go back.
DNA/Genetic Testing
The applicant was asked to provide medical/DNA evidence that he was an Albino. On 24 April 2022 the applicant [underwent] genetic testing for Albinism.
The results of the consultation are as follows: [The applicant] was found to have 1 pathogenic (disease causing) mutation on the MC1R gene and a mutation on the other copy of the MC1R gene. The MC1R gene ‘plays a critical role in the production of skin and hair pigment.’ The mutation means there is more reddish-yellow colouring in the skin pigment of the person. [The applicant] is at a much higher risk because of the mutations, of developing non- melanomatous skin cancer compared to people without his mutation. [1]
[1] AAT Folio and Representative submission
As the applicant has provided DNA testing which clearly indicates that the applicant is an Albino, I have gone on to consider the applicant’s claims against the country information for Albinos in Ghana.
Country Information
Country information indicates that Ghanaians living with albinism are stigmatised and often discriminated against, they are also murdered and marginalised.
Major human rights reports are all silent on matters related to the treatment of albinos in Ghana. These include the latest US Department of State report on Human Rights practices, Amnesty International, Human Rights Watch, and various UK Home Office Country information and guidance notes. Information from articles and common blogs appear to indicate that albinos who reside in rural or remote areas are at greater risk of harm than those living in central metropolitan areas. According to a 2017 journal article by Francis Benyah from the University of Ghana: In most cases, albinos are given derogatory names by most ethnic groups in Ghana. They are constantly abused and ridiculed in the public with derogatory names and social tags that serve as a form of stigmatization. For instance, Ofri or ofridjato is an Ashanti term of derision for a person with albinism that means 'scorched or marked person.' In Anlo-Ewe, Gesoshi refers to the supernatural: an incomplete being, and Agbelimoryevu refers to plant. In Ewe, Gele so si refers to the supernatural and in Dagati, Gbangu also refers to the supernatural. Other terms of derision used of persons with albinism in Ghana include: cassava dough-white person, White person, White/red person, commanded from thunder and one conceived during mother's menstrual period. It is on record that Ghanaians with albinism have been attacked and murdered for ritual purposes, but this happens less frequently compared to some other African countries. However, ongoing discrimination, stigma, marginalization and myths about persons with albinism create the preconditions for attacks. There is no doubt that Ghanaians with albinism live in fear of violence that has swept across other parts of Africa. [2]
An article in the New York Times published in June 2018 remarked the following: To say that Ghanaians with albinism are stigmatized is an understatement: Some believe their presence is a sign of bad luck, leading their parents to avoid acknowledging them or even to try to kill them. Others believe their body parts can bring fortune and prosperity, prompting people to kill them or traffickers to sell them for their body parts — though this happens less in Ghana than in other African countries like Mozambique, Malawi and Tanzania. In a population of roughly 28 million people, Ghana has approximately 2,000 individuals with albinism, according to Kwame Andrews Daklo, a social worker focused on albino advocacy with Engage Now Africa, a nongovernmental organization that provides medical services, clean water and business training to communities in Ghana and other African countries. People in Ghana with albinism have been largely isolated from one another and unable to get the resources to help them battle the unforgiving sun and a world that thinks them disposable. But in recent years, they have forged connections on platforms like Facebook and WhatsApp, turning a societal stigma into social bonds and offline friendships. Experiences for people living with albinism vary according to class, age and how pervasive the condition is on the body, but for those living in Accra and in rural villages outside of the capital city, the stigma often leads to severe neglect and ridicule.
The same article presents details of a range of individual cases of individuals affected by albinism who have suffered various forms of harm across Ghana. These vary from public segregation and discrimination in health facilities, education, certain work settings, and in some cases even targeted violence from relatives or members of the community. However, the article also suggests that there is a growing sense of community support between persons who are affected by albinism, as well as some degree of support and political advocacy on their behalf by associations such as ‘the Ghana Association of Persons with Albinism’ (GAPA). The article also observes that ‘albinos living in rural villages ruled by chiefs are especially prone to violence’, and because the government does not perceive albinism to be a disability ‘many people who have the condition do not receive the resources they need, including educational support in school, periodic skin screenings and money to buy things like sunscreen. Similar examples of individuals who have been either targeted or discriminated against have been published in other media websites such as ‘Joy Online’ and ‘Graphic Online’. [3]
According to GAPA’s official website, the association was established ‘to advocate the mainstreaming of issues of albinism through awareness creation, capacity building of its members and networking with relevant stakeholders. Since its establishment in 2003, GAPA has generated a lot of evidence through research to establish the level of exclusion and discrimination being meted out on persons with albinism.’ GAPA is also a full member of the Ghana Federation of Disability Organisations, an umbrella organisation established in 1987 which is legally registered and is ‘visible at the national level and has branches in all ten (10) administrative regions of Ghana and in over 200 districts of Ghana’s 216 districts. ‘Under the Same Sun’, a Christian charitable organisation that promotes the wellbeing of persons with albinism via education and advocacy, submitted a list of issues to the Centre for Civil and Political Rights for reporting by the United Nations Human Rights Commission: The Unrealized Civil and Political Rights of Ghanaians with Albinism Fifteen years have passed since Ghana ratified the International Covenant on Civil and Political Rights (ICCPR). Yet, for Ghanaians with albinism, these rights remain unrealized. Under the ICCPR, they have the right to life, freedom from torture and security of the person. They have the right to equality before the law and to its protection from discrimination. Ghanaians with albinism have been attacked and murdered for ritual purposes. But this happens less frequently than in some other African nations. However, ongoing discrimination, stigma, marginalization and myths about people with albinism create the preconditions for attacks. Ghanaians with albinism live in fear of violence that has swept across other parts of Africa.
Across 25 countries, there have been 419 reported attacks since 2000. This includes 161 documented murders of people with albinism and 258 cases of missing persons, assault, mutilation, rape, attempted abductions, grave violations and other acts of violence. Myths persist that body parts of persons with albinism bring fortune and good health. A corpse can be worth up to US$75,000 on the black market. Family members are often complicit.
The Ghana Association of Persons with Albinism (GAPA) celebrated the first International Albinism Awareness Day in Accra on June 2015 with a public awareness march and discussion forum. Attendees included government officials, civil society, media, families, hundreds of people with albinism from Ghana’s ten regions and Member of Parliament Samia Nkrumah. Police provided protection during the march. Placards read: “Send children with albinism to school”; “Persons with albinism are human beings”; “Albinism is not a curse” and “Say no to societal prejudice.”
[2] Equally Able, Differently Looking: Discrimination and Physical Violence against Persons with Albinism in Ghana. Journal for the Study of Religion 30, 1 (2017) 161-188, 30 December 2017, CIS7B839411699.
[3] The Albino Community in Ghana: I am motivated to Believe that I can Survive, New York Times, 9 June 2018 CIS7B839411690.
Findings

It is clear from the country information that Albinos are mistreated, subjected to ridicule, murder, violence, and discrimination which the state is unable to stop. I accept the applicants claims that his childhood was full of discrimination, that his mother has trouble being around him, his father is nowhere to be seen and he struggled with his appearance and the discrimination he was given by his family and the community.
As the applicant’s country is a member of ECOWAS, I have considered whether the applicant could be provided with effective protection in another country. Witchcraft is rampant throughout Africa and according to the United Nations: [4]
Persons with albinism face multiple human rights challenges including experiences of stigmatization and discrimination and harmful practices related to witchcraft accusations and ritual attacks. Since 2006, the Independent Expert received information on close to 800 cases reported across 28 countries, mainly in the Africa region. These are just the reported cases, and civil society organizations believe the number is higher but remain unreported as in a number of cases family members are the perpetrators.
[4] OHCHR | Albinism in Africa
I do not believe the applicant can receive effective protection in an ECOWAS Country.
Conclusion
The applicant has provided me with DNA/Genetic testing that shows he is an Albino.
I find that the applicant is a member of a Particular Social Group Albinos in Ghana and in the circumstances of the applicant I consider that the subjective fear the applicant has for the future is objectively made out on the available country information. I consider that documented murders of albinos and societal attitudes including attitudes of family members, selling of corpses and other acts of violence that the applicant faces does constitute serious harm. I consider based on the evidence before me that the applicant has a real chance of serious harm arising from his membership of a particular social group Albinos in Ghana.
I find the applicant has a real chance of serious harm on return to Ghana as an Albino. I find he has a well-founded fear of persecution for this reason.
I have gone on to consider whether the applicant has the ability to avail himself of state protection. Whilst country information indicates that there is a growing community of support for Albinos, the state has failed to provide adequate protection to Albinos given that harm for Albinos includes public segregation, discrimination in health facilities, education, certain work settings and violence in the community. [5]Therefore, I do not consider that the applicant can avail himself to the authorities for protection.
[5] The Albino Community in Ghana: I’m Motivated to Believe That I Can Survive. New York Times, 9 June 2018 CIS7B839411690.
With respect to relocation, I consider there is no location in Ghana where the applicant can relocate to where he would not face the real chance of serious harm arising out of his Membership of a Particular Social Group Albinos in Ghana.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has a protection obligation. Therefore, the applicant satisfied the criterion set out in s.36(2)(a).
Having concluded that the applicant meets the Refugee criterion on s.36(2)(a), it is not necessary for me to consider the alternative criterion in s.36(2)(aa).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
Member

Document List-1830926-[name deleted]

Tribunal File-1830926

1.    Application for review dated 22 October 2018.

2.    Department of Home Affairs: Decision Record dated 25 September 2018.

3.    Copy of applicant’s expired passport.

4.    Letter of Support from [a named doctor] dated 26 January 2022.

5.    Submissions received from the Representative dated 30 June 2022 which amongst other things includes a medical [report].

6.    Country Information reports on Ghana prepared by Department of Foreign Affairs and Trade and Department of Home Affairs.

Department File - [deleted]

1.    Visa application dated 14 May 2018.

2.    Department of Home Affairs: Decision Record dated 25 September 2018

3.    Copy of applicant’s expired passport.

4.    Submission to the Department: Articles about albinos in Ghana.

5.    Statutory Declaration signed by the applicant dated 16 May 2017.

6.    Identification documents for [named individuals].

7.    Statutory Declaration by [a named person] dated 2 November 2017.

8.    Email communications between the applicant’s representative and the Department.

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 4122

5 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction