1831154 (Refugee)

1831154 (Refugee) [2024] AATA 1965 (15 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831154
COUNTRY OF REFERENCE:                   Republic of Korea
MEMBER:Frances Simmons
DATE:15 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 May 2024 at 4:54pm
CATCHWORDS
REFUGEE – Protection Visa – Republic of Korea – criminal conviction in Australia – applicant has not experienced serious harm or significant harm in South Korea – returned to South Korea on four occasions after her conviction – applicant does not have a genuine fear of persecution for reasons related to her criminal history – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 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

The applicant is a citizen of the Republic of Korea who first arrived in Australia on [date] April 2016. She applied for a protection visa on 19 June 2018. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
Evidence before the Department
The applicant applied for a protection visa on 19 June 2018. According to this application, she is a citizen of the Republic of Korea (‘South Korea’) born on [date]. She is of Korean ethnicity and speaks, reads, and writes the Korean language. Her mother, father and brother reside in South Korea in Seoul. The applicant had previously travelled to [other countries]. The applicant has previously worked in [various fields]. Before the applicant travelled to Australia, she lived in Seoul.
In 2017 the applicant married a South Korean national who was resident in Australia. In 2018 she applied for an EN-186 (Temporary residence) visa as her husband’s dependant. She claims that due to her migration agent’s incorrect advice, she withdrew this visa application leaving her with no visa option.
The applicant claims that she is unable to return to South Korea because of her criminal conviction in Australia and because she had to withdraw her visa application. If she returns to South Korea she would be ‘a laughing stock’. She believes that if she returns to South Korea she will face social discrimination and a ‘huge stigma’ because of her criminal history in Australia.
When asked if she had experienced harm in South Korea in the past, she said ‘no’. In response to the question about whether she believed she would be harmed or mistreated if she returned to South Korea, the applicant claimed it would not make a difference if she relocated within South Korea as the social stigma would follow her wherever she went and she would encounter discrimination wherever she went in South Korea.
The applicant was not invited to an interview with the delegate.
The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations, either as a refugee or because she was otherwise entitled to complementary protection.
Evidence before the Tribunal
The applicant applied for review on 24 October 2018. The applicant provided a copy of the delegate’s decision with her application for review. The delegate’s decision records the following information:
a.The applicant first arrived in Australia on [date] April 2016 holding a Subclass 417 (Working Holiday) visa.
b.On [date] February 2017 she departed Australia and then returned to Australia on [date] March 2017.
c.On [date]August 2017 the applicant departed Australia and returned to Australia on [date] September 2017.
d.On [date] November the applicant departed Australia and returned to Australia on [date] November 2017.
e.On 5 April 2018 the applicant applied for an EN-186 (Temporary Residence visa) and on 10 May 2017 the applicant withdrew her application for this visa.
f.On 15 June 2018 the applicant became an unlawful non-citizen.
g.On 19 June 2018 the applicant applied for a protection visa.
The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant appointed a representative on the morning of the hearing. The representative she appointed is the same representative that provided her with assistance in completing her protection visa application.
The Tribunal explained the refugee and complementary protection criteria to the applicant. The applicant affirmed that the information provided in her protection visa application was true and correct. The Tribunal asked whether there were any other reasons that she believed she would be harmed or mistreated if she returned to South Korea. The applicant said she had no place to stay in South Korea and she indicated she was concerned that she had a criminal history.
The applicant gave evidence she has not experienced harm in South Korea in the past. Since she first arrived in Australia in March 2016, she has voluntarily returned to South Korea on four occasions in 2017. She did not experience harm on any of these occasions.
The Tribunal asked the applicant about her claims for protection and what had changed since she last returned to South Korea in 2017. The applicant gave evidence she was concerned she would face harm for reasons related to the fact that she was convicted of a drug possession offence in Australia in 2016 and that she would not have somewhere to stay if she returned to South Korea.
The Tribunal questioned the applicant about her claims for protection. The Tribunal put to the applicant that, based on the evidence she had provided, the Tribunal may have difficulty accepting that there was a real chance she would face serious harm or significant harm.
Where relevant the applicant’s evidence at the hearing is discussed below in the findings and reasons. The Tribunal invited the applicant’s representative to make oral submissions at the close of the hearing, but he declined to do so.
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
The applicant claims to be a citizen of the Republic of Korea (‘South Korea’). Based on the evidence before it, the Tribunal is satisfied the applicant is a citizen of the Republic of Korea and that Republic of Korea is the applicant’s ‘receiving country’ for the purposes of the refugee criterion and complementary protection criterion.
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings and reasons
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437, 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347, 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Having considered all the evidence before it, including the applicant’s evidence at the hearing, the Tribunal makes the following findings of fact:
(a) The applicant is a [age]-year-old citizen of South Korea. She is of Korean ethnicity and speaks the Korean language. She also speaks a little bit of English.
(b) The applicant’s mother, father and brother live in South Korea. The applicant has had no contact with her father for around 20 years. Her mother lives with her new husband in Seoul. Her younger brother lives with his wife in a different province.
(c) The applicant first arrived in Australia on [date] April 2016 on a Subclass 417 (working holiday visa) with the intention of working and travelling in Australia.
(d) The applicant was convicted of possession of a prohibited drug in Sydney on [date] November 2016 and fined $250. The applicant did not receive a custodial sentence. The applicant has not been convicted of any other criminal offences.
(e) The applicant married a South Korean national in November 2017 and they divorced around two years ago. She has no contact with her ex-husband.
(f) The applicant has travelled back to South Korea from Australia on four occasions between 2017 and 2018. When she returned to South Korea from Australia she stayed in Seoul with friends. The applicant did not see her mother when she returned from Australia to South Korea, but she did see her brother.
(g) The applicant has not experienced serious harm or significant harm in South Korea in the past.
The Tribunal has considered the applicant’s profile and her claims for protection.
As noted above, the Tribunal accepts that the applicant was convicted of a drug possession offence in 2016. The Tribunal accepts the applicant’s evidence that she did not receive a custodial sentence and was fined $250 for the possession of one pill of MDMA (ecstasy). In the absence of any evidence to the contrary and having regard to the applicant’s evidence and the information in the delegate’s that a criminal conviction was recorded. The Tribunal also accepts the applicant’s evidence that she has never been convicted of any other criminal offence.
The Tribunal accepts the applicant’s evidence that she has not experienced serious harm or significant harm in South Korea in the past. The Tribunal accepts the applicant did not experience any harm or mistreatment in South Korea before she travelled to Australia in March 2016 or when she voluntarily returned to South Korea on four occasions in 2017.
The Tribunal finds the applicant travelled to Australia in 2016 to work and travel, not to escape persecution or avoid the risk of significant harm. The Tribunal finds that the applicant applied for a Subclass 186 visa in April 2018 and withdrew this visa application in May 2018. The Tribunal finds the applicant became an unlawful non-citizen in June 2018 and applied for a protection visa later the same month.
When the applicant was asked to explain why she believed she would face serious harm or significant harm in South Korea given that she had returned to South Korea on four occasions after her conviction for a drug offence in 2016 and did not claim to have faced harm on any of these occasions, the applicant said she felt that way psychologically. When asked who would harm her if she returned to South Korea, she said ‘my family members’. Questioned further she said she was afraid that her younger brother would find out she had a criminal history and she also suggested she may face harm from her father. The applicant did not identify anyone else in South Korea who she believed might harm her.
The Tribunal finds, based on the applicant’s evidence, that she has not experienced harm in the past from her brother or anyone else in South Korea in the past. At the hearing the Tribunal observed that the applicant’s evidence was that she had not experienced harm in South Korea in the past and that she had seen her brother when she voluntarily returned to South Korea from Australia in 2017. The Tribunal asked the applicant to explain why she now claimed she would face harm from her brother if she returned to South Korea. The applicant told the Tribunal that since her brother married she was more scared of him finding things out. She suggested that he may find out she has a criminal conviction in Australia from mutual friends. She then suggested she was frightened her brother would harm her or, if he did not harm her, that he would not talk to her or may not want to see her.
Looking forward, the Tribunal does not accept that there is a real chance that the applicant will face serious harm or significant harm from her brother or anyone else in South Korea because the applicant was convicted of a drug possession offence in Australia in 2016. The Tribunal found the applicant’s evidence lacking in meaningful detail about the basis on which she believed her brother would harm her if he discovered she had a criminal conviction in Australia. The applicant has not claimed her brother harmed her when she saw him in 2017 or provided any detail about why he would seek to harm her if he discovered she received a non-custodial sentence for drug possession in 2016. Even if the Tribunal were to accept that her brother might not talk to her should he discover her criminal history, the Tribunal does not accept that the fact the applicant may be estranged from her brother constitutes serious harm or significant harm.
The Tribunal does not accept that there is a real chance that the applicant may face harm from her father. The applicant has not claimed that her father has harmed her in the past. The applicant’s evidence was that she has not seen her father for around 20 years and, as discussed at the hearing, it is not clear to the Tribunal why this situation would change if she returned to South Korea now or in the reasonably foreseeable future. The applicant did not address this question or expand upon her claim that she would face harm from her father. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face harm of any type, including serious harm or significant harm, from her father if she returns to South Korea now or in the reasonably foreseeable future.
The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm or significant harm from any of her family members if she returns to South Korea now or in the reasonably foreseeable future .Having regard to what it has accepted of the applicant’s claims and profile, the Tribunal is not satisfied that there is a real chance that the applicant will be subject to serious harm or significant harm for reasons related to the fact she has been convicted of a drug offence in Australia in 2016 or for any other reason if she returns to South Korea now or in the reasonably foreseeable future.
The applicant has not claimed, and the Tribunal does not accept that she has experienced serious harm or significant harm in South Korea in the past. While the applicant’s protection visa application asserts that she will experience social ostracism and discrimination in South Korea wherever she goes, at the hearing she did not expand on her claims that she would face social discrimination, stigma and be treated as a ‘laughing stock’. Instead, she claimed she would face harm from her brother and father if she returned to South Korea. The applicant has not provided any country information that would support the conclusion that there is a real chance she will face serious harm or significant harm because she has been convicted of a drug possession offence. Nor has the applicant explained how other members of South Korean society will become aware that she has a criminal record in Australia or, if other members of society do become aware of her criminal record, what type of discrimination she believes she will fac in South Korea.
Based on the evidence before it, the Tribunal is not satisfied that any social opprobrium or stigma that the applicant may encounter should persons in South Korea become aware of her criminal record or her immigration history in Australia will rise to the level of serious harm or significant harm. The applicant is a [age]-year-old woman who has travelled extensively, and currently rents accommodation in a share house in Sydney. She is currently supporting herself in Sydney by working as a [occupation]. She was born in South Korea, speaks the Korean language, is of Korean ethnicity and has previously lived and worked in Seoul. While the Tribunal is prepared to accept the applicant may live alone if she returns to South Korea and that she may not have any family support, as discussed at the hearing, South Korea has a population of 51 million people,[3] the applicant is of working age, and unemployment rates in South Korea are low (less than 3 per cent).[4]
[3] DFAT, Republic of Korea, Economic Fact Sheet< DFAT, Republic of Korea, Economic Fact Sheet<

In summary, the Tribunal is not satisfied that there is a real chance that, having regard to her personal characteristics and the fact she has a criminal record in Australia, there is a real chance that the applicant will face any form of harm (including societal discrimination, ostracism, and exclusion) that rises to the level of serious harm or significant harm. Furthermore, having considered the applicant’s evidence, the Tribunal does not accept that any economic hardship or difficulty the applicant may experience if she were to return to South Korea would amount to serious harm or significant harm.
The applicant was provided with an opportunity to identify any other claims for protection. None were identified and none arise on the material before the Tribunal.
Refugee criterion
The Tribunal has considered the applicant’s claims individually and cumulatively, having regard to what the Tribunal has accepted about her personal circumstances. The Tribunal accepts that the applicant has been convicted of drug possession in Australia and was fined $250. The Tribunal finds, based on the applicant’s evidence at the hearing that the applicant has voluntarily returned to South Korea four times since she was convicted of a drug offence in 2016. The Tribunal finds that the applicant has not experienced harm or mistreatment in South Korea in the past.
Having regard to the applicant’s migration history, the Tribunal is drawn to the conclusion that the applicant applied for a protection visa in June 2018 because she had exhausted her options to apply for other visas and not because she had a well-founded fear of persecution. The Tribunal finds that the applicant’s voluntary return to travel to South Korea in 2017 together with the delay in applying for protection after her criminal conviction in 2016 indicates that the applicant does not have a genuine fear of persecution for reasons related to her criminal history.
The Tribunal finds that there is no real chance that the applicant will face serious harm in South Korea from members of her family (including her brother or father) for reasons related to her 2016 conviction or for any other reason. The Tribunal finds that there is no real chance that the applicant will face serious harm in South Korea for any of the reasons claimed. Based on its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any reason set out in s 5J(1)(a) of the Act or for any other reason if she returns to the Republic of Korea now or in the reasonably foreseeable future.
The applicant has not claimed that any economic hardship or difficulties she may experience securing employment in the Republic of Korea would be directed at her for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a). Furthermore, the Tribunal is not satisfied that any economic hardship or difficulties that she may encounter if she returns to the Republic of Korea will amount to serious harm for the purposes of s 5J(5) of the Act.
The Tribunal is not satisfied that any hardships, social isolation, discrimination or difficulties the applicant may encounter if she returns to South Korea will rise to the level of serious harm for the purposes of s 5J(5) of the Act. The Tribunal is not satisfied that the applicant will experience severe economic hardship that threatens her capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens her capacity to subsist or that she will be denied access to basic services, where the denial threatens her capacity to subsist or that she will be subject to any other form of serious harm non-exhaustively listed under s 5J(5) of the Act.
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).
Complementary protection
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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[5] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[6]
[5] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[6] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
Having regard to its findings of fact and based on all the evidence before it, the Tribunal finds that there is no real risk that the applicant will face significant harm if she is removed from Australia to the Republic of Korea. The applicant has not claimed that she will be arbitrarily deprived of her life or that she will be subjected to the death penalty or to torture. Nor is the Tribunal satisfied that any disapproval or discrimination she may encounter if her family members or other individuals in South Korea discover she has a criminal record would rise to the level of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as these concepts are defined in s 5(1) of the Act.
For the reasons given above and having considered all the evidence before it, 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 the Republic of Korea, there is a real risk that she will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
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.
…

[2024] AATA 1965

15 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction