1833740 (Refugee)

1833740 (Refugee) [2024] AATA 3426 (29 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul O'Connor (MARN: 0854511)
CASE NUMBER:  1833740
COUNTRY OF REFERENCE:                   Cambodia
MEMBER:Denis Dragovic
DATE:29 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 June 2024 at 3:42pm

CATCHWORDS
REFUGEE – Protection Visa – Cambodia – medical condition – fear of harm due to inadequate medical treatment – ability to subsist – applicant’s half-sister is an Australian citizen – applicant does not face a real chance of serious harm – request for Ministerial Intervention – strong compassionate circumstances – serious, ongoing and irreversible harm on the Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 417, 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 of the Minister for Home Affairs on 7 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Cambodia by birth.[1] He applied for the visa on 7 April 2018.
[1] Article 4 of Law on Nationality: >
The applicant appeared before the Tribunal on 27 June 2024. Due to the applicant’s age, the Tribunal received oral evidence from [the] applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review.
The Tribunal is requesting that the Minister consider exercising his powers under s 417 of the Act based on strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old male child. His mother who is living in Australia on a bridging visa tied to the applicant’s protection visa application had a separate protection visa refused. The refused protection visa decision by a differently constituted Tribunal for the mother’s case was provided by the applicant to this Tribunal.
In the protection visa application for this matter, the mother who completed the application, wrote that the applicant is stateless.[2] Cambodian citizenship laws, though, provide that any child born to a Khmer national/citizenship will be a Khmer national which is a citizen of Cambodia.[3] It is not in dispute that the applicant’s mother has Cambodian citizenship. As such I do not accept that the applicant is stateless. This was confirmed by the applicant’s representative when it was raised at the hearing including that the Australian government would provide a lesse passe to the applicant to return to Cambodia at which point he would have the ability to access the necessary government documents.
[2] Question 14, page 14, form 866 Part C
[3] Article 4 of Law on Nationality: >
The applicant’s claims in his protection visa application were limited to his health and well-being. At the hearing further claims were raised about the standard of education and challenges to his ability to subsist.
The applicant has ‘[Medical condition 1]’. In the protection visa application, it states that the applicant [has symptoms]. None of the numerous medical reports provided details such matters, nevertheless, I accept that the applicant had at the time of the application required hospitalisation.
A medical certificate was provided diagnosing him with [Medical condition 1]. The report from when the applicant was [age] stated that there had not been any worsening of the [condition] since first being identified. The most recent medical reports provided were from 2017. In a letter dated 23 August 2017 from a [specialist] it states the applicant’s current situation is asymptomatic and does not require and does not cause any disability.
At the hearing the mother confirmed that the applicant has not required surgery and that he goes for ultrasound check-ups every approximately six months but recently she claimed he was required to attend more regularly. She believes that it is because what she described as the ‘disease’ having grown.
The [specialist] wrote in a 2017 report:
[The applicant] requires ongoing surveillance imaging every 6 months to watch for progression of his [condition]. If there is significant progression in severity of the [condition], or if complications [should] arise, [the applicant] will need further investigation and possibly an [operation]. Prognosis is difficult to quantify but [the applicant] needs surveillance for these possibilities for the foreseeable future (at least 2-3 years).
Apart from surveillance ultrasound imaging, [the applicant] may require further investigation or surgical intervention. His care needs will not be affected by his condition (apart from during the perioperative and recovery period if he requires surgical intervention). He is not expected to have any specific residential care needs (normal needs for a child).
The applicant attends schooling. The representative raised the concern that the applicant has delayed development. No formal assessment has been made of his condition. The mother explained that her son’s teach conveyed to her that he is slow to learn and requires additional attention.
The applicant is claimed to be able to speak ‘very little’ Khmer.
I accept that the applicant has the medical condition as described in the 2017 reports and that he has been attending regular check-ups since. I accept that the applicant is be maintaining his learning at the expected level of his peers in Australia. I also accept that the applicant can speak very little Khmer.
No evidence was taken from the applicant due to his age and lack of insights into the circumstances of the situation in Cambodia. This decision was supported by the representative.
The applicant’s mother.
The applicant’s mother works five days a week in [Australia]. While in Cambodia she worked as a [occupation].
As noted, the protection application of the applicant’s mother was provided to the Tribunal. In that Tribunal’s decision (1419065) a summary of the family’s circumstances was detailed and is reproduced here:
The applicant has a [age] year old Australia citizen daughter, born [date], who is living in Australia. The child is an Australian citizen by descent because her father, who is now deceased, was an Australian citizen.
The child’s father was intending to sponsor the applicant on a partner visa, but died [in] February 2013 due to an ‘unexpected and severe stroke’ before the application could be lodged. This left the child without her mother who was residing in Cambodia at the time. The child then went into the care of her half-sister until the applicant arrived in Australia in August 2013.
The applicant is not in a position to afford the fees for a Contributory Parent visa.
The applicant is pregnant with her second child, due to be born on [date]. She does not know the identity of the father as they only met on one occasion.
The ‘second child’ referred to in the above extract is the applicant in the current matter.
I asked if the mother held any fears of harm for her return to Cambodia. She said that she fears being harmed by the same person/people that harmed her former husband. Her husband was attacked by a farmer with a scythe and required hospitalisation. He was attacked in the mother’s home village according to a police reporting provided to the Tribunal. He returned to Australia but six months later died from a stroke.
I noted that the mother had not been harmed in Cambodia despite living there for two years after her husband was attacked by the farmer and as such suggested that she would not face harm upon return to Cambodia. She said that she feared harm and so remained in Phnom Penh after the attack on her husband. She stated that none of her family were harmed since then.
The mother said that she is getting older and as such would struggle to find work in Cambodia. She acknowledged that she had in the past worked in the capital as a [occupation] where she had lived for two years.
She noted that she has five siblings with their own families and that she owns some land in their home village that is currently being tended to by her brother. She claimed that they are all very poor. She last saw her siblings in 2013 but has kept in touch since.
When asked where she would return to her home village or the capital, the mother could not answer the question. She said that she would not return. Despite pressing the mother on numerous occasions including rephrasing the question, the mother did not answer it.
The mother’s request for Ministerial Intervention was denied on 19 October 2017.
I find that the mother would be able to find work in Cambodia having had the skills and experience in the past. I acknowledge that her income would be very limited.
In considering her circumstances I find that she would return to her home village as that is where she would have ongoing support to assist her to care for her son and help in transitioning back to life in Cambodia.
With regards to the mother’s risks, I note that she was not attacked, threatened, or harmed before moving to Phnom Penh. None of her family have been harmed. It has been thirteen years since the attack and as such any motivation to harm her then husband would most likely have dissipated. It is unknown what the circumstances are of the person who was involved in the attack. For all these reasons, I find that the applicant will not be harmed or sought out or threatened by anyone upon her return to her home village.
The applicant’s half-sister
The applicant’s sister is about to turn [age]. The tribunal offered opportunities for the sister to provide evidence, but she chose not to make any contributions. The mother provided evidence regarding her situation.
The sister is an Australian citizen. When asked what the mother would choose to do regarding the sister if the mother was required to depart Australia with her son, the mother said that she had no one to leave her daughter with and that the daughter would have to come to Cambodia with her. I accept this to be the case.
Submissions were made by the representative pertaining to the impact of such a move on the daughter, but I noted that she is not a party to the application and the only consideration of her circumstances that would be relevant would be any impact her circumstances would have on the applicant. I noted at the hearing when this was discussed that it could include, for example, emotional hardship on the applicant arising from witnessing her hardship. I also noted that she would be working and as such be able to contribute to the household income and in turn the ability for the family to subsist. When this was put to the mother, she responded that her daughter would be unable to make enough income even for herself.
The representative noted that there was a risk that she would be pulled into the sex trade, but he acknowledged that this would be speculative. Since it would be speculative and noting that she is not a party to the application I do not consider this further.
I find that the applicant’s half sister will be able to work and contribute to the family in a limited way. I find that her emotional hardship will transfer to some degree to the applicant and add a layer of burden to his psychological state.
Considerations
The Act provides that if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The applicant’s claims arise in part from his fear of harm due to inadequate medical treatment. I accept that in Cambodia the level of medical care will be less than what he is receiving in Australia. Due to the lower standard of care the applicant will experience the symptoms of [condition] more often. These are described as including:
[Symptoms deleted].
Severe cases of [condition] can damage your [organs] and lead to [organ] failure. If this happens, you may need treatment or [organ] transplant. Most people recover from [condition] and don’t cause permanent damage to their [organs].[4]
[4] [Deleted].
Due to his [condition] I find that the applicant faces a real chance of serious harm into the reasonably foreseeable future without the level of care afforded to him in Australia. But there is no evidence before the Tribunal nor were submissions received that indicate that any of this harm arises for the reason of the applicant’s race, religion, nationality, membership of a particular social group or political opinion and as such does not meet s 5J(4)(a)). As such, I find that the applicant does not meet the criteria of s 36(2)(a) for reasons of inadequate medical support in Cambodia.
I have also considered the applicant’s ability to subsist. The applicant’s mother hold’s a visa that is tied to the applicant’s protection visa process. When the applicant’s matter is finalised and if he is required to return to Cambodia, so too would the mother be required to return. As noted above, the mother has decided that her daughter would also return.
Under such circumstances, the mother and children would return to her home village where she has an extended family network. The mother could work and as noted above so too would the daughter/sister. I acknowledge that neither would earn substantial amounts of money but with two sources of income, some land that the mother owns upon which they can work, and the support of the extended family, sufficient opportunities exist for them to subsist. As such I find that the applicant does not face a real chance of serious harm arising from his ability to subsist.
I note that the hardship that would arise for both the mother and sister of the applicant would create some psychological harm to the applicant, but I find that any such harm does not amount to serious harm.
With regards to the issue of education the representative noted the lower quality of education in Cambodia, which I accept. As was discussed at the hearing, while Cambodia’s education system is purportedly free it is common for additional fees to be required by teachers and schools which in turn impose a barrier for some families.[5] I accept that the applicant will receive a far lower standard of education and that it may be that his family will need to pay some informal fees. Noting that there will be two people who are able to work and that he will be living among an extended family I find that if there are any additional fees required to be paid that the family will be able to cover those fees (I make this finding based on the reasonable assumption that the informal fees for children in a poor rural village would not be so high that the families resident in the village can’t afford them).
[5] >
With regards to the lower level of education, as noted above, the basis upon which Australia’s protection obligations are triggered under s 36(2)(a) require that the essential and significant reason for the harm to be one of the five reasons outlined in s 5J(4)(a). As a lower standard of education does not meet any of these criteria, I find that the applicant does not meet the criteria of s 36(2)(a) for reasons of a lower level of education.
I now turn my mind to consider complementary protection and the requirement under the Act for the applicant to face a real risk of significant harm as a necessary and foreseeable consequence of removal to trigger Australia’s protection obligations.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

With regards to arbitrary deprivation of life, the courts have considered whether an inability to access the necessary medical support which in turn would lead to the loss of life constitutes arbitrary deprivation of life. In MZAAJ v MIBP [2015] in obiter dicta comments at [42] Judge Riley notes that the arbitrary deprivation of life ‘does not concern the consequences of scarce medical resources in developing countries.’
There is no claim that the applicant faces the death penalty.
Relevant to the applicant’s circumstances is that the definition of torture in the Act requires an element of intent. It is defined as ‘an act or omission by which severe pain or suffering … is intentionally inflicted on a person’ for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’.
When considering intentions of others, I note that there is no specific actor that is seeking to harm the applicant by way of depriving him of medical treatment or relevant to these aspects of significant harm, depriving him of an education to Australian standards. The differential level of medical treatment and education that the applicant can obtain in Australia relative to Cambodia is not a basis upon Australia’s protection obligations are triggered unless there is evidence of the government or some service providers intentionally withholding services to the applicant. This was discussed at the hearing and no evidence was provided that would suggest the applicant would be treated any differently to others. With regards to the hidden costs associated of health care or education, there is no information to suggest that doctors or teachers are requiring them to intentionally harming people such as the applicant.[6]
[6] ibid
Based on the above reasoning with regards to the family’s ability to subsist, I find that the applicant does not face a real risk of significant harm.
To avoid doubt, as noted above hardship would arise for both the mother and sister of the applicant that would create some psychological harm to the applicant, but I find that any such harm does not amount to significant harm.
For these reasons I find that the applicant does not meet s 36(2)(aa).
For the reasons given above, I am 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). I am 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).
Request for Minister Intervention
A submission was received by the Tribunal pertaining to the applicant. The submission asks the Tribunal to make a request for Ministerial Intervention. The letter updates the situation of the Australia citizen child who is now [age] years old and in [a grade]. The mother of both children is working [but] has struggled as a single mother with limited English.
Further details were provided regarding the father of the Australian citizen daughter. He was attacked in Cambodia while compiling the paperwork for a partner visa and after being treated in Cambodia for severe wounds inflicted by a scythe he returned to Australia where he died six months later from a stroke. It was claimed that had he not been attacked, the mother would have obtained a partner visa and in turn the applicant would be an Australian citizen.
Following the death of the father, the mother travelled to Australia on a visitor visa to look after the Australian citizen child who had temporarily been looked after by her half-sister on her father’s side in Brisbane.
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’.
I note that these guidelines indicated that cases which should be brought to the attention of the Minister include cases with unique or exceptional circumstances. This is one such case.
Examples of unique or exceptional circumstances are provided in the guidance and include, relevant to this matter:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The applicant’s sister is an Australian citizen. A decision to require the applicant to leave Australia would lead to the daughter losing her mother or her having to move to Cambodia. Either outcome would have serious, ongoing and irreversible harm on the Australian citizen. As such I refer the matter to the Department.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

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 3426

29 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction