1836946 (Refugee)

1836946 (Refugee) [2023] AATA 1343 (13 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836946, 1905979 & 2112151

COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nora Lamont
DATE:13 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicant protection visas in:
a.   matter 1836946 Safe Haven Enterprise visa       application made on 17 December 2018; and
b.   matter 1905979 Safe Haven Enterprise visa application made on 17 December 2018.
c.   matter 2112151 Safe Haven Enterprise visa application made on 10 September 2021.

Statement made on 13 March 2023 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party – participation in protest – extortion attempt and threats by supporters of governing party – unauthorised maritime arrival – one low-level incident 10 years ago – no in-depth knowledge of political issues or participation in Australia – no harm to wife and children in home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
DBB16 v MIBP (2018) 260 FCR 447
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 Immigration and Border Protection on 18 May 2017 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 Bangladesh, applied for the visa on 25 October 2016.
According to Departmental records, the applicant arrived in Australia by sea at [Location] [in] April 2013. Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447, the applicant is not an ‘unauthorised maritime arrival’

(as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
The applicant made a valid application for review on 17 December 2018. Case number 1836946 and 1905979 are duplicate copies of the same case and 2112151 is a repeat application.
The applicant appeared before the Tribunal on 9 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was not represented in relation to his review.
There are no non-disclosure certificates on the applicant’s file.
The applicant claims he was born in Bangladesh and has provided the Department with an original birth certificate. The Department found the applicant to be a national of Bangladesh and assessed his claims against Bangladesh as his receiving country. The Tribunal also sighted the birth certificate and discussed with the applicant his place of birth and home area. The Tribunal is satisfied that the applicant is a national of Bangladesh and has assessed his claims accordingly.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the delegate’s decision.
The issue in this case is whether the applicant will be harmed in Bangladesh due to his political opinion. For the reasons that follow in this decision, the Tribunal has concluded that the decision under review should be affirmed.
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 is [an age]-year-old married male from Gazipur Bangladesh. His wife and children remain in Bangladesh. His parents are deceased, and he has [brothers]. He first arrived [in] April 2013. He has remained in Australia since that time. In Bangladesh the applicant worked in [Work sector 1] and [Work sector 2]. He is currently employed in [Work sector 2] work in Queensland.
The applicant’s claims for all three cases (1836946, 1905979, 2112151) are consistent and can be summarised as follows: [1]
[1] AAT Folio &
·The applicant was involved with the BNP (Bangladesh National Party). His elder brother was involved with the Awami League (AL).
·was put in jail, and they protested.
·In January 2013 AL people threatened him, demanding money from him, saying they would kill him if he did not pay.
·The applicant left Bangladesh for this reason.
·The applicant was forced to leave Bangladesh as he is a supporter of the BNP, and was receiving threats from the AL, who are in government.
·During the election he worked with other BNP supporters, canvassing for votes for the BNP.
·The AL tried to get the applicant to join them, but he refused.
·He was afraid of the AL supporters, who threatened him, and tried to avoid them.
·His brother was involved with the AL, but as he had no position, he could not protect the applicant.
·One day the applicant got into a discussion at a tea stall about an international speaker Delwar Hossain Sayeedi who was in jail. He was threatened by members of the AL who were in the tea stall because of his opinion.
·They demanded he pay them Taka 50,000 or they would kill him.
·A friend who was in the tea stall helped him to get away.
·Out of fear he went to Dhaka. He stayed with a friend who introduced him to someone who arranged for him to escape Bangladesh by boat.
·As the government is supported by the AL the authorities would not protect him.
·If he returns to Bangladesh, he will be harmed or killed by AL supporters because he supports the BNP and protested the arrest of the international speaker.
Tribunal Hearing
The applicant appeared before the Tribunal on 9 March without representation. He was assisted with the help of an interpreter in the Bengali language and his friend accompanied him as a support person but did not give evidence.
The applicant stated that he completed Year 8 in schooling and then started working in [Work sector 1]. I asked him why he came to Australia. He said that he protested against the imprisonment of Delwar Hossain Sayeedi and people said mean things to him.
He said Sayeedi was an innocent person, and an international speaker. The applicant was involved in a verbal altercation, and he was told to pay Taka 50,000 or be killed.
I asked the applicant how he felt about Mr Sayeedi being convicted of rape and murder and he said it was all lies and made up.
He said the verbal altercation happened in February of 2013 at a tea stall. There was about 20-30 people there and he wanted to protest against it, so he got into an altercation with a man he knew who was a supporter of the Awami League. I asked him why he would get into an altercation with someone he knew was an Awami League supporter and he responded he just wanted to protest.
I asked how it started and he said the other man said Syeedi was a killer. He knew he was lying, and he stood for the truth, and he couldn’t keep silent. He said many people supported him, but they kept silent. I asked him why they demanded money from him? He said after that incident it was dangerous for him to stay and if he paid, they would not annoy him. He decided to leave. I asked if he asked him to pay the Taka 50,000 in the tea stall and he said no he asked him later. He sent a third person to his house.
I asked him why he just didn’t go to the police, and he said the police are politically motivated everyone knows that they work for the party, and they shoot people so there was no point.
The applicant said the next month he left the country. I asked him if he had other incidents prior or after this event and he said no. He said that this was the reason he came to Australia.
I asked him why he was so passionate about supporting Mr Syeedi and he said he is a religious scholar and speaker. I asked him again when this happened, and he said February. I told him that in his application(s) he had stated it took place in January. He said it was more than 10 years ago. I asked him if he was political before this incident, and he said that he was a supporter of the BNP. I asked what he meant by being a supporter and he said that Rhaman (the founder of the party) was a good man.
I asked him how he got away from the tea stall and he said a friend helped him escape.
I asked him to be more specific about his support for the BNP and he said during the elections he took part in their rallies and campaigns. I asked if he was a member of the BNP and he said he was not he just went to rallies. I asked if his brothers supported the BNP and he said all except his older brother who supported the Awami League.
He was also just a supporter he didn’t have any official position.
I asked the applicant to explain to me why he supported the BNP. He said it is a good political party and the founder was a great man. I asked him if since he was in Australia, he had any involvement with the BNP or their affiliates and he said no.
I asked him to explain how the Awami League was pursuing him to join them. He said they asked him to join, and they put the pressure on him, so he left the country.
I asked him if it was typical for them to ask him for money rather than harming him. He said political parties hate in different ways and that whatever he thinks is right he will stand for, and he won’t back down. He said if the BNP ran the country life would be better. I said but the BNP obviously had a checkered past themselves and wasn’t the former PM convicted of charges. The applicant said he completely disagreed this was made up; it is all false and politicised.
We spoke about his wife and children being left behind in Bangladesh. He said his wife went to her parents and only recently moved back to the house and in February she received some threats. I said I found that to be a bit unusual after 10 years for one incident in a tea stall they were still looking for him. He said the authorities don’t work in ways we deserve.
I asked him one more time why he supported Syeedi and he said he was a scholar and a nice man that has done nothing wrong. I asked him what he thought would happen to him if he was to return to Bangladesh. He said it would be difficult for him to survive. They could kill him. I said half the country supports the BNP so why would they kill you? He said he was different because he had an altercation with someone. I asked him if he could move somewhere else and he said how could he live somewhere else they know him and have his photograph. I said so this man must be powerful if he can track you down and he said no one knows he is in Australia.
I asked him if the BNP got into power tomorrow would he want to go back and he said he would not have a problem. Prior to the one event he had an ordinary life, a simple life.
Country Information
Current country information on the political situation in Bangladesh is as follows: [2]
POLITICAL OPINION (ACTUAL OR IMPUTED)
[2] DFAT Country Information Report Bangladesh November 2022
3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s DFAT Country Information Report Bangladesh November 2022 21 founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
3.70 social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur. Awami League (AL).
3.71 The Awami League (AL) was established in 1949, with Mujibur Rahman, the father of current Prime Minister Sheikh Hasina, playing a key role. It has been in power since 2009.
3.72 At the top of the party is the Central Committee, known as the Presidium. There are 15 members of this committee, including the Prime Minister. The Presidium is part of an 81-person Central Working Party and is supported by an advisory committee of technical advisers. Each district and upazila has its own committee and people join political auxiliary organisations and rise up through the ranks.
3.73 The AL has made efforts in recent years to increase social inclusion, including through the recruitment of minorities into the police and armed forces. Some minority groups in Bangladesh told DFAT that they had experienced less discrimination and violence under the AL in its recent terms (compared to DFAT Country Information Report Bangladesh November 2022 22 earlier periods) and less discrimination and violence than when the (now opposition) Bangladeshi Nationalist Party (BNP) was in power.
3.74 Internal party violence has been reported in the AL, including in the lead-up to the 2018 election, and during sub-national elections and student organisation elections. This violence is usually about disputes over candidate pre-selection or internal disputes between businesspeople. While sometimes described as ‘factional’ violence, the ‘factions’ may in fact be personality or patronage-based rather than ideologically based. The party has strong disciplinary policies to deal with rogue candidates that can be activated in such circumstances to expel members from the party.

3.75 The party engages in recruitment activities throughout the year. Recruitment activities often have a festive atmosphere. DFAT considers it unlikely that people would be coerced into membership; there are many benefits to membership, such as political patronage, that mean volunteers are likely to join the party willingly.
3.76 Disputes between members have the potential to lead to violence. The extent of the violence, whether affecting a candidate or their supporters, would depend on the political and social profile of the disappointed candidate; and how much money and how many followers they have. High-profile political figures are more at risk of being involved in a violent dispute. Low-level figures who are not themselves engaged in violence are unlikely to experience violence from others. Overall, the AL occupies a privileged position in Bangladeshi society and DFAT assesses that AL supporters experience a low risk of official or societal discrimination or violence. Bangladeshi Nationalist Party (BNP).
3.77 The BNP is currently the main opposition in Bangladesh. It has formed government several times since Bangladesh was established in the 1970s. The party has significantly reduced in visibility in recent years. In part, this is because the BNP boycotted recent elections, claiming that they were fixed so that AL would win, a tactic the AL also used when the BNP was in power. In local government elections held in phases between 2020 and 2021, BNP candidates won 11 mayoral races (out of more than 800 across the nation) after boycotting most of the elections. The BNP traditionally has more support (but not power at present) in Sylhet, Rajshahi, Bogura, Noakhali, Comilla and Mymensingh.
3.78 The BNP Standing Committee is the top decision-making body of the party. Various ‘secretaries’ of internal committees have responsibility over political portfolios, such as foreign affairs or information. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.
3.79 The BNP has a large diaspora network and is very engaged with overseas Bangladeshis and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visas to visit Bangladesh denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their members while in Australia.
3.80 BNP figures allege that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported. The BNP claims that its supporters have been arrested during protests for alleged criminal damage or assault on police. BNP members also allege that violence against them perpetrated by AL members occurs with impunity.
3.81 The former BNP Prime Minister, Khaleda Zia, was convicted in February 2018 on graft charges and sentenced to five years in prison, and to another seven years on a separate corruption charge in October DFAT Country Information Report Bangladesh November 2022 23 2018. The BNP claims that the charges against Zia are politically motivated. At the time of writing, Zia is still imprisoned and DFAT is aware of media reports that suggest that she is unwell. Zia has been allowed to serve her sentence at home and is receiving treatment in Bangladesh but has not been allowed to go abroad for treatment. Protests in November 2021, demanding that Zia be allowed to go overseas to seek treatment, attracted thousands, according to Al Jazeera, demonstrating BNP’s continued capacity to attract supporters.
3.82 There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
3.83 False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegation of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.
Findings
I accept that the applicant had some sort of altercation or verbal argument with an Awami League supporter ten years ago in a tea stall. I also accept based on the applicant’s own evidence that this was the only incident he had and that prior to this he was living an

ordinary life.
However, for the following reasons the Tribunal does not accept that the applicant was told to pay Taka 50,000 or be killed or that the incident drove the applicant to leave Bangladesh in fear.
The applicant was not a member of the BNP rather he was a supporter. He never officially joined the party. I find that his profile as a political activist doesn’t rise to level of fearing the authorities or the people he had an argument with. The applicant had one incident at a tea stall then returned home. After that he claims someone asked him for the Taka 50,000 or he would be killed. The applicant said they came to his home, and he didn’t want to pay it. If the applicant really feared for his life, he would have informed the authorities or left with his wife and children not left them by themselves. The Tribunal acknowledges that the applicant stated his wife and children went to her parents’ house and only just returned recently however, it also seems unrealistic that they would be gone for ten years from the home and when they return the Awami supporter is still looking for him.
The Tribunal has considered that the applicant’s claims that people have come by his home last month some ten years later looking for him to be unrealistic given there was only one incident in a tea stall.
The Tribunal has also considered that when asked why he was a supporter of the BNP and of Mr Syeedi he could only say he was a scholar, international speaker, and a nice man. The applicant did not have any further reasons. If someone’s political views were that entrenched the Tribunal would expect a more in-depth discussion or more reasons.
The applicant has been in Australia for ten years and has not participated in any political rallies or engaged the BNP affiliates in Australia in any manner.
Country information does not support the notion that the applicant faces retaliation for his opinions upon return:
3.82 There are fewer examples that demonstrate a pattern of violence or discrimination against low-level BNP members, than for higher level BNP leaders. Those who engage in low-level BNP activity (for example attending rallies or attempting to convince others to join the party) are less likely to be arrested than are higher profile actors. For low-level actors, the nature of their activities is unlikely to attract attention in the first place. Those with seniority and reputation are more likely to attract government attention but any member could, in theory, be arrested on charges of violence, obstructing police, corruption or other charges. One source told DFAT that it would be necessary to hold an official position in the party to be arrested. This may be a useful distinction but does not rule out potential arrest of a person who does not hold an official position, even if it is unlikely.
The Tribunal is aware that politics in Bangladesh is a widely debated and sometimes dangerous matter and that the country is divided between the Awami Party and the BNP. However, the applicant has not engaged to a significant level to give him any kind of profile and lead the Tribunal to believe that upon return he will be impacted by his political opinions.
Cumulatively and after having considered all the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution for his political opinion, or for any other reason mentioned in s 5J(1)(a) of the Act.
Conclusion
The Tribunal finds the applicant does not face a real chance of serious harm on return to Bangladesh for being a BNP supporter or for any reason related to his politicl opinion. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as required by s 5Jof the Act and therefore finds that the applicant is not a refugee within the meaning of s 5H.
Based on the evidence and information available to it, the Tribunal does not accept that the applicant faces a real chance pf persecution for any reason on return to Bangladesh.
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Bangladesh, there is a real risk that the applicant will suffer significant harm from the Bangladesh authorities, or his political detractors or for any reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas in:
b.matter 1836946 Safe Haven Enterprise visa application made on 17 December 2018; and
c.matter 1905979 Safe Haven Enterprise visa application made on 17 December 2018.
d.matter 2112151 Safe Haven Enterprise visa application made on 10 September 2021.
Nora Lamont
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1343

13 March 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction