1837073 (Refugee)

1837073 (Refugee) [2023] AATA 2536 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Emily Anne Young
CASE NUMBER: 1837073

COUNTRY OF REFERENCE: Stateless
MEMBER:Shahyar Roushan
DATE:21 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 June 2023 at 4:28pm
CATCHWORDS
REFUGEE – protection visa – stateless – race – Rohingya – nationality – stateless – religion – Muslim – political opinion – demonstrations against the government – particular social group – failed asylum seeker – education – employment – forced labour – Myanmar citizenship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant who claims to be stateless, arrived in Australia [in] October 2012 by sea at the Territory of Ashmore and Cartier Islands (Ashmore Reef).
Prior to June 2013, asylum seekers who arrived by boat at Ashmore Reef were considered to be ‘unauthorised maritime arrival’ (UMA), as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act) and subject to the bar against UMAs applying for visas under s 46A. Typically, they were brought onshore and granted bridging visas and Temporary Safe Haven visas (TSHVs). At the time it was considered that the grant of the bridging visa removed the s 46A bar (applicable to UMAs), so the TSHVs were granted to invoke the s 91K bar, with the object being to prevent any boat arrivals from applying for a permanent protection visa in Australia.
As the applicant was initially considered to be a UMA, he was granted a TSHV on 30 May 2013, triggering, as it was thought at that time, the s 91K bar.
On 25 January 2016, the applicant lodged an application for Temporary Protection Visa and a delegate of the Minister refused the application on 22 February 2017.
The applicant subsequently applied to the Immigration Assessment Authority (IAA) for a review of the delegate’s decision, as he was thought to be subject to the ‘fast track’ review process. The IAA affirmed the decision under review on 15 July 2016.
On 16 November 2017, the applicant sought a judicial review of the IAA decision.
On 6 August 2018, the Full Federal Court in DBB16 v MIBP (2018) 260 FCR 447 determined that a person who arrived in Australia by sea at Ashmore Reef is not a UMA. Accordingly, the applicant is not a ‘fast track applicant’ and a decision refusing to grant them a Temporary Protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal).
[In] December 2018, the then Federal Circuit Court of Australia declared that the applicant was not a UMA and quashed the decision of the IAA.
On 18 December 2018, the applicant applied for a review of the delegate’s decision to the Tribunal.
On 4 May 2021, the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63 determined that s 91K does not apply to a person who arrived in Australia by sea at Ashmore Reef. Therefore, the application for a Temporary Protection visa is not subject to the s 91K bar and the applicant had made a valid application for review on 18 December 2018.
This is a review of the delegate’s decision of 22 February 2017 to refuse to grant the applicant a Protection visa by the Tribunal.
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application, the applicant was born in [specified year] in [Town 1], Myanmar to Sunni Muslim parents. His father, who was of Rohingya ethnicity, has been missing since 2005. His mother and [siblings] continue to reside in Myanmar. He specified his ethnicity as Rohingya and declared both parents to be ‘stateless’.
The applicant resided in [Town 1] until 2009, when he relocated to Malaysia. He was later joined in Malaysia by his former wife and their son. In 2012, he travelled to Australia from Malaysia on his own. Soon after his arrival in Australia, his marital relationship ended.
In a statement attached to his Temporary Protection visa application form, the applicant made the following claims.
He was born into a ‘poor’ family in Myanmar. His father was a ‘tenant farmer’ and his mother a housewife. He only attended school for two years as his family could not afford to send him to school.
In 2005, his father was taken away by the army to work as a ‘porter’. After two years, they were informed by a family friend that his father is in prison, serving a life sentence. The search for his father was unsuccessful and he has not been seen since 2005. He believes his father was killed by the army.
In Myanmar, he was employed as [an occupation 1] and was the main breadwinner for his family. In 2007, he participated in anti-government demonstrations in support of democracy and release of prisoners. When the police started arresting people, he escaped to [Village 1] by boat. He remained and worked in [Village 1] before fleeing to Malaysia in 2009. His wife, son, mother and siblings remained in [Town 1]. He lived and worked in Malaysia unlawfully and was subjected to constant police harassment. On one occasion, he was arrested and jailed for two months before being taken to the [named region]. He paid bribes to secure his release and returned to Penang, where he applied for refugee status with the UNHCR in Malaysia. After he was issued with a card by UNHCR Malaysia, he faced less harassment by the police. In 2010, his wife and son joined him in Malaysia, and they lived together in Penang
Life for Rohingyas is difficult in Myanmar and they are ‘oppressed by the Burmese’. His mother is fearful of the phones being tapped and does not say too much about the situation on the phone. In Myanmar, he does not have any rights, including access to education, work, housing and healthcare. He has no freedom of religion. He has no right to own a property and has no identity card in order to obtain a licence or to open a bank account.
As his father was taken by the military and has never returned, he is fearful of something similar happening to him. He fears he will be arrested and harmed by the Burmese authorities because he is a Rohingya Muslim. There is nowhere in Myanmar that he could live in safely.
In support of his application, the applicant provided to the Department a copy of his UNHCR card, which expired [in] 2014.
In a further statutory declaration, declared on 13 January 2016, the applicant stated that he separated from his wife in 2013 and he has no contact with her and their son. He further stated that Rohingyas are not recognised in Myanmar and do not have any legal rights. He is not able to operate a business and his mother’s shop was ‘destroyed’ four months ago by Buddhist Monks.
The interview
The applicant attended an interview with the Department on 30 November 2016. The interview was conducted with the assistance of an interpreter in the Burmese/Myanmar and English languages. Where relevant, the applicant’s oral evidence to the delegate is referred to below.
The delegate’s decision
The delegate accepted that the applicant is from [Town 1] Township in Myanmar and that he is a Muslim. However, the delegate was not satisfied that the applicant is a Rohingya or that he is stateless because he is undocumented. The delegate found, based on the applicant’s evidence at the interview, that he is a citizen of Myanmar as his mother is a citizen of Myanmar. The delegate accepted that the applicant’s father may have been taken by the authorities for forced labour and has been missing since 2005. He also accepted that the applicant may have participated in a protest in 2007. However, he did not accept that the applicant would be of any interest to the authorities. The delegate found that the applicant would not face a real chance of serious harm for the reasons of his religion or political opinion. The delegate also found that there is no real risk that the applicant would face a real risk of significant harm if he were to be removed to Myanmar.
The review application
On 18 December 2018, the applicant applied for a review of the delegate’s decision. He was represented in relation to the review by Ms Emily Young.
The hearing
The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments at a ‘directions’ hearing. The hearing was conducted with the assistance of an interpreter in the Burmese and English languages. Ms Young also attended the hearing. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
Post-hearing submissions
Following the hearing, Ms Young forwarded a submission to the Tribunal, addressing a number of issues raised with the applicant at the hearing. Ms Young also submitted a statutory declaration declared by the applicant on 13 June 2023 and a statutory declaration declared by [Ms A], an acquaintance of the applicant, on the same date.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal did not find the applicant to be a reliable witness and has significant doubts regarding the credibility of aspects of his evidence.
As noted by the delegate in his Decision Record, the applicant had stated during his arrival interview that he and his entire family members were citizens of Myanmar. He also stated that he had a birth certificate and a marriage certificate and that it would be possible for him to provide a copy of his marriage certificate. In his Protection visa application, however, he stated that he and all his family members are stateless. He also stated that his father was of Rohingya ethnicity and specified his own ethnicity as Rohingya.
At his Protection visa interview, the applicant told the delegate that his father was a Rohingya Muslim, and his mother is a Burmese Muslim. He did not know his father’s citizenship status or his mother’s ethnicity, but he confirmed that his mother is a citizen of Myanmar. The applicant was also unable to provide information as to how his father and his mother were able to marry in view of their different ethnicities.
At the Tribunal hearing, the applicant stated that he has no citizenship. He is a Myanmar Muslim and, as far as he knows, his father is of Rohingya ethnicity, and his mother is a ‘Myanmar Muslim’. When pressed in relation to his mother’s ethnicity, he claimed his mother to be of Bengali ethnicity. He added that he had never asked his mother what her ethnicity is, and they did not hold identification documents. When it was put to him that he had stated at his Protection visa interview that his mother is a citizen of Myanmar, he responded that this was an error by the interpreter assisting him at the interview. When pressed, he repeated that he is not in possession of any identification or citizenship documents.
In his statutory declaration of 13 June 2023, however, the applicant confirmed his ‘understanding’ that his mother is a citizen of Myanmar and that he is entitled to Myanmar citizenship for that reason. He had claimed to be stateless in the past because he was never in possession of identity documents and the fact that his father was not entitled to citizenship as a Rohingya. He has now come to understand that lack of identity documents does not mean that he is stateless. He stated that his mother has confirmed that she is a Myanmar citizen despite her lack of identity documents, and that he is entitled to Myanmar citizenship. He also confirmed that his mother is of Bengali ethnicity.
In her post-hearing submissions, Ms Young stated that the applicant ‘confirms that he has known since he was young that his mother’s ethnicity is Bengali’ and that his ‘confusion’ at his Protection visa interview was a result of difficulty in understanding the interpreter. When he was asked about his mother’s ethnicity at the interview, the interpreter used a term for ‘ethnicity’ that exclusively refers to Myanmar’s major ethnic groups. At the hearing, however, the interpreter used a different term for ‘ethnicity’, which encompasses broader ethnic groups, including non-Burmese ethnic groups. As a result, the applicant was able to confirm that his mother is of Bengali ethnicity.
The Tribunal has difficulty reconciling the various inconsistencies and changes in the applicant’s evidence. The Tribunal also finds his explanations for the shifts in his evidence, where provided, not to be satisfactory. The Tribunal, therefore, does not accept that the applicant’s father was of Rohingya ethnicity and questions remain in the Tribunal’s mind as to his mother’ s ethnicity. The Tribunal, however, accepts that the applicant’s mother is a citizen of Myanmar as stated by the applicant in his post-hearing statutory declaration. In view of the fact that, according to the applicant, his mother had recently confirmed that she is a citizen of Myanmar, the Tribunal does not accept the applicants’ claims that neither she nor he are in possession of any identity documents. On the basis of the evidence before it, the Tribunal finds that the applicant is and has always been a citizen of Myanmar.
As the Tribunal has rejected the applicant’s claim that his father was of Rohingya ethnicity, the Tribunal does not accept that the applicant is of Rohingya ethnicity. The applicant, however, has consistently claimed to be a Sunni Muslim and the Tribunal is prepared to accept this claim. The Tribunal is also prepared to accept that the applicant’s father may have been recruited for forced labour by the Burmese military nearly 20 years ago and has been missing ever since. The Tribunal further accepts, as did the delegate, that the applicant may have participated in demonstrations in his home area in around 2007 in support of prisoner release in Myanmar, which had ultimately led to his relocation to Malaysia.
Since the applicant’s arrival in Australia, the situation in Myanmar has undergone significant change. The optimism that sprouted following the 2010 elections and led to transformative political and economic reforms, the release of political prisoners and the election of Aung San Suu Kyi to parliament, blossomed into a short-lived democratic reality in November 2015 when Myanmar held its first credible national elections in more than half a century. Having won 80 per cent of the available seats, the NLD assumed power, and although Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her, she was appointed State Counsellor and Foreign Minister.[1] In subsequent elections held in November 2020, the NLD won in a landslide, paving the way for Aung San Suu Kyi to become president. However,
[the] military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[2]
[1] DFAT, DFAT Country Information Report – Myanmar, November 2022.
[2] Ibid.
In a recent report on the situation regarding human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:
Two years after launching a coup, the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[3]
[3] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023, A/HRC/52/21.
The report referred to the ‘catastrophic’ human rights situation that continues to fester and noted that conditions have worsened during the second year since the military coup was launched. It stressed:
People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.
Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[4]
[4] Ibid.

In its most recent Country Information Report in relation to Myanmar, DFAT also provided a grim and alarming assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:
Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[5] (Emphasis added.)
[5] DFAT, DFAT Country Information Report – Myanmar, November 2022.
With regard to Muslims, DFAT has reported that Muslims in Myanmar experience discrimination and restrictions on their ability to practise their faith. They are frequently denied basic rights and services on the basis of their religion. Anti-Muslim sentiment is prevalent in Myanmar and is circulated through social media, state institutions and mainstream news websites. Muslims are often called by racial slurs and subject to hate speech. The military has ‘strong links’ with ultranationalist Buddhist movements such as Ma Ba Tha and the 969 Movement, who have been influential in fomenting anti-Muslim hatred and violence in Myanmar.[6]
[6] Ibid.
The Tribunal accepts that if the applicant were to be removed to Myanmar, he would be returning as a failed asylum seeker, and it would be reasonable to assume that the Myanmar authorities would be aware that he was returning in this capacity.
According to DFAT:
given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[7] (Emphasis added.)
[7] Ibid.
The Tribunal finds that as a returning failed asylum seeker, the applicant would likely be accused of being opposed to or having criticised the regime regardless of his history, profile, past and/or present activities, or any details concerning the nature of his claims. The Tribunal is of the view that this imputation of anti-regime political opinion would be triggered first and foremost as a consequence of the applicant being removed to Myanmar as a failed asylum seeker. The Tribunal finds that failed asylum seekers in Myanmar constitute a particular social group within the meaning of s 5L of the Act.
Having considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar, there is a real chance that he would be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his membership of the particular social group of failed asylum seekers in Myanmar, his religion and his imputed political opinion. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.
The applicant travelled to Malaysia via [another country] in or around 2009 and resided in that country until he departed for Australia by boat in 2012. The Tribunal accepts that during that time the applicant was issued with a UNHCR card, indicating that he was accepted as a refugee in Malaysia. The Tribunal also accepts that the applicant does not hold a passport at present.
The sources before the Tribunal indicate that Malaysia is not a party to the 1951 UN Refugee Convention and does not have an asylum system in place to regulate the status and rights of refugees. According to DFAT, Malaysia does not have any legislation in place specifically dealing with asylum-seekers or refugees and the government classes all undocumented migrants, including refugees and asylum seekers, as ‘illegal immigrants’.[8] Moreover, UNHCR recognition does not entitle a refugee to Malaysian documentation, to remain lawfully in Malaysia, to work or to re-enter Malaysia on any basis.[9] The Tribunal, therefore, finds that there is no presently existing right, however expressed, for the applicant to enter and reside in Malaysia or any other country. It follows that s 36(3) does not apply.
[8] Ibid.
[9] See UNHCR Global Appeal 2014-2015 – Malaysia, 2014, Hong, C., “Refugees – Getting Them Their Rights”, Catalyst Asia, 23 February 2017,
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior 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 2536

21 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies