1837363 (Refugee)

1837363 (Refugee) [2023] AATA 475 (3 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Kathleen Coffey
CASE NUMBER: 1837363

COUNTRY OF REFERENCE: Eritrea
MEMBER:Bridget Cullen
DATE:3 February 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
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Statement made on 3 February 2023 at 4.21pm
CATCHWORDS
REFUGEE – protection visa – Eritrea – religion – Christian – Pentecostal faith – detention – church closure – killing of the applicant’s husband – disappearance of family members – physical disability – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 6 December 2018 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a citizen of Ethiopia, applied for the visa on 10 April 2017. The delegate refused to grant the visa on the basis that the Applicant was not someone Australia had protection obligations to, either as a refugee, or under the complementary protection criteria.
The Applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s daughter, [Daughter A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The Applicant was represented in relation to the review by Ms Kathleen Coffey of Aum Lawyers. The representative attended the Tribunal hearing.
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 issue in this case is whether the Applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal, in reaching its decision, has the following material before it:
·The Department File ([number]), which contained all material before the delegate at the time of their decision to refuse the Protection Visa;
·Submissions from the Applicant’s representative;
·The Applicant’s statement;
·Evidence in relation to the Applicant’s health;
·Paediatrician letter in relation to the Applicant’s grandchild;
·Evidence in relation to the Applicant’s sons’ status in their respective countries; and
·Statement of the witness that attended the Tribunal hearing.
The Applicant’s claims were summated by the delegate as follows:
·She is a member of an unregistered religious organisation, and she has been targeted for persecutory measures by the current Eritrean government. Due to the Applicant’s strong religious commitment and being a member of [Church 1] in Asmara, she has been subjected to untold misery and denial of her human rights. Her church has been currently closed and most of its members detained and others missing.
·She was raised an Orthodox Christian but converted to the Protestant faith. The Applicant and her husband were married in 1974, but they remained within their respective faith until the Applicant surrendered to the faith in 2008. All her children accepted Protestantism at different stages which was the main influencing factor for the Applicant to join the Protestant faith in 2008, as the last member of the family.
·The Applicant’s husband served in the church located in close proximity of their family home, in various capacity as leader, [specified roles], while the Applicant largely supported her husband’s duties and responsibilities. The Applicant asserts that she ensured their children grew up in strict Christian discipline while attending regular Sunday church programs. She was an active participant of the home Bible studies, group fasting and prayer meetings, while also making financial contributions of various amounts each month.
·The Applicant was incarcerated [in] February 2010 and spent two years in prison where she experienced torture and mistreatment. After her release, due to the physical abuse she endured while in detention and her undertaking to abandon the faith; fearing the consequences she abstained from actively practising the faith. She was forced to avoid home visits but remained supportive of her husband in his church endeavours and continued her financial and material contribution.
·As her husband was one of the leaders, their home was always frequented for social counselling, group prayers and bible discussion which was exercised with extreme care and caution until her husband was arrested [in] March 2014. On this day the Applicant was at home, but security agents did not take her along with her husband, and she thinks this was mainly because of her physical disability and the fact that she had not been visibly exercising her religious rights by largely confining herself in home prayer. She asserts that she has always been on their watch list, as any breach of condition of her earlier release would mean automatic death.
·She lost her husband in September 2014, when she claims he was taken away from home and left for dead after a few days on the streetside.
·She claims that the Eritrean government’s repression and persecution of the Protestant faith has no other legitimate reason that to deny one’s religious liberty. As a member of the church and supporter of her husband who is in leadership, she has been treated severely and incarcerated in appalling conditions for her faith.
·She exited the country legally after she was assisted to obtain all travel documentation by bribing an official in excess of [amount] Nafka. As she was not a public figure, leaving the airport has not posed serious threats as the bribe she had to give has helped all the way for her departure.
·Since her arrival in Australia, she has been devastated by a security raid on her family home and the disappearance of her daughter and granddaughter.
Relevant Country Information
The Tribunal has considered the following relevant country information from the most recent DFAT Country Information Report Eritrea, dated 8 February 2017:
History
A number of Eritrean groups responded by commenced an armed struggle for independence, which lasted 30 years and cost the lives of approximately 65,000 Eritrean soldiers and 50,000 civilians. Over the course of the conflict a Marxist-inspired group, the Eritrean People’s Liberation Front (EPLF), gradually sidelined its rivals. The EPLF captured the Eritrean capital Asmara in May 1991, ending the conflict. 99.8 per cent of Eritreans voted for independence in a UN-supervised referendum in 1993, and Eritrea became an independent state later in the same year. The EPLF transformed into a political party, the People’s Front for Democracy and Justice (PFDJ), led by Isaias Afwerki, who became the country’s first (and, to date, only) President.
The post-independence relationship with Ethiopia began well. However, tensions over the lack of an officially demarcated border led to a renewed outbreak of fighting from May 1998 to June 2000 that killed between 70,000-100,000 Eritreans and Ethiopians. Although a UN Commission declared the demarcation of the common border in April 2002, Ethiopia refused to recognise it and continues to occupy territory officially granted to Eritrea. Eritrea has long sought international support for its calls for Ethiopia to implement the Commission’s decision. There have been no meaningful bilateral attempts to resolve the dispute, and small-scale skirmishes continue to occur regularly along the border.
The aftermath of the border war saw an increasingly autocratic style of government develop in Eritrea, with the government cracking down heavily on any form of internal dissent or criticism. Eritrea’s relationship with the international community also deteriorated considerably, with Eritrea expelling North American and European peacekeepers in 2005 and a number of UN staff in 2006. In 2009, the UN imposed sanctions on Eritrea for its alleged support for Islamist insurgents in Somalia, a charge Eritrea has denied (see ‘Sanctions’). Most international NGOs departed Eritrea from 2005-11, with the few remaining (primarily UN agencies) subject to tight restrictions on their movements and activities.
Large numbers of Eritreans have left the country in recent years, with most seeking asylum in Europe. Eritrea marked the 25-year anniversary of the end of the independence war in May 2016, with celebrations strongly attended by diaspora members from around the world.
Religion
The Eritrean government strictly oversees the activities of religious communities in the country. The government officially recognises only the Coptic Orthodox Church of Eritrea, Sunni Islam, the Roman Catholic Church, and the Evangelical Church of Eritrea. These groups are required to submit activity reports every six months, and have been instructed not to accept funds from co-religionists abroad (an order with which the Eritrean Orthodox Church reportedly said it would not comply). They have also had religious leaders appointed by government officials, including the Patriarch of the Eritrean Orthodox Church and the Mufti of the Eritrean Muslim community. Hundreds of Orthodox Christians and Muslim religious leaders and laypersons who protested these appointments reportedly remain imprisoned. The previous Eritrean Orthodox Patriarch Antonios, who protested government interference in his church’s affairs, has reportedly been held incommunicado under house arrest since 2007.
In 2002, the government imposed a registration requirement on all other religious groups, who are required to apply annually for registration with the Office of Religious Affairs. Registration requirements include providing detailed information about foreign sources of funding, leadership, assets and activities. Proclamation No.73/1995 prohibits religious groups from undertaking political activities.
To date, no other religious communities have successfully registered in Eritrea, although several have attempted to do so (including the Baha’i community, Presbyterian Church, Methodist Church and Seventh-day Adventists). Unregistered religious communities lack a legal basis on which to practice their faiths, including holding services or other religious ceremonies. Most houses of worship of non-registered religious communities have reportedly been closed, while government approval is required to build any new religious venue. Leaders and members of unregistered communities that continue to practice their faith, DFAT Country Information Report ERITREA 12 including through holding a joint prayer session at home, or attending a wedding or funeral, are at risk of arrest. The Eritrean government and Eritrean religious leaders do not publicise arrests and/or releases, and government secrecy and intimidation makes documenting the exact numbers of such cases difficult.
DFAT assesses that ordinary members of registered religions are generally able to practice their faith freely. However, those who protest government interference in the running of their religious organisation’s affairs face a high risk of imprisonment, regardless of whether they hold a leadership position or are an ordinary member. DFAT assesses that members of unregistered religious communities face a high risk of official discrimination in Eritrea, as they are unable to practice their faith freely.
Pentecostal and Evangelical Christians
The January 2016 USCIRF report found that newer religious communities such as Pentecostal and Evangelical Christians comprised the majority of religious prisoners in Eritrea. The Eritrean government has reportedly characterised these groups as being part of a foreign campaign to infiltrate the country, engaging in aggressive evangelism alien to Eritrea’s cultural traditions, and causing social divisions. Security forces have reportedly arrested followers of these faiths for participating in clandestine prayer meetings and religious ceremonies. Treatment of these groups varies by location. The US State Department reported that in 2015 some local authorities had denied water and petrol to Pentecostal groups. The USCIRF reported that it had confirmed almost 200 arrests of Pentecostal and Evangelical Christians in 2015. Pentecostal and Evangelical Christians released from prison have reported being pressured to recant their faith, forced to sign a statement that they would no longer gather to worship, and warned not to re-engage in religious activities.
DFAT assesses that Pentecostal and Evangelical Christians face a high risk of official discrimination in Eritrea as they are unable to practice their faith freely, and risk government harassment or arrest and detention should they attempt to do so.
The Tribunal has been provided with additional country information by the Applicant, which is to the same effect as the DFAT Report.
The Applicant’s Claims
The Tribunal accepts, based upon the identity documents before it, that the Applicant is a citizen of Eritrea. Further, the Tribunal accepts that the Applicant has no right to enter or reside in, temporarily or permanently, any other country.
There are multiple aspects of the Applicant’s claims that the Tribunal is unable to corroborate and around which the Tribunal has some doubts about the veracity of the Applicant’s claims. The Tribunal harbours some concern that the claims made have not entirely been those of the Applicant. The Tribunal notes that the delegate’s decision reflects that the Applicant conceded during her Departmental interview that her representative had made mistakes in her application. To be clear, the Tribunal has no concerns about the Applicant’s representation at the hearing of this matter, noting that the current representative came into this matter only relatively recently, and well after the Applicant’s claims were put forward to the Department.
The following passage in the delegate’s decision highlights one of the issues that has presented in relation to the assessment of the Applicant’s claims:
When asked whether she invited anyone to church, she explained that only her husband did so because she had children and was often tending to them. The Applicant was further asked about what actions of hers would indicate that she was a member of the church and she responded “nothing else”. Her written claims were put to her in which it states that she was an active member of the church involved in various activities of the church, including providing financial support and inviting others to attend the church. She responded that she was providing financial support to the church, but she did not invite anyone. The discrepancy between the Applicant’s written and verbal claims in regards her involvement and activities with the church were put to the Applicant to allow her an opportunity to clarify the inconsistency. She responded that perhaps there was a mistake and she questioned her representative regarding whether he had made a mistake in her written claims. It was put to the Applicant that there was a doubt in regards to whether she genuinely practised this religion, to which she responded that based on her age she would not lie in regards to this matter. It was then explained to the Applicant that her claims were being assessed to determine whether she was genuinely being persecuted and that the decision had nothing to do with her age and whether she would lie as a result. Her representative interjected and asked the interviewing officer to ask the Applicant specifically about the written claims detailing the Applicant’s claimed involvement with the church. The interviewing officer responded that she had asked the Applicant various questions to determine her activities with the church and to specifically ask the question in the manner that the representative had suggested would be coaching the Applicant to respond. When the discussion between the representative and the interviewing officer was interpreted to the client, she responded of her own that the written claims were incorrect. She explained of her own accord that she did not attend anyone’s house and gather for meetings.

The Tribunal notes that the Applicant’s representative at the time the application for the protection visa was made, and at the time the Departmental interview was conducted, had their registration suspended. That suspension took place while the Applicant’s matter was proceeding in the Tribunal. It is not the role of this Tribunal to determine whether the Applicant’s former representative engaged in any conduct that would contravene professional standards. That role belongs to the industry regulator, the Office of the Migration Agents Registration Authority.
The Tribunal does have the clear impression that there are some aspects of the Applicant’s own claims that she is perhaps not entirely familiar with, and further that are somewhat implausible. For example, the Tribunal does not accept that the Applicant, or her husband, were imprisoned. The Tribunal would expect, even in the absence of court documentation, that had the Applicant been in prison for two-years as claimed, that leaving Eritrea would have been difficult. The Applicant claims that she had been placed on a watchlist along with her husband. She says that her husband was taken into custody due to his religious practices in 2014. Yet, and despite being on a watchlist, the Applicant was able to lawfully depart Eritrea just two years later in 2016. The Tribunal thinks this entirely implausible, as the DFAT country information makes it clear that Eritrean citizens are subject to a high level of government supervision.
The Tribunal also does not accept that the Applicant’s daughter, [Daughter B], and her granddaughter, have disappeared in Eritrea following the Applicant’s arrival in Australia. The Tribunal asked the Applicant what steps she took to try and locate them. The Applicant did not take any active steps herself. She relied on her father for information, as he was still living in Eritrea, but has now passed away. The representative suggests that language barriers may have been an issue. The Tribunal accepts that language barriers always pose a challenge but thinks that for something as serious as the disappearance of a daughter and granddaughter, that some evidence of reports or consultations with police, humanitarian organisations, or other relevant bodies, could reasonably be expected. The Tribunal found the Applicant’s evidence to be unpersuasive on these matters. She could not provide meaningful detail.
The Tribunal considers the Applicant to be a particular vulnerable person, who does not speak English and has an elementary education only. She has never held a job in a paid capacity and has spent her life raising her family. She has significant physical health issues. The Applicant had to correct basic errors made on her claim to the Department, such as that she is in fact Eritrean. As lodged by her former representative, the application initially identified the Applicant as being Ethiopian. This collectively suggests to the Tribunal that it is highly likely that the Applicant did not have full awareness of the claims she had made, despite it being her responsibility to ensure their accuracy. It is the Tribunal’s view that the Applicant may have had assistance with her claims, and that the assistance may have resulted in her claims being presented in an inaccurate, or possibly embellished, way.
Irrespective of the Tribunal’s doubts about these aspects of the Applicant’s claims, the Tribunal does consider that the Applicant is a genuine practitioner of the Christian Pentecostal faith. It is this aspect of the Applicant’s claims that is foundational to her need for protection.
The Tribunal has had the opportunity to further query the Applicant, and her daughter, about her religious practices and those of her family more broadly. While the Tribunal does, as explained above, consider it likely that the Applicant’s claims have been embellished, it does accept that she was involved with [Church 1], together with her husband, in Asmara. Open media sources confirm that [Church 1] is associated with a “revival movement” – which supports the Applicant’s assertions that the church is of a Pentecostal nature. The Applicant provided her residential address, at the time of her application to the Department, as being in Asmara.
The Applicant’s daughter, [Daughter A], has converted to her husband’s Orthodox faith. As such, the Applicant (who resides with [Daughter A] and her family), is the only practising Christian Pentecostal person in their household. The Applicant has significant mobility issues and does not drive. Her mobility issues are supported by medical evidence that is before the Tribunal.
Given her limited access to transport, the family has made arrangements for the Applicant to practice her faith with her friend, a neighbour named [Friend A], who visits her once a week to pray together. The Tribunal considers this plausible in all the Applicant’s circumstances and accepts that her faith is meaningful to her.
If returned to Eritrea, the Applicant fears being targeted and harmed by Eritrean authorities because she is a Pentecostal Christian. Her fears of persecution are heightened given her female gender, extremely limited means to support herself, physical disability, and the fact that she would be returning to Eritrea after a significant period away.
The Tribunal finds that there is a real chance that, if the Applicant returned to Eritrea, she would be persecuted as a Pentecostal Christian, and that this persecution would involve serious harm to the Applicant, and systematic and discriminatory conduct towards the Applicant by Eritrean authorities. The Applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution in Eritrea. The Tribunal finds that the Applicant has a well-founded fear of persecution as defined in s 5J of the Act.
The Tribunal finds that the real chance of persecution of the Applicant relates to all areas of Eritrea, and there are no effective protection measures available to the Applicant in Eritrea.
The Tribunal finds that the Applicant is a refugee as defined by s 5H(1)(a) of the Act.
For the reasons given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
Bridget Cullen
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 475

3 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice