1900338 (Refugee)

1900338 (Refugee) [2022] AATA 4930 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ricardo Viana
CASE NUMBER:  1900338
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Nora Lamont
DATE:26 October 2022
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.

Statement made on 26 October 2022 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Venezuela – imputed political opinion – supporter of the Primero Justicia Party – attending anti-government protests – business owner – fear of physical harm from irregular armed gangs trying to extort money from business owners – children are Australian citizens – separation from children – mental health concerns – decision under review remitted
LEGISLATION
Migration Act 1958, ss 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 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 Venezuela, applied for the visa on 21 March 2018.
The applicant appeared before the Tribunal on 12 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
There are no non-disclosure certificates on the applicant’s file.
The applicant claims to be a national of Venezuela and based on copies of the applicant’s passport which was provided to the Department and to the Tribunal, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Venezuela and has assessed her claims against that country in relation to s.36(2)(a) and s.36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any third safe country for the purposes of s.36(3) of the Act.
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
Claims
Initially the applicant set out her claims in her written protection visa application. In summary the applicant claims to fear persecution from the authorities in Venezuela for her political views. The applicant’s claims as presented to the Department and the Tribunal can be summarised as follows: [1]
[1] [Department file number deleted]
•The applicant has supported the Justice First party.
•The applicant was a [senior position holder] of a small business in Tachiro which was a [product] importing business.
•Around August 2012 her business partner received a call which threatened that he needed to make a monthly payment otherwise there would be dire consequences.
•Once her business partner departed the applicant took over the company. The calls continued asking for her business partner and so she answered with that her partner was out of the country. One call she received stated her name and threatened that she and her family will suffer. The calls continued from August 2013 until about January 2014.
•A note was pushed under her office door one day and she was then approached by two men carrying rifles at her workplace. They demanded a monthly payment.
•On 20/11/2014 the applicant decided to make a complaint to the police. At the police stations she learnt that other businesspeople in her area had been threatened. Some who had refused to pay had been killed or had their families harmed.
•The applicant would sometimes stay with friends rather than stay at home as the stalkers knew where she lived.
•Around June 2015 received a further call which gave details of her car. The applicant thought that this information came from the police and was given to the caller.
•The applicant then decided to travel to Australia.
•The applicant’s father was shot and killed. The applicant believes his death is related to the threats the applicant received.
•The applicant did not organise any political protest but participated in rallies in San Cristobal during the last election.
•If the applicant returned to Venezuela because these groups are getting stronger and no one from the police or other authorities can provide protection.
•Her mother has received verbal threats since the applicant has been in Australia.
•Since coming to Australia, the applicant has been in a de facto relationship with an Australian citizen who is Muslim. She has had a child with him born on [date of birth deleted]. Her de facto is in Australia. She claims that she will be discriminated against because she has had a child with a man of Muslim faith, and she is Catholic. She has been suffering depression since the birth of her child.
•She fears threats to life and liberty, significant ill-treatment and significant economic hardship that threatens her capacity to subsist, denial of access to basic services that threaten her capacity to subsist and denial of capacity to earn a livelihood of any kind which would threaten her capacity to subsist in Venezuela.
Tribunal Hearing
At the hearing the applicant stated she has another child, and she is not living with her de-facto partner anymore. She said she is a [occupation deleted] and that she shares custody of the children with her ex de-facto partner. Her mother has since arrived in Australia and has also applied for a protection visa.
Both her children are Australian citizens.
She had her student visa cancelled in 2016 as she was suffering from depression and problems with her family, and she could not concentrate.
Business in Venezuela
The applicant’s father was an [occupation deleted] and had a business importing [products]. She became interested in business, and she entered a partnership in 2011. She was still studying so she did not work fulltime. She said during this time her partner started getting threats and she decided she needed to get more involved. Her partner left the country and went to Bogota.
She said she thought the threats were just against him not her as he had been in the business longer. She started getting calls and she would tell the people who called that her partner was travelling, this went on for about one year and then they started getting wise to her. She said these people were armed groups who operate in border areas and there is no government regulation or control over them. They deal drugs, traffic that sort of thing they were both Venezuelan and Columbian.
They started to ask her for money, and if she cooperated, they wouldn’t hurt her. They wanted monthly payments. They would call her and ask her to meet them and leave notes in her office saying come to these meetings. This was happening 2-3 times per week. She changed her phone number, but this kept going on. She moved to another city for 5 months at one point.
She said she made a complaint about them to the police but then one day she had to go through a check point, and she realised they were working with the government, and she was told she could be arrested. She said other business owners had been killed by these groups. One day some guys came into the office and showed her their weapons as a threat, and they wanted to discuss monthly payments.
She said she lived in constant fear ad she decided she had to get out. She stopped the business. She tried to handle it remotely, but it was too hard. She sold the stock and gave some money to her parents then left.
She said after she arrived in Australia, she received a phone call that her father had been shot and killed. He was close to home when it happened, and the police report stated that armed men who gunned him down, but they never found out who did it.
Primero Justicia
We discussed her political involvement with Primero Justicia and protests.[2] She said her family, including her [close relatives] were involved and identified with the party. When Chavez came to power there was a lot of protesting and the government started violently breaking up parties. She said when she went to the protests, they were attacked with tear gas and her friends were arrested. I asked what happened to her friends and she said she doesn’t have contact with people in Venezuela anymore and most of her friends have left.
[2] Justice First - Wikipedia
The applicant stated that she is sure that the situation has not changed in Venezuela and many people are crossing the desert to get out. She said she had a witness who was shot and has gone to the USA, but he is illegal and would not be able to get anything notarised.
Children and depression
We discussed the children of the applicant as she is catholic, and the father of her children is Muslim, and they are raising the children in the Muslim faith. She expressed some concern at her children having the Muslim faith and living in a predominately catholic Venezuela.
The applicant explained she suffered from post-partum depression especially with her first child. She also provided a letter from [a health provider] about her ongoing depression and management of her depression.
Country Information
Country information for Venezuela shows the country is in a deep economic and violent era. The smart traveller advice provides the following.[3]
[3] Venezuela Travel Advice & Safety | Smartraveller
- Common violent crime includes murder, armed robbery, drive-by shootings, sexual assault and carjackings. Criminals are often armed. Avoid walking in isolated areas, especially at night. Terrorist groups and criminal gangs are active along Venezuela's borders with Colombia, Brazil and Guyana.
- Kidnapping is a serious threat. The risk is higher along airport routes and in border regions. Only use official taxis organised through your hotel. Avoid kidnapping hotspots.
- Venezuela's political situation is volatile. Demonstrations and protests are common and can turn violent. If you're in an affected area, leave if it's safe to do so.
- Shortages of basic goods can result in long line-ups at stores. This can lead to fighting, looting and theft. Be ready to change travel plans. Keep extra supplies of food, water, medicines and other necessities.
Demonstrations and other civil unrest are common, often in major urban centres, such as:
The political situation is volatile. Since January 2019, unrest has increased, often becoming violent. Many people have been killed, injured or arrested. Disruptions to essential services occur. On-the-spot demonstrations and other ongoing unrest is likely. Violent incidents and military responses are possible. Roads and highways are often blocked during demonstrations, causing disruption in public transport systems. Days of national significance could motivate civil unrest. National strikes can be called at short notice, often causing disruptions to:
Shortages of basic items and long lines at grocery stores have led to:
Public protests and events that draw large groups of people can turn violent. If, despite our advice, you travel to Venezuela:
- Caracas
- Valencia
- Maracay
- Mérida
- San Cristóbal
- Maracaibo
- air travel
- public transport
- banking services
- government services
- fighting
- looting
- theft
- avoid all protests, political activity and large public gatherings
- leave affected areas as soon as it's safe
- monitor the media and other sources for news about possible unrest
- be particularly alert during days of national significance
- follow the instructions of local authorities
- keep spare supplies of food, water, medicines and other necessities
Border areas
Avoid border areas, as they can be dangerous due to the presence of terrorist groups. Some maritime borders are also closed until further notice, including those with:
In border areas, there's limits on the right to:
Terrorism is a threat in Venezuela. Terrorist groups are particularly active in the region within 80km of Venezuela's border with Colombia. This region includes parts of:
Colombian terrorist groups, such as the ELN (Ejército de Liberación Nacional), and criminal gangs are active along Venezuela's borders with:
Hostages, including foreigners, have died after being kidnapped in these areas. The Venezuelan military conducts searches and arrests in border regions, but threats remain. Troop movements and border closures can occur at short notice. Most pharmacies, including in hospitals, no longer stock basic medicine or supplies due to short supply.
Venezuela United States Department of State
- Aruba
- Curaçao
- Bonaire
- free movement
- assembly
- protest
- Bolívar
- Amazonas
- Apure
- Táchira
- Zulia
- Barinas
- Colombia
- Brazil
- Guyana
Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by regime forces; forced disappearances by the regime; torture and cruel, inhuman, and degrading treatment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention by security forces; political prisoners or detainees; serious problems with independence of the judiciary; unlawful interference with privacy; punishment of family members for offenses allegedly committed by an individual; serious restrictions on free expression and media, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government corruption; serious restrictions on or harassment of domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence; significant barriers to accessing reproductive health; trafficking in persons; crimes involving violence or threats of violence targeting indigenous persons and lesbian, gay, bisexual, transgender, queer, or intersex persons; and the worst forms of child labor. [4]
UNHCR
The outflow of Venezuelan refugees and migrants remains one of the largest displacement crises in the world. To date, over 6.1 million have left their homes, of which 5 million are in the Americas. There are 199,206 Venezuelans recognised as refugees worldwide and 971,170 pending asylum claims. Over 2.7 million regular stay permits have been granted to Venezuelans since 2014. In support to receiving States, UNHCR improves reception conditions, advocates for legal stay and inclusion, mitigate protection risks and boost access to basic services.[5]
Over 6.8 million refugees and migrant from Venezuela worldwide with 190,000 recognised refugees and 2.4 million living legally within the Americas. [6]
[4] Venezuela - United States Department of State
[5] UNHCR Venezuela Situation Fact Sheet June 2022 - Venezuela (Bolivarian Republic of) | ReliefWeb
[6] UNHCR - Venezuela situation
Findings
I accept the applicant’s claims about her mother and father, her father being shot and killed and her work and education in Venezuela. I accept that her father was a businessman in [product] importation and that she subsequently became involved in her own business.
Further, I accept that she was targeted for her business dealings and that the ‘collectivos’ or gangs that threaten and kill people in Venezuela wo don’t comply are actors of the state or at the very least state sanctioned.
Venezuelans call these irregular armed gangs colectivos or collectives, while the UN Human Rights Commission describes them as para-police, or paramilitary forces loyal to President Nicolas Maduro. [7]
They are well known for carrying out extrajudicial killings, kidnapping, running extortion networks and controlling lucrative food distribution networks in the community, as well as trafficking in petrol and drugs along the border with Colombia. [8]
[7] Venezuela: Who are the colectivos? | Nicolas Maduro | Al Jazeera
[8] Venezuela: Who are the colectivos? | Nicolas Maduro | Al Jazeera
I accept that the applicant supported the Primero Justicia party and that she attended protests against the government.

I consider that the applicant has an imputed political opinion in Venezuela with her refusal to pay the collectivos and attend their meetings. Further, I consider she has a political opinion for her support of the Primero Justicia party and her attendance at protest against the government.
Best interests of the Australian children
The Tribunal has given consideration to the applicant’s two Australian citizen children.
Article 3.1 of the United Nations Convention on the Rights of the Child, provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
If the applicant was to return to Venezuela, she would either be separated from her two children who would remain behind with their father, or they would go with her back to Venezuela. The applicant would be a single mother without any family support. Her children would be subjected to hardship UNICEF [9]reports that over 1 million children are not in school and the UN states malnutrition for children in Venezuela is a real problem. [10]
[9] Venezuela: UNICEF providing more than 300,000 children with education supplies to help keep them in school
[10] Venezuela has a growing crisis of malnourished kids : Goats and Soda : NPR
Having considered the best interests of the children, I have concluded that their best interest is to keep their mother in Australia and with her children.
I consider that the country information supports the applicant’s contention that she faces harm arising from her imputed political opinion. The information demonstrates that anyone who goes against the government in any way is at particular risk.
The applicant experienced harm in the past, when she was forced out of her business, her father was murdered, and she had no option but to leave the country along with millions of other citizens of Venezuela. I note that the assessment of protection is a forward-looking assessment, what would happen to the applicant upon return to Venezuela. Past experience can be a guide as to what could occur in the future, but it is only one aspect of the consideration.
I consider that the country information demonstrates that the situation for anyone who goes against the government in Venezuela is becoming more and more difficult, as the government introduces restrictions, further controls the streets and everyday life, and the violence becomes more intense. Having any political opinion in opposition to the government and not complying with their regime places these individuals in harm’s way. The chance of being harmed can be described as real, and the harm that would be experienced would be serious.
I consider that the subjective fear that the applicant has for her future is made out on the available country information. I consider the violence the applicant faces constitutes serious harm. Based on the evidence before me, the applicant has a real chance of serious harm from her political and imputed political opinion.
I find the applicant has a real chance of serious harm on return to Venezuela for her imputed and political opinion and she has a well-founded fear of persecution for this reason.
I have considered whether the applicant can avail herself to state protection. I note it is the state actors causing the harm in this instance. Given this, I do not consider she can avail herself to state authorities for protection.
With respect to the consideration of relocation, as the state is the responsible actor for this harm, the applicant cannot relocate within Venezuela where she could avoid the harm, she fears in her home area.
decision
For the reasons above I am satisfied that the applicant is a person to whom Australia has a protection obligation. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
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 s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
…

[2022] AATA 4930

26 October 2022

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