1902044 (Refugee)

1902044 (Refugee) [2022] AATA 4754 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Marta MAMAROT (MARN: 1383899)
CASE NUMBER: 1902044

COUNTRY OF REFERENCE: Venezuela
MEMBER:Luke Hardy
DATE:17 November 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 17 November 2022 at 11:42am
CATCHWORDS
REFUGEE – protection visa – Venezuela – particular social group – returnees to Venezuela – political opinion – opposition to the government – impact of the COVID19 pandemic – mandatory quarantine centres for returnees – access to medical care and food – criminalising returnees – arbitrary detention and ill-treatment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
SZDTM v MIAC [2008] FCA 1258
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are all citizens of Venezuela. They applied for the visas on 12 April 2017. The delegate refused to grant the visas on 18 January 2019.
The applicants appeared before the Tribunal on 8 November 2022 to give evidence and present arguments. The Tribunal mainly took evidence from the husband/father, [named].
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish-English medium.
The applicants were represented in relation to the review.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 issues
The key issue in this case is whether, on accepted evidence, any of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims
[The applicant] and his family are from Caracas. [The applicant] had a business in Venezuela, [business specified].
[The applicant’s] claims relate to past extortion attempts and to two occasions when he was kidnapped, the second time along with his wife. He claims he signed petitions against the Chavez government (the late Hugo Chavez having been succeeded by Nicolás Maduro). He also claims he was threatened with harm to his wife by a named military officer who is now quite a notorious senior figure in the Maduro government.
[The applicant] claims that his socio-economic status and support for the government’s opposition are essential and significant factors in the harm he and his family members have suffered.
The delegate found [the applicant’s] oral testimony consistent in many details with evidence he had originally provided in writing. Hearing [the applicant’s] testimony, the delegate had no concerns about his having returned to Venezuela for 23 months in 2014 before coming to Australia again; neither do I. Also, in the course of testing [the applicant’s] evidence about his and his family’s past treatment, including the kidnapping episodes and the arrangements made for the victims to pay ransoms, I came to the conclusion that it was comprehensively authentic.
[The applicant] provided the Tribunal with updated information abut a son who remained in Venezuela after the family left. That son was kidnapped in a manner consistent with widely-reported practice in that country. He has since left the country and resides temporarily in Colombia.
I do not consider it necessary, however, to go into detail about the evidence regarding the applicants’ past experiences in Venezuela. This is because significant subsequent events appear to have more relevance.
Venezuela saw massive emigration after Nicolás Maduro came to power. However, with the outbreak of the Covid-19 pandemic I early 2020, Venezuelan exiles, particularly in neighbouring countries, began to lose their jobs and faced having to return home. Whereas Maduro said in June 2020 that his government “will continue to receive all the Venezuelans who return with love” authorities in Venezuela were reported as early as July 2020 be stigmatising returnees, accusing them of being “biological weapons” bringing the Covid-19 virus into Venezuela to “kill their families.” [1]
[1] “How Maduro Is Using COVID-19 to Silence His Opponents Even Further,” Americas Quarterly, 21 July 2020,
Human Rights Watch (HRW)[2] subsequently conducted research in Venezuela:
[2] “Venezuela: Abusive Treatment of Returnees: Poor Quarantine Conditions May Spread Covid-19,” Human Rights Watch, 13 October 2020,
Venezuelan authorities’ treatment of approximately 130,000 citizens returning from other countries in many cases is abusive and is likely to amplify transmission of Covid-19, Human Rights Watch and the Johns Hopkins University’s Centers for Public Health and Human Rights and for Humanitarian Health said today…
Tens of thousands of Venezuelans, most of whom were living in other Latin American countries, are returning to Venezuela because of the Covid-19 pandemic and its economic impact. Human Rights Watch and the Johns Hopkins centers found overcrowded and unsanitary quarantine centers for the people returning, with little access to food, water, or medical care. Some who protested the conditions were threatened with arrest. And due to Covid-19 testing delays and an unnecessarily elaborate testing protocol, many people have been quarantined for weeks longer than the 14 days the World Health Organization (WHO) recommends.
“Sending returnees to overcrowded and unsanitary quarantine centers, where social distancing is impossible, is a recipe for spreading Covid-19,” said Dr. Kathleen Page, a physician and faculty member of the Johns Hopkins University School of Medicine and the Johns Hopkins centers. “Requiring them to stay there longer than the standard 14 days only increases the risk they will become infected, serving no reasonable public health purpose.”
Since 2014, more than 5 million Venezuelans have left their country, fleeing a continuing human rights, humanitarian, political, and economic crisis. But Covid-19-related lockdowns in other Latin American countries left many Venezuelans who had been working in informal economies unable to afford food and rent. Since the pandemic began, approximately 130,000 Venezuelans have made an often-arduous journey home, according to Venezuelan officials and aid agencies’ estimates…
On June 11, Nicolás Maduro said that his government “will continue to receive all the Venezuelans who return with love.” Yet the government has repeatedly stigmatized returnees, accusing them of bringing the virus to Venezuela.
From June through September, Human Rights Watch interviewed 76 people, including 23 returnees, 10 women and 13 men, from Colombia, Brazil, Peru, Ecuador, and the United States, as well as journalists, aid workers, representatives of nongovernmental organizations, and residents of areas where returnees are arriving. Human Rights Watch analyzed information provided by international and Venezuelan groups, video statements by government officials, and protocols issued by the Venezuelan Health Ministry. A Johns Hopkins centers researcher participated in some interviews and reviewed Health Ministry documents.
As of October 12, Venezuela had confirmed 83,137 cases and 697 deaths due to Covid-19. The real number is most likely much higher.
People entering Venezuela are required to stay at quarantine centers known as Puntos de Atención Social Integral, or PASI. Returnees interviewed stayed in a total of 26 centers. Nineteen were primary reception centers in the border states of Táchira, Apure, and Bolívar. The rest were in the Capital District (city of Caracas) and the states of Aragua, Falcón, Guárico, Vargas, and Zulia.
While conditions in the centers vary, most returnees interviewed described them as severely overcrowded, with many people sharing a single room. Many also described unsanitary conditions, including a lack of water and electricity to run water pumps and of basic supplies needed for hygiene, such as soap. They said they had serious difficulties getting medical care and food, including formula and clean water for infants…
The conditions described by returnees in some centers fall far short of meeting their basic needs, and in some cases may be severe enough to amount to degrading treatment forbidden under the International Covenant on Civil and Political Rights, among other instruments.
The conditions described by returnees are likely to contribute to the spread of the virus, Human Rights Watch and the John Hopkins centers said. The overcrowding makes social distancing impossible and increases the risk of coronavirus transmission. In some instances, people who entered the centers at different times or were at various stages of testing were not isolated from each other. At hotels used as PASI centers, quarantined people sometimes shared common spaces with hotel guests who did not wear facemasks.
Requiring people to stay beyond 14 days solely to await test results is unnecessary from a public health standpoint and inconsistent with WHO guidelines, and it effectively results in arbitrary detentions.
Aid workers reported better conditions in some PASI centers than others. No official common standard applies to all centers. State officials or security forces, including the Bolivarian National Guard, operate the centers, and conditions, along with access for aid workers, vary greatly, largely depending on who is in charge.
Local and international humanitarian organizations are assisting returnees and trying to improve conditions in PASI centers with funding from international cooperation, and representatives from some of these groups told Human Rights Watch that their access has improved in recent weeks. However, their capacity and reach across all the PASI centers is limited, so many returnees in PASI centers will not receive services adequate to meet their basic needs, Human Rights Watch said.
On July 10, Human Rights Watch requested information from Venezuelan authorities on policies addressing official hostility toward, and poor conditions for, returnees. They have not responded…
Most of the returnees said they spent more time in PASI centers than the required 14 days, with most spending well over 20 days, the majority of them awaiting test results. Two returnees said they were required to remain for more than 70 days, in separate PASI centers in Apure state. In one of these cases, a family of 2 adults and 2 children arrived at a center and were tested multiple times as a group. Because they did not receive the test results for their 2 children, they were all required to remain in the center for a total of 75 days…
Venezuela’s PASI centers have held tens of thousands of people. As of September 1, there were 271 centers nationwide, including approximately 140 in border areas, with total capacity of 14,000. Conditions vary greatly, but in many centers, they are dismal.
Centers are improvised, including in schools, hotels, public sports facilities, and bus terminals. Many are overcrowded, ill-equipped, and inappropriate for holding hundreds of people for weeks at a time, returnees and others said. Several reported being held in common rooms with other people. One aid worker said that at one point, about 700 people had been held in a center in Zulia state that had capacity of 200.
In some instances, returnees said, new arrivals were not isolated from people already there, but instead crammed into rooms with earlier arrivals. Many reported sleeping on the floor. One reported sleeping outdoors because there were no rooms left indoors…
Some returnees have experienced harassment and discrimination by military and civilian personnel managing the quarantine centers, those interviewed said. Returnees said they felt they were being punished for having left the country.
In some instances, returnees said, security forces and armed pro-government groups called colectivos threatened and harassed returnees in quarantine centers. In one case, hours after a group of returnees organized a protest against conditions at a center in a hotel in Caracas, the capital, a group of armed men with ski masks entered the building, two returnees reported. The armed men warned that protests “would not be tolerated” and that another demonstration would elicit “forceful measures.”
Military personnel and other staff in centers in Apure and Táchira states threatened to bring in “guerrilla” forces if returnees did not do as they were told, returnees said. One described armed men, whom he called “guerrilla” members, breaking up a protest outside a center in Guasdualito. The armed men told returnees that if they continued protesting, they would have to “face the consequences.” One armed man threatened to take all the men from the center to a place that “they would enjoy much less,” the returnee said.
One media report said that after a group of returnees protested conditions inside a center in Apure in late June, members of the Bolivarian National Guard detained a man, apparently without any formal charge or judicial order, and took him to the city of San Cristóbal to be tried in a military court.
Members of the Bolivarian National Guard threatened a group of returnees in a different center in Apure with jail time and loss of their “right[s] as Venezuelans” if they fled the center, a returnee said.
A top government official in Táchira state said people protesting at PASI centers could face jail time, a newspaper reported. The official warned that they “could go from a social quarantine to a penal one.” …
Efforts to update information regarding the situation for returnees to Venezuela have yielded little. The Tribunal has not been able to locate any information about whether or not there have been or currently are exemptions in regard to quarantine for returnees to Venezuela who have been vaccinated against COVID-19 whilst abroad. HRW released a more recent report[3] in which it referred to some of the points of its October 2020 report and did not specify whether there had been any improvement in treatment of returnees. In particular, it is not known whether or not returnees to Venezuela are still being detained beyond 14 days as reported in October 2020 by Human Rights Watch. For want of verified positive information, it must be considered a possibility that returnees to Venezuela are still being detained beyond the 14-day health protocol, potentially at length or indefinitely.
[3] “Putting Venezuela’s Crisis on the International Agenda,” Human Rights Watch, 8 July 2021,
The treatment of returnees to Venezuela may arguably appear on the face of things to be caused by general logistics or a lack of resources, as suggested by reports of returnees being forced to remain in quarantine for weeks beyond the World Health Organisation’s recommended 14 days, purportedly due to delays in delivering their Covid-19 test results.[4] However, the HRW report from October 2020 indicates harassment and discrimination by military and civilian personnel managing the quarantine centres including treatment that “effectively results in arbitrary detentions.” It is therefore hard to rule out that returnees to Venezuela are being singled out for discrimination including prolonged detention.
[4] Ibid.
The deliberate stigmatising and even intentional punishing of returnees to Venezuela has also been observed by the Organisation of American States (OAS) which reported in September 2020[5] that, in spite of Maduro’s June 2020 rhetoric, his regime was in fact “criminalizing” returnees:
[5] Situation of Venezuelans Who Have Returned and Are Trying to Return to Their Country in the Context of Covid-19, OAS, September 2020, see also “Returning Venezuelans subjected to 'inhuman' treatment, report says,” Devex International Development, 10 September 2020,
Venezuelan people who have sought to return to their country of origin, have been catalogued as “biological weapons” by diverse public officials, among them the Secretary of Government of the Zulia State, Lisandro Cabello, who also established that those who return to Venezuela must spend the quarantine inside cells, providing them with treatment equivalent to that of
persons deprived of liberty with the fundamental difference that those who return to Venezuela
do so in exercise of their legitimate and full right to return to their native country, which in no
way represents the commission of any crime. For his part, Freddy Bernal, political leader in
Táchira, appointed by the illegitimate regime, established that the houses would be marked
to indicate those who allegedly crossed the “controls” provided. These pronouncements
threaten the right to life, privacy and domicile of Venezuelans, instead of providing them with
the protection that the laws guarantee. The IACHR has categorically rejected the accusations
and actions of the illegitimate government of Nicolas Maduro towards the returnees, since
the use of such language increases their conditions of vulnerability and poses a series of
obstacles to the full exercise of their rights.

A September 2020 International Commission of Jurists report on COVID-19 responses globally, reported of Venezuelans returning from Colombia, citing May and July 2020 reports:
Once they cross the border, the situation for such persons is typically not any better. Venezuelan returnees, who used regular border checkpoints, are placed in quarantine in overcrowded facilities, without “sufficient food or permanent access to drinking water”. In addition, returnees have faced stigmatization by Venezuelan authorities, who have called them “irresponsible”, “fascists,” “camouflaged coup-plotters” and “biological weapons”.[6]
[6] ‘'Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses',
In September 2020 Amnesty International reported on mandatory COVID-19 quarantines in the Americas, stating in summary:
... in the first months of the COVID-19 pandemic, countries in the Americas - specifically Venezuela, El Salvador, and Paraguay - have placed tens of thousands of people in state-run quarantine centres in insanitary conditions, sometimes without adequate food, water and medical care. They have also repeatedly extended their quarantine or isolation periods without clear communication of the scientific reasons for doing so. In Venezuela, authorities have also placed tens of thousands of Venezuelans forced to return home in totally inadequate quarantine settings, possibly amounting to ill-treatment. Additionally, a state-sponsored campaign of stigma and discrimination towards those who return appears to have converted a public health intervention into what may amount to arbitrary detention.[7]
[7] “When Protection Becomes Repression: Mandatory quarantines under COVID-19 in the Americas,” Amnesty International, [21 September] 2020 [document created 19/09/2020],
Amnesty International’s (unreferenced) April 2021 State of the World's Human Rights report stated:
... Venezuelans returning to the country were placed in mandatory quarantine in state-run centres from at least April onwards. By August [2020], 90,000 people were officially reported to have passed through the centres known as Comprehensive Social Service Points.40 The authorities restricted entry to Venezuela during the [2020] COVID-19 pandemic to a maximum of 100- 300 people per day, limiting the entry and departure of Venezuelan nationals; many of those seeking to return had been excluded from care measures during the pandemic in host countries. People who sought to enter Venezuela through informal channels were criminalized and stigmatized.
Mandatory quarantine in state custody was one example of the repressive response to COVID-19. Officially, 90,000 people were reported to have passed through the state- run centres known as Comprehensive Social Service Points (PASI) by August [2020] in order to comply with the mandatory quarantine on their return to Venezuela. However, the centres adopted arbitrary and militarized procedures that resulted in punitive and repressive measures and failed to prioritize health care and infection prevention. The conditions in the PASI were precarious and, in many cases, ignored WHO protocols. For example, lack of clean water, adequate food and access to medical care were reported. The length of time for which people were held was in many cases arbitrary and not based on objective criteria. This, combined with inadequate conditions in state-run quarantine centres, may have constituted ill- treatment and arbitrary detention.
... People returning to the country were held in state-run quarantine centres in conditions and for lengths of time that may have constituted arbitrary detention and ill-treatment.[8]
[8] “Amnesty International Report 2020/21: The State of the World's Human Rights,” Amnesty International, 6 April 2021,
It appears to me that the treatment of returnees in Venezuela is discriminatory. Such discrimination may not necessarily amount to persecution if the treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned].”[9] However, in the case of “returnees to Venezuela,” their having been allowed by the Maduro regime to be labelled “bioterrorists” is strongly indicative of a deliberate intention to punish and harm them through lengthy detention in unsanitary and potentially life-threatening conditions.
[9] Applicant A v MIEA (1997) 190 CLR 225, at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45]. In Applicant S v MIMA (2004) 217 CLR 387, Gleeson CJ, with Gummow and Kirby JJ held that as a matter of law to be applied in Australia, these criteria are to be taken as settled. See also discussion and general summary of cases in SZDTM v MIAC [2008] FCA 1258 at [62]
The OAS presented the Maduro government with a list of recommendations in the interest of remedying the situation for returning Venezuelans:
…in accordance with Articles 19, 21, 25, 29, and 30 of the Constitution of the Bolivarian Republic of Venezuela, the Universal Declaration of Human Rights, the Inter-American Convention on Human Rights, and IACHR Resolution 01/2020, it is requested:
1) That discrimination, stigmatization, and criminalization of returned Venezuelans cease, guaranteeing their free entry into Venezuelan territory and their free movement within the national territory;
2) That all administrative acts that have been issued in violation of the Constitution, international treaties and the human rights guaranteed therein be declared null and void;
3) That all public officials who have ordered and executed such acts be subject to investigation for crimes against humanity;
4) That the victims of these human rights violations be compensated, and policies of inclusion be established to reverse the damage caused by the criminal acts of the Nicolás Maduro regime;
5) That the international community help make visible the situation in which stranded Venezuelans find themselves and condemn the unconstitutional and illegal response of the illegitimate regime of Nicolás Maduro;
6) That the international community unite to help explore different humanitarian avenues for the protection of Venezuelans who are trying to exercise their right to return to their country.[10]
[10] Situation of Venezuelans Who Have Returned and Are Trying to Return to Their Country in the Context of Covid-19, OAS, September 2020, >
However, there is no evidence to date of the Maduro government having even acknowledged the OAS’s suggestions, let alone of having begun to consider them.
On the evidence before me, it cannot reasonably be concluded that this situation will not continue in Venezuela well into the reasonably foreseeable future.
I note that asylum seekers in Australia are entitled to receive Covid-19 vaccinations subject to roll-out protocols and vaccine availability. It would be hard to imagine that Australia would remove the applicants without letting them be vaccinated here. On this basis, I consider it likely that they would all be vaccinated before they were removed to Venezuela. The problem then, however, is that there is no evidence before me to suggest that Venezuela has or will have any practices in place to make an exception for returnees who can show evidence of having been vaccinated abroad This casts more doubt on the treatment of returnees to Venezuela being purely motivated by public health concerns and subject purely to logistical and resource limitations.
The Venezuelan government evidently continues to be highly defensive and obdurate in the face of foreign advice, expertise and criticism. On the evidence of the OAS and HRW reports, I find it very hard to be satisfied that the applicants will be able to avoid being “quarantined” beyond the WHO-recommended period in unsanitary and degrading conditions, at the leisure of the Venezuelan authorities.
Having considered all of the evidence before me in its entirety, I am satisfied that the applicants face a real chance of being persecuted in Venezuela in the reasonably foreseeable future for reasons of their “membership of a particular social group” namely “returnees to Venezuela.”
For the reasons given above, I am satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
In the alternative, I would also be satisfied on the evidence before me that I had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Venezuela, there is a real risk that all five applicants would suffer significant harm in the form of “cruel and degrading treatment” and possibly even arbitrary deprivation of life.” (s.5(1) of the Act refers.)
S.36(3)
Notwithstanding that there is a member of the family who has sought temporary refuge in Colombia, Venezuela has evidently closed or limited cross-border travel by its citizens. I am satisfied that there are no possible steps the applicants could take in this case to avail themselves of the protection of a third country. I find that they are not caught by s.36(3) of the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Luke Hardy
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.
…

International Commission of Jurists, September 2020, pp.46-47 footnoted ‘262 Inter-American Commission on
Human Rights, IACHR Calls on States to Protect the Rights of Venezuelans Who Return to their Country During
the COVID-19 Pandemic (16 May 2020),

[2022] AATA 4754

17 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction