1903014 (Refugee)

1903014 (Refugee) [2022] AATA 1314 (14 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903014
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nathan Goetz
DATE:14 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 March 2022 at 4:59pm
CATCHWORDS
REFUGEE – Protection visa – Iran – applicant failed to attend the hearing – a person who has been identified as a person of interest by the Iranian security services – claimed work with [Employer 1] – demolition of family property in Iran – inability to question her about the veracity of claims – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by registered migration [agent].
BACKGROUND
The applicant identifies as [age] year-old female citizen of Iran. On [date] January 2012 the applicant arrived in Australia holding a student visa that was granted on 20 November 2011. That visa was valid until 25 February 2013. On 25 February 2013 the applicant was granted another student visa that was valid until 15 March 2014.
On [date] June 2013 the applicant departed Australia and returned on [date] July 2013.
On 10 April 2014 the applicant was granted another student visa. That visa was valid until 15 March 2015. On 11 March 2015 the applicant applied for another student visa. On 1 June 2015 this was refused by a delegate, and the applicant applied to the Tribunal for review of the decision to refuse to grant her the student visa. The Tribunal remitted the matter with a direction to the department that she satisfied the relevant criteria in AAT case 1508319. On 22 October 2015 the applicant was granted the student visa. That visa was valid until 13 May 2016.
On [date] March 2016 the applicant departed Australia and returned on [date] April 2016.
On 17 May 2016 the applicant was granted another student visa. That visa was valid until 17 May 2017.
On [date] December 2016 the applicant departed Australia and returned on [date] December 2016.
On 5 May 2017 the applicant applied for the protection visa that is the subject of this review application. On 24 January 2019 the applicant was interviewed by the delegate. On 1 February 2019 the delegate refused to grant the applicant the protection visa on the basis that did not satisfy ss 36(2)(a), (aa), (b), or (c) of the Act.
On 11 February 2019 the applicant applied to the Tribunal for review of the decision to refuse to grant her the protection visa. On 23 February 2022 the Tribunal wrote to the applicant and advised her that the review application would shortly be constituted to a Member for hearing and requested that she complete and return a ‘Pre-hearing information form’ within 7 days. The applicant’s migration agent responded that he spoke to the applicant that afternoon and that the applicant intended to continue to utilise the migration agent. The agent advised that the applicant would be attending on the agent on 7 March 2022 to prepare submissions and that the submission would be sent to the Tribunal as soon as possible. On 1 March 2022 the Tribunal wrote to the applicant under s 424(1) of the Act and invited her to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal had considered the material it had and was unable to make a decision favourable to the applicant. The Tribunal hearing date was set to commence at 10:00am on 22 March 2022 via Microsoft Teams, and the applicant was advised to provide submissions by 15 March 2022.
On 5 March 2022 the applicant sent the Tribunal a number of documents, including a written statement where she indicated her apologies for ‘not being able to attend the hearing by telephone due to my declining mental health. I honestly can’t see myself having to recall and answer probing questions about the events that compelled me to apply for a protection visa and the events that have taken place since then. I cannot endure the emotional torment that this will cause me.’
The applicant advised the Tribunal that she would not attend the Tribunal hearing. In those circumstances, the applicant has consented to the Tribunal making a decision on the review application without the applicant appearing at a Tribunal hearing: s 425(2)(b). Accordingly, the Tribunal hearing was cancelled. The Tribunal made a decision on the information it had.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
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
Personal particulars
In the protection visa application form, the applicant identifies that she was born in Tehran, Iran, she is a citizen of Iran, holds no other citizenship, and that she holds no right to enter and reside in any other country. She can speak, read and write in Persian and English. She indicated that she was a Shia Muslim and has never married or been in a de facto relationship. The applicant listed a father, mother, [siblings] who live in Iran. Her last arrival in Australia was [date] December 2016 from Imam Khomeini Airport, Iran. She departed Iran lawfully on an Iran passport issued [in] 2013, expiring [in] 2018. She detailed that she arrived in Australia as a student and that she had one student visa application refused and remitted by the Tribunal for reconsideration. She acknowledged that she had been to Australia previously, and that she returned to Iran in May 2013, May 2016, and December 2016 to visit family. She disclosed travel in March 2011 to [Country 1]. From June 1985 until January 2012, she identified that she lived at one address in Tehran, Iran.
Protection claims in the protection visa application form
The protection visa application form also asked the applicant her reasons for claiming protection. In response to all questions, she directed the reader to the applicant’s written claims. The written claims were contained in a four-page document.
The applicant wrote that she is a practising Muslim who wears a headscarf. She strongly opposes the claim made by the Iranian Government that it practises ‘true Islam’ and that the ‘denials of social, political and religious freedoms in Iran are based on Islamic teachings and principles.’ She contrasted this with her own beliefs about Islam. She noted that since February 2015 the applicant started teaching Islamic theology and philosophy at [a school].
The applicant wrote that her ‘fear of harm in Iran arises from two separate issues that later became combines and intensified [her] fear of returning to [her] home country of [Iran].’
She explained the ‘background to her problems’ as follows:
The applicant worked for [Employer 1] in 2015 for approximately 12 months. Her work initially was that of providing interpreting services. Later, she assisted [details deleted]. She claimed that her assistance ‘went beyond just facilitating communication as an interpreter.’ She noted her workdays, which she identified as voluntary work and had been approved given the applicant had completed a [degree] in 2014, where she had studied [a specified subject] as one subject.
The applicant wrote that she became ‘more skilled [at work].’ The applicant claimed to still have copies of [work] saved on her personal computer.
In December 2016 the applicant went to Iran for three weeks to visit her family. She identified this as a third visit to Iran since her initial arrival in Australia. During her first week in Iran, she met an Iranian man whom she came to know through an old friend whom she named. She received a visit in the family home from this prospective marriage suitor who told her that he owns [a] company. The suitor was accompanied by members of his family. The applicant said she needed to see and interact with the suitor before making a decision. She claimed that the suitor’s family were strict Muslims who told the applicant she and the suitor needed to have Muslim marital vows and then see each other. The applicant claimed that she did not categorically reject the proposition and detailed her reasons for this.
The applicant wrote that the suitor and his family disagreed and said that there would not be any communication unless and until religious marriage vows were officialised by a Muslim Shiite cleric. The applicant said that she needed to return to Australia and would provide an answer once she returned to Iran for good in May 2017. In April 2017 the applicant started preparing for her return to Iran, however in the last week of April 2017 her brother sent an email to the applicant advising her that threatening phone calls had been made to her mother and brothers in Iran.
She wrote that these phone calls were made pursuant to the issues she faced on her last trip to Iran. She claimed that she faced questioning in her last entry to and exit from Iran by Iranian security authorities regarding the length of stay in Australia and her activities in this country. She was ‘forced to open [her] [social media] account on her mobile phone and the authorities checked its contents’ and she was ‘asked questions about some of the contents in [her] [social media] written by political dissident activists’ whom she named. She responded that those articles had been sent to her without her consent. She claimed that no mention was made for her former association with [Employer 1] during the two times she was questioned and noted that her passport was taken when she entered Iran and returned to her once she signed an undertaking at the time, she exited Iran. She claimed that in the three weeks she spent in Iran, the security officer who took the passport called her home number twice and asked her to give him the originals of various identity documents. When the applicant exited Iran, she was required to complete a form by the security officer which asked questions about things such as her Australian residential address history, the name of the Mosque she attended in Australia, and the names of her friends in Iran and in Australia. She claimed that she did not write her correct mobile number, and that she did not remember the name of the Mosque she attended in Australia. She provided the name of only two friends but provided correct information about her address and phone number in Iran. She identified the undertaking as a promise that she would return to Iran at the end of her studies in May 2017 and that she would not be reading or acting in any way against the Iranian Government. The security officer warned the applicant that she was being watched wherever she went.
The applicant wrote that she received an email from her brother on 30 April 2017 alerting her to ‘new issues and new dangers’ that emerged after her last exit from Iran. She claimed there was a threat of acid being sprayed on her face and ‘a lot of other very scary things that made [her] feel the need to apply for protection in Australia.’ She wrote that she ‘also had reasons to believe that the security officer who questioned her had become aware of her association with [Employer 1]. She noted the types of applicants she assisted. The applicant was ‘certain this incriminating information against [her] must have been given to the authorities since her last exist from Iran.’ The applicant wrote that in a subsequent email from her brother, she was advised that her suitor had made announced visits to the family home where the security officer disclosed information that made the applicant ‘certain of her claims’ and that the suitor reiterated ‘his intention to marry the applicant and use the existence of incriminating information against [her] as a bargaining chip to force his agenda.’
The applicant suspected that ‘Iranian retuned asylum seekers must have either voluntarily or under duress have given out [her] name and identifying information to the security authorities under interrogations.’ She also claimed to ‘face the real and potential danger to [her] life, freedom and safety because of the sensitive and highly confidential work that [she] has done for whom [she] feels no love,’ which she identified as ‘a man who is closely connected to a political system to which [she] strongly oppose.’ She claimed that ‘if [she] was forced to return to Iran, she fears being arrested, interrogated, detained, charged with commission of crimes against the State of Iran’s national security or espionage.’ She fears being sexually violated and assaulted if she was detained in Iran. She noted that the security officer had ‘made it clear to [her] that Iran has no tolerance for Iranians who lend their support to any opposition movement outside Iran.’ She speculated that the ‘only thing that motivated the applicant to let [her] go [was] that all of her [social media] photos [were] taken with her headscarf on.’ She also wrote that she ‘very much’ reject[s] the legitimacy of the Iranian undemocratic and deceitful regime. [She] thinks that Iran is under military occupation and run by a system of religious dictatorship headed by Khamenei. [The] Iranian regime has never represented or defended the true interests of Iranian people.’ She fears serious harm at the hands of the Iranian security authorities and judiciary because of her ‘dissident political views’ which ‘will be overshadowed by [her] religious belief as [she] condemns the version of Islam practised and promoted by the Iranian regime.’ Her return to Iran will ‘put an end to [her] social, religious, political and personal identity.’
The protection visa application form asked the applicant to list any documents she was providing with the protection visa application. The only document the applicant attached was her Iranian passport. Prior to the delegate interview on 24 January 2019, the applicant provided the delegate with seven Microsoft Word documents that were purportedly certificated translations of:
·     A letter from a person who identified themselves as managing director of a company offering the applicant employment dated 21 April 2017, and another letter from this managing director again offering the applicant employment, undated
·     A letter from a person (unidentified but apparently the applicant’s suitor), undated
·     A letter from a person (unidentified but apparently from the applicant to the managing director) refusing the offer of employment, undated
·     A letter from a person (unidentified but apparently from a family member) to the applicant concerning the applicant’s suitor contacting the family, undated
·     Two letters from who identified themselves as [Mr A], the applicant’s brother, concerning the applicant’s suitor contacting the family, undated
·     A letter from the applicant to her brother [Mr A] concerning her planned return to Iran, undated.
On 29 January 2019, subsequent to the delegate interview, the applicant provided photos of what appeared to be:
·     An email in Persian dated 19 July 2017 (accompanying the previously submitted translation of a letter from [Mr A])
·     An email in Persian dated 29 April 2017 and accompanying translated document indicating that it was from the applicant indicating to her brother [Mr A] that she had been offered a job in Iran
·     An email in Persian dated 31 May 2017 accompanying the earlier submitted translated document from the applicant to the employer in Iran refusing the offer of employment,
·     An email in Persian dated 30 April 2017 (accompanying the previously submitted translation of a letter from the person who appears to be the applicant’s suitor,
·     An email in Persian dated 19 July 2017 accompanied by the previously submitted translated letter from the applicant’s brother [Mr A],
·     A copy of the applicant’s flight booking for [May] 2017 issued on 27 April 2017
·     An email in Persian dated 29 April 2017 accompanied by the previously submitted translated letter from the person who was identified as the managing director of a company offering the applicant employment,
·     An email chain from [an organisation] with no information in the body of the email, with the applicant on 25 May 2017 responding with her available dates for interpreting at the service, and an email on 7 August 2017 from an employee of [Employer 1] inquiring whether the applicant would be available for interpreting on a particular date.
·     A copy of a handwritten letter accompanying the previously submitted translated document of the letter from the applicant’s suitor.
·     A copy of a document in Persian accompanied by the translated document of the letter from the managing director offering the applicant employment.
·     A real estate form signed by the applicant breaking her lease and vacating a property in Australia dated 28 April 2017.

An email between the applicant and the migration agent was also submitted where the applicant wrote on 4 September 2017 that she moved to a new residential address because she received a threatening letter from her suitor.
Review application to Tribunal
The applicant provided the Tribunal with several documents on 5 March 2022, including:
·     A letter dated 1 March 2022 from [a named doctor] who wrote that the applicant has been under the author’s care since August 2020 and that the applicant became very anxious and depressed due to her refugee visa being refused. The applicant’s father died suddenly in May 2021 which left her very distressed. The letter asked the applicant to be excused from attending interviews in connection with the refugee visa.
·     A translation document of a document in Persian that appears to be a death certificate issued in respect of a person who the applicant identifies as her father.
·     A translation document of a document in Persian that appears to relate to a complain the applicant’s father made against a local mayor in Iran.
·     A translation document of a document in Persian that appears to be a judgment of a court in Iran that appears to be a restraining order stopping the Municipality of Tehran from demolishing property.
·     A translation document of a document in Persian that appears to be a medical report that suggests that the applicant had been a patient of that author who is in Iran and noted her psychological conditions.
·     A translation document of a document in Persian that appears to be an examination report of the applicant’s father noting injuries.
·     A written statement from the applicant where explained her reasons why she would not appear at the Tribunal hearing, as discussed previously. The applicant also wrote that her father was severely assaulted by the authorities in Iran and died. The applicant wrote that her brother advised her that her suitor was the person responsible for the demolition of property, and her statement suggested that her father’s death was not accidental. She wrote that a week after the demolition, her suitor came to the family home and said words to the effect that he was responsible and that any complaints made would not be resolved in the family’s favour. The applicant was also advised by her brother that the sister of the applicant’s former boyfriend of two years (whom she named) had ‘found and given news’ of her unlawful relationship with his former boyfriend to her suitor, and that the suitor had mentioned that a sentence for an illegal relationship in Iran is stoning to death. She noted that her former boyfriend’s sister was offered as a person to assist with issues in Iran.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee,’ or a person who meets the requirements for ‘complementary protection,’ or a member of the same family unit of such a person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
What is the country of reference?
The Tribunal is satisfied that the country of reference for the purpose of the protection visa application assessment is Iran. The Tribunal comes to this conclusion because the applicant provided a copy of her Iranian passport when she applied for the protection visa and there is no evidence that she holds citizenship of any other country or has a right to enter and reside in a third country.
Is the Tribunal able to give any weight to the applicant’s claims?
Just because the applicant has made protection claims does not mean that those claims are true.
The Tribunal is not able to give any weight to the applicant’s claims in the absence of speaking to the applicant at a Tribunal hearing and making relevant assessments about her as a witness. It was for this reason that the Tribunal wrote to the applicant and invited her to appear at a Tribunal hearing. It would be obvious to the applicant that in the absence of the Tribunal speaking to her, the Tribunal would not be in a position to make a decision favourable to her because if the Tribunal was able to do so, there would be no need for her to appear at a Tribunal hearing. Broadly speaking, the requirement to invite an applicant to appear at a Tribunal hearing only arises if the Tribunal is unable to make a decision favourable to the applicant on the material it has.
The applicant provided no copies of the claimed [social media] posts that she had on her [social media] account. Given this was something that the authorities in Iran had apparently looked at in her claimed interviews during her recent travel to Iran, it is reasonable to expect that the applicant would have included those in her protection visa application. The Tribunal is not satisfied that any such posts were made on the applicant’s [social media] account or that she ever had a [social media] account with posts critical of the Iranian Government, or any posts that could be considered in opposition to the current economic, political, religious or social order in Iran.
The applicant did not provide the emails (and letter from the suitor) in Persian and their accompanied translations when she applied for protection on 5 May 2017. She did not indicate in the protection visa application form that those emails and letter would be provided at a later stage. For all the Tribunal knows, those emails and letter are not genuine and were generated to corroborate the claims contained in the protection visa application form. Without hearing from the applicant at the Tribunal hearing about the timing and production of those emails and letter, the Tribunal cannot be satisfied that they are genuine.
The applicant provided a chain email that shows nothing more than the applicant advising of future availability for translation services for [Employer 1], and an inquiry for a booking in August 2017. These emails can be contrasted with the applicant’s written statement about what she apparently did for [Employer 1]. It is reasonable to expect that if the applicant was as involved in [certain work] through [Employer 1] as she claimed, [Employer 1] would have provided the department a written statement to support that claim. Without hearing from the applicant at a Tribunal hearing, the Tribunal cannot be satisfied that the applicant was ever involved in the [work] as claimed in the written statement. Further, due to the concerns that the Tribunal has about the genuineness of the documents that the applicant produced shortly before and shortly after the delegate interview, the Tribunal is not prepared to accept that the emails chain concerning [Employer 1] translation services can be given any weight.
The applicant provided written evidence about her claims concerning her suitor. Without hearing from the applicant at a Tribunal hearing and being able to make a relevant assessment of the applicant as a witness, the Tribunal cannot be satisfied that any such suitor exists. Likewise, without the benefit of speaking to the applicant and making an assessment of her as a witness, the Tribunal cannot accept that her claimed depression and anxiety are a result of her claimed protection claims or are only related to the fact that the applicant is depressed and anxious because she had been refused a visa that would have allowed her to remain in Australia permanently for reasons not connected with Australia’s protection obligations.
The applicant provided the Tribunal with documents that appeared to relate to the demolition of family property in Iran. The applicant suggested that there was a link to demolition of the property and her claimed suitor. As determined previously, the Tribunal is not satisfied that there is any such suitor. In the absence of speaking to the applicant at a Tribunal hearing and making an assessment of her as a witness, the Tribunal cannot be satisfied that any of the documents submitted to the Tribunal concerning her father and property demolition are genuine.
The applicant provided written material that claimed she had previous interactions with the Iranian security service and appeared to suggest that this meant she faced harm upon return to Iran. Without the benefit of speaking to the applicant at a Tribunal hearing about her experiences, and making an assessment of her as a witness, the Tribunal cannot be satisfied that there is any truth to her claims relating to her profile as a person who has been identified as a person of interest by the Iranian security services.
It is not the obligation of the Tribunal to blindly accept the contents of a written statement, or to accept that what a person has told a delegate is the truth. A Tribunal hearing exists because the Tribunal has considered the material it has and has been unable to make a decision favourable to the applicant.
Given the above concerns, the Tribunal cannot be satisfied that the applicant has a suitor in Iran who has engaged in the conduct claimed by the applicant, that the applicant has come to the attention of the security services in Iran, either for her claimed work with [Employer 1] or for any other reason, or that the applicant refuses to return to Iran because she genuinely fears harm in that country for any reason. The Tribunal is not satisfied that the applicant has depression or anxiety due to her claimed experiences in Iran or fear of returning to Iran because the Tribunal is not satisfied that the applicant is of any adverse interest to any person, group or authority in Iran.
The Tribunal is not satisfied that it can give any weight to the applicant’s claimed depression or anxiety without hearing from the applicant at a Tribunal as it cannot be satisfied that two medical documents are genuine or if they are genuine, that the diagnosis was made other than by self-reporting in an attempt to corroborate the protection claims and to avoid the Tribunal being able to make an assessment of the applicant at a Tribunal hearing.
The Tribunal cannot be satisfied that there is any truth to any of the applicant’s protection claims. The Tribunal rejects them in their entirety.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Iran due to her race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Iran, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who meets s 36(2)(a) or (aa) of the Act and holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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 1314

14 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice