1903972 (Refugee)

1903972 (Refugee) [2024] AATA 4152 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903972
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Sophie Manera
DATE:26 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 July 2024 at 10:20am

CATCHWORDS
REFUGEE – Protection Visa – Ghana – Gbese clan – wife and baby daughter are Australian citizens – the land dispute – clan dispute – applicant has not been the victim of attempts on his life – conflicting and inconsistent information – a failed asylum seeker – applicant does not have a well-founded fear of persecution –credibility concerns –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 412, 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

The applicant is a [age]-year-old man and a Ghanaian national.
On [date] August 2018 the applicant last arrived in Australia on a valid Temporary [visa].
On 7 November 2018 the applicant applied for a protection visa. In his protection visa application form, the applicant claimed that he belongs to the [Clan 1] clan and his life is in danger from members of the [Clan 2] clan. In a more detailed statement provided to the Department of Home Affairs (Department) on 8 November 2018, the applicant claimed that he was a member of the [Clan 1] royal guard (Asafo), and he was the leader (Asafoatse) of one group of Asafo.
On 21 January 2019 the applicant attended an interview with an officer of the Department to discuss his claims for protection. During his interview, he claimed that members of the [Clan 2] clan wanted to kill him because of a fight that took place between members of that clan and members of his Asafo.
In support of his application, the applicant provided the Department with several news articles, including evidence of his career and profile as a [sport] coach and referee, news articles of chieftaincy clashes, news articles of clashes between different clans in Ghana, and news articles relating to a violent clash in Jamestown in June 2018.
On 30 January 2019 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. The applicant made an application for review on 20 February 2019. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 21 June 2024 the applicant provided the Tribunal with a bundle of documents, including:
·medical receipt dated 8 July 2018;
·prescription form dated 8 July 2018;
·medical notes dated 8 July 2018;
·letter of support and character reference from Pastor [A] of [a church] dated 7 June 2021;
·statement from Rev [B] of [a] Chapel in Accra dated 4 December 2018;
·statement from Rev [C] of [a chapel] in Ghana dated 30 November 2018;
·statement from [Mr D], the applicant’s neighbour, dated 16 November 2018;
·statement from [Mr E], former member of the applicant’s Asafo, dated 21 February 2019;
·statement from [Ms F], the applicant’s sister, dated 20 September 2018;
·statement from [Mr G] of [an association] dated 28 November 2018;
·statutory declaration by [Mr H] dated 18 September 2020;
·statement by [name], a [Clan 1] man from the applicant’s home area, dated 15 February 2019.
The applicant appeared before the Tribunal on 3 July 2024 to give evidence and present arguments. The applicant’s wife attended the hearing as a support person. She did not give evidence at the hearing. The applicant’s [daughter] also attended the hearing. The applicant’s wife and baby daughter are Australian citizens. The applicant informed the Tribunal that he had applied for a partner visa in approximately November 2023, sponsored by his wife, and was awaiting the outcome of that application.
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Ghana, born in Accra.
The applicant provided a certified copy of his passport bio-data page in support of his protection visa application. The document states it was issued in Accra.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Ghana, and as such his protection claims will be assessed against Ghana as the country of reference and ‘receiving country’ respectively.
Analysis, findings and reasons
Dispute between the [Clan 2] and [Clan 1] clans
During the hearing, the applicant provided further details as to the nature of the dispute between the [Clan 2] and [Clan 1] clans, and the reasons why he fears harm upon return to Ghana. He said that he had been the Asafoatse of an Asafo for many years. He had initially gotten involved in 2000, after he finished secondary school. He was chosen to become an Asafoatse as he was a [athlete] and was physically strong. In Ghana he pursued a career as a [sport] coach and referee. As an Asafoatse, he was responsible for protecting the property and land of the [Clan 1] royal family. This involved physical protection of the land, by ensuring that other groups were not encroaching on or using [Clan 1] land without their permission, as well as spiritual protection, for example by performing rituals on the land. The applicant organised for youths to watch their land in shifts, and report to him if another clan encroached on the land. The applicant would report trespasses to the local chief.
The applicant said there were 12 people in his Asafo, including him as the leader. He said there were approximately 6 other [Clan 1] Asafo.
The applicant said that there were long-standing issues between the [Clan 2] and [Clan 1] clans. They argued over land. In addition to physical fights that would break out from time to time, there was a long-standing court case between the chiefs of these clans over disputed land.
The applicant had a particular dispute with 2 [Clan 2] Asafoatse named [Mr I] and [Mr J], who had previously been his [sport] rivals.
The applicant said that a fight took place between the [Clan 2] and [Clan 1] clans between 6 and 8 June 2018. The fight started as [Clan 2] men had brought construction workers onto land owned by the [Clan 1] royal family. They started building on the land without permission of the [Clan 1]. On 6 June 2018, the applicant, his Asafo, and 3 other Asafo, intervened to stop the construction. They destroyed the construction work done thus far and chased the construction workers off the land. The [Clan 2] men and construction workers returned on 7 June 2018. Again, they were chased away by the [Clan 1] Asafo. The workers returned in the early hours of 8 June 2018. The applicant, along with approximately 40 other [Clan 1] men, came to defend the [Clan 1] land. The [Clan 2] men were angry that the [Clan 1] men had destroyed their construction work. The [Clan 2] started a physical fight with the [Clan 1] men. There were more [Clan 1] men present than [Clan 2] men, and the [Clan 1] Asafo won the fight. Some men suffered injuries, such as gashes to the head, but there were no fatalities. The applicant cursed the [Clan 2] men, including [Mr I] and [Mr J].
After the fight on the morning of 8 June, the applicant went to the house of one of the boys in his Asafo. Later that day, the applicant and his Asafo were required to attend a [celebration]. At that celebration, a big fight broke out amongst many [Clan 2] and [Clan 1] people. The applicant escorted the [Clan 1] chief to safety at the royal palace. Once the chief was safe, the applicant stayed with a friend that night on the outskirts of Accra. Three days later, the applicant went to stay with his sister in [Town 1]. He stayed there for 9 days to lay low and then returned to his family home in Accra.
The applicant said that things calmed down a little in Accra. The chief called a reconciliation meeting, however the applicant did not attend. During this time the applicant started arranging to come to Australia for a [sport] match.
When asked who he feared harm from, the applicant responded that he specifically feared harm from [Mr I] and [Mr J], who were his [sport] rivals in 1994. He said they were leaders of a [Clan 2] Asafo and they felt disrespected by the applicant, because they suffered [sport] defeats by him, because the applicant and other members of the [Clan 1] clan defeated [Clan 2] men in the land dispute that took place between 6 and 8 June 2018, and because the applicant had cursed them and refused to reverse the curse. The applicant said [Mr I] and [Mr J] saw him as the instigator of the fight as he was an Asafoatse.
The Tribunal accepts that the applicant is a member of the [Clan 1] clan and was previously an Asafoatse of an Asafo. The applicant provided detailed evidence about how he became an Asafoatse, as well as his duties as an Asafoatse. The Tribunal notes that the various witness statements provided by the applicant confirm that the applicant was a leader within the [Clan 1] royal security guard.
The Tribunal also accepts there have been ongoing disputes between members of the [Clan 2] and [Clan 1] clans. The Tribunal accepts that between 6 and 8 June 2018 a dispute occurred between these 2 clans, resulting in a physical fight which took place on the land on the morning of 8 June 2018. The Tribunal accepts that the applicant and approximately 40 other [Clan 1] men fought against members of the [Clan 2] clan. No one suffered serious injuries.
The Tribunal also accepts that a separate and much bigger fight took place later in the day on 8 June 2018. Many more people were involved in this fight, and serious injuries were sustained. This violent clash is corroborated by the news articles provided by the applicant to the Department. The Tribunal accepts that after the fight broke out the applicant assisted in taking the chief to safety.
The Tribunal also accepts that on or about 11 June 2018, the applicant went to stay with his sister in [Town 1] for 9 days. The Tribunal accepts he did this to lay low. The Tribunal also accepts that the applicant returned to Accra as he believed the situation had settled down. On the applicant’s evidence, the Tribunal finds he returned to live in his family home and he returned to [work].
During the hearing, the applicant provided further details of one incident of attempted harm suffered in Ghana. He said that on 8 July 2018 a group of [Clan 2] men came to his [sport] gym in Accra. They were armed with knives and guns. The applicant said that he managed to escape the gym and jump on a motorcycle. He said the men pursued him on motorcycle and they managed to knock him off his motorcycle. The applicant said he was taken to a medical clinic where he received treatment.
The Tribunal has considered the applicant’s evidence regarding his assertion that [Clan 2] men came to his [sport] gym armed with knives and guns in an attempt to kill him, and then pursued him on motorcycle until they managed to knock him off his motorbike. The Tribunal does not accept that this incident was an attempt on the applicant’s life. On the applicant’s evidence, the men were armed with guns and yet they did not shoot at him. The Tribunal finds that had the [Clan 2] men been intent on harming the applicant, they would have attempted to shoot him. When the Tribunal put this to the applicant, he said he did not know why they didn’t shoot him.
The Tribunal put to the applicant that had [Mr I], [Mr J], or other [Clan 2] men been serious about harming him, they would have attempted to harm him on another occasion. The Tribunal pointed out to the applicant that he had continued with his life in Accra from 8 July 2018 until he came to Australia on 16 August 2018. On his evidence, he was a public figure due to his profile as a [sport] coach. [details deleted]. People knew where he was or would easily be able to find out his whereabouts. The applicant said that [Clan 2] men would not try to harm him in public. However, the Tribunal pointed out that the applicant had been staying at his family home, where he had not been harmed.
The Tribunal accepts that [Clan 2] men went to the applicant’s gym to threaten him for having disrespected the [Clan 2] clan, but considers this to be a one off incident of intimidation towards the applicant. The Tribunal finds the [Clan 2] men were not seriously intending to harm the applicant. Had they intended to do so, they would have shot at the applicant. The Tribunal does not find the incident at the gym is indicative of a continuing trend of persecution towards the applicant. Had the [Clan 2] men intended to seriously harm the applicant, they would have taken further steps to do so prior to the applicant’s departure from Australia on [date] August 2018. They had the opportunity to attend his gym on another occasion, or target him at home. They did not do so.
The Tribunal has considered the medical evidence provided by the applicant, but notes these documents do not state that his injuries were suffered as a result of being pursued by [Clan 2] members. While the medical notes refer to the applicant falling off his motorcycle, the Tribunal finds this does not corroborate the applicant’s claim of being pursued and deliberately harmed. The applicant stated that he did not give this specific information to the doctors. The Tribunal does not find the men pursued him on motorbike or knocked him off in an attempt on his life.
The applicant said on one occasion before he departed for Australia, he was threatened by a [Clan 2] man. He said he was told that if he did not stop intruding, the man would cut him. The applicant said that he was not harmed by the man as the applicant had 4 [Clan 1] men with him, and police were patrolling the area at the time.
The Tribunal accepts that the [Clan 2] man was aggrieved by the recent land dispute with the [Clan 1] Asafo and warned the applicant to stay out of the land dispute. However, the Tribunal notes that this incident took place approximately 6 years ago. The applicant has not been involved in [Clan 1]-[Clan 2] land disputes in the past 6 years. If the applicant were to return to Ghana, the Tribunal finds he would not get involved in the land dispute. The applicant said that he has stepped down from his role as Asafoatse. He has not been involved in community matters for 6 years. On the applicant’s evidence, a new [Clan 1] chief, appointed in 2019, is attempting to settle the matter.
The applicant said that [Mr I] and [Mr J] still pose a risk to him after all this time as they had previously killed 2 [Clan 1] men during a fight with men from another Asafo. The applicant said that these fights took place in 2020 and 2021. He was informed of them by his friend [Mr E], who was a member of his Asafo. The Tribunal does not accept this means [Mr I] and [Mr J] would still try to harm the applicant upon return to Ghana. On the applicant’s evidence, the men who were killed in a physical fight with [Clan 2] men belonged to another Asafo. The Tribunal accepts that incidences of violence occur occasionally between [Clan 2] and [Clan 1] groups, but finds that the 2 deceased men’s deaths occurred in a fight rather than due to ongoing targeting by [Mr I] and [Mr J]. The Tribunal finds the 2 men’s deaths are unconnected with the applicant.

The applicant said that his ex-wife was stopped on 2 occasions in about August 2018 by [Clan 2] men whilst opening up the shop where she worked. This was about a week after the applicant had travelled to Australia. The applicant said that his mother and sister had been approached by [Clan 2] men enquiring into his whereabouts. His mother was approached in 2018 and 2019. The applicant said that upon arrival in Australia he was alerted by his mother, ex-wife and coach about threats against him. His sister was approached at her home in January 2019. His family members have never been harmed. The applicant did not mention to the Tribunal any recent incidents of [Clan 2] people enquiring into his whereabouts.
The Tribunal has considered the documents provided in support of his application for review. The Tribunal finds the statements by the Ghanaians provide general information only about the situation between [Clan 2] and [Clan 1] people, rather than specific details of what they think would happen to the applicant upon his return to Ghana and for what reason. The Tribunal also notes that the statements are dated between September 2018 and June 2021. The applicant has not provided more recent evidence of threats of harm to him. The statement by the applicant’s neighbour, [Mr D], dated 16 November 2018, states “I saw them as recent as 2 months ago on the last occasion.” The documents do not support the applicant’s claim that he would continue to be a target upon return to Ghana now or in the reasonably foreseeable future.
The Tribunal also notes the statement by [Mr E] ([Mr E]), who was in the applicant’s Asafo at the time of the June 2018 clashes, does not make any specific comment as to who, specifically, would harm the applicant in Ghana, and why the applicant would continue to be targeted. [Mr E] also does not mention any specific incidents of harm or threats to the applicant. The applicant said that he didn’t really ask [Mr E] what he wanted to say, but that [Mr E] could testify as to what had happened. When asked why he didn’t call [Mr E] as a witness at the hearing, the applicant said he didn’t know this was allowed. The Tribunal does not accept this answer as it notes the applicant was given the opportunity on the Response to Hearing Invitation form to provide details, including the contact telephone number, of any witnesses who he wished to call during the hearing. The applicant returned this form to the Tribunal, stating that he did not wish for any witnesses to provide oral evidence.
In addition to the lack of detail, the Tribunal has noted inconsistencies between [Mr E]’s written statement and the applicant’s oral evidence. [Mr E]’s statement refers to “a series of attacks on him and his family back home by the [Clan 2].” However, this is inconsistent with the applicant’s oral evidence that his family have never been attacked. When put to the applicant, he said that his wife had been stopped on 2 occasions from opening her shop. The Tribunal put to the applicant that this may be low level harassment, but does not seem to fit the definition of an attack. The Tribunal informed the applicant that it was difficult to put weight on [Mr E]’s statement when it contained inconsistencies with the applicant’s evidence. The applicant did not have any specific comment to this.
Considering the lack of detail in [Mr E]’s statement and the inconsistencies with the applicant’s oral evidence, the Tribunal places no weight on [Mr E]’s statement.
The Tribunal also has concerns with the other letters and statements provided by the applicant. The majority contain general information only, and do not provide specific detail of what they think would happen to the applicant upon return to Ghana. They are dated between 2018 and 2021. The most recent statements, written by Pastor [A] and [Mr H], were provided by people who did not witness any of the events in Ghana, and only report on what the applicant has told them. As such, the Tribunal places no weight on the statements by Pastor [A] and [Mr H].
The statement from Rev [C] states that the applicant told him about the incident where the applicant was targeted by [Clan 2] men and chased on a motorcycle. Rev [C] does not refer to any independently corroborating evidence of this incident. As such, the Tribunal places no weight on this document.
The statement from [Mr G] says that he knows that some members of the [Clan 2] clan came to hurt the applicant while he was training in a [sport] gym. However, he does not state how he knows this information, nor at which gym the incident took place, nor does he provide any details of the incident. As such, the Tribunal places no weight on this document.
The statement from Rev [B] says that he was told about the incident at the [sport] gym by members of his congregation. However, he does not say who told him. The Tribunal places no weight on this document.
The applicant has not provided any statements by people who personally witnessed the alleged incident at the [sport] gym on 8 July 2018.
The Tribunal put its concern to the applicant that the contents of the statements were general in nature, and did not state who exactly would harm the applicant in Ghana. The applicant did not reply.
The applicant said that he asked for witness statements after his interview with the Department. The Tribunal notes, and put to the applicant, that the statements from Rev [C], Rev [B], [Mr G], [Mr D] and [Ms F] are addressed to the Tribunal, and yet they are dated prior to the Department refusing his visa on 30 January 2019. The applicant could not explain why some of his witness statements are dated from before the delegate’s decision, and yet were not provided to the Department and instead addressed to the Tribunal.
Considering the statements provided by the applicant to the Tribunal are general in nature, do not provide specific details of the threats and harm the applicant has previously faced, and do not provide details of the 2 specific [Clan 2] men whom the applicant fears, the Tribunal places no weight on the letters and statements provided. The Tribunal’s concerns are compounded by the fact that many of the statements are addressed to the Tribunal and yet are dated before the delegate refused the applicant’s visa application, and the statements obtained prior to the delegate’s refusal were not provided to the Department.
The Tribunal has also considered the news articles provided by the applicant but finds they do not support the applicant’s claims for protection as: they only contain information about general disputes between various clans in Ghana; the reports relating to the violent [do] not specifically refer to the applicant; and the news reports regarding the applicant’s profile as a [sport] coach do not make reference to any threats or harm to the applicant.
The Tribunal has considered the totality of the applicant’s evidence. For the reasons above, the Tribunal finds the applicant has not been the victim of attempts on his life. Furthermore, the applicant has not been involved in the land dispute for approximately 6 years. On the applicant’s evidence, and information in the letters and statements provided, no one has inquired into the applicant’s whereabouts for approximately 5 years. Considering the fact that the applicant has been outside of Ghana and uninvolved with clan disputes for 6 years, as well as the length of time that has passed since [Clan 2] have enquired after the applicant, and the fact that the [Clan 2] men had ample opportunity to harm the applicant in Ghana but did not do so, the Tribunal does not accept the applicant faces a real chance of serious harm if returned to Ghana now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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.
…

[2024] AATA 4152

26 July 2024

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