1904639 (Refugee)

1904639 (Refugee) [2020] AATA 5108 (20 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904639
COUNTRY OF REFERENCE:                   Lithuania
MEMBER:Lilly Mojsin
DATE:20 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 October 2020 at 4.36 pm
CATCHWORDS
REFUGEE – protection visa – Lithuania – fear of harm from crime boss and associates – relationship with crime boss – harassment and assault – credibility – application for protection made after holding other visas and while in immigration detention – multiple medical conditions – country information about the health system and law and order – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 February 2019 to refuse to grant the applicant a protection visa [PV] under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Lithuania, applied for the visa on 30 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer harm or serious harm on her return to Lithuania.
The applicant attended a Tribunal hearing on 1 October 2020. The applicant was assisted by a Lithuanian interpreter.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In her PV the applicant claimed that claim she was in a violent relationship with [Mr A] aka [Alias], who is a mafia boss of the [mafia], in Lithuania. In 2012 she left the relationship which led him to physically assault her which resulting in her hospitalization for 3 weeks. She claimed that she continued to be harassed by the mafia group who will not let her live in peace. She stated that Lithuanian law enforcement are corrupt and she is afraid to report the issue. If she returns the Lithuanian mafia will track her down as find her. She lived in [location] until her departure in 2013.
She obtained an Australia [temporary] visa.
She was in a violent relationship with [Alias] for 3 years. If she is deported [Alias] will seek her and kill her, because he is her ex-boyfriend and does not allow her any peace. He beat her in public and called her names. In the town where they lived everyone knows them. She cannot have boyfriend in Lithuania anymore because of him. She was admitted to a government hospital in 2012. She was afraid to report the incident to the police. The police are corrupt and the mafia are very powerful people. The police cannot help her.
In her PV the applicant stated that a friend bought her a ticket to Australia. She had worked as [an Occupation 1] from 1998.
At the Tribunal hearing the applicant said that she worked as [an Occupation 2]. She stopped working in 2013 as she had to leave the country. She was working as [an Occupation 1]. She resigned and she was [Age] years of age at the time. Asked for the age of retirement in Lithuania she said she did not know, it is 65 or 66 years. She is now [Age] years of age.
Asked why she chose to come to Australia, rather than anther EU country, she said it was because she could not live in Lithuania and had to go as far away as possible. The person who was persecuting her could also go to any other closer country too. She said he has a criminal record and she did not.
She said that in the town where she lived [Mr A] was the mafia boss. She first met him around 2010 -2011. She met him at a festival and she knew him by sight. She can now feel that he is interfering with her telephone messages as well as her internet, in Australia. Asked if she had family in Lithuania she said she had her [sister] who lives in [Town] and she lived in [location], it is [number] kilometres away.
Asked about her relationship with [Mr A], she said that it had been ongoing for 2 to 3 years and she stopped it. Probably she affected his ambition. She lived with him on the weekends when he came to her place. Asked how the relationship started and she that “love is blind”. He started coming to her house in about 2012. It was around June/July perhaps August 2012, it was in the summer time and he came on a regular basis. The relationship finished around April 2013. It finished because she noticed the weak spots in him. She broke it up and told him she does not want to see him anymore. He was not very impressed and he started persecuting her by having his people when they saw her in the street use filthy language and they disconnected her home security. Everything was connected to their distance centre to affect her computer and washing machine and they were able to see what she was doing. Her work was affected as she was [an Occupation 1] and everybody knew about everything happening and it was affecting her. Because of that she started losing sleep at night. She was afraid and she was stressed. That constant feeling made her apply for a visa to Australia.
Asked if anything else happened to her when she was in Lithuania she said that when you feel unsafe then everybody would run away. [Mr A] hit her once to the head, it was at the end of 2012-beginning of 2013.
Asked her what she fears about returning to Lithuania she said that the internet gives an open hands to everybody and the criminals, where ever you would be, they find you. She tries not to use the internet here in Australia and she threw 2 computers out as they were frozen and cannot use be used. She will be very unsafe and she will be persecuted, she will be persecuted psychologically and if it continues like it was before she came to Australia he will do something to her and therefore she will harm or kill herself.
It was put to the applicant that independent information located by the Tribunal indicates that [Mr A] was under arrest since March 12, 2012 and was released from prison on 9 April 2013. When put to her that he could not have been living with her on weekends, as claimed, she said that probably the internet is telling lies.
Asked if [Mr A] had a wife, she said she did not know her. It was put to her that he had told the Court of Appeal that he had a wife and children.
Put to the applicant that she had told the Department she was admitted to government hospital in 2012 for assault and she had not told the Tribunal when asked, she said she did not sleep.
Put to the applicant that she arrived in Australia in 2013. Asked about her visa status since then she said that she obtained [temporary visas], applied for [another temporary] visa and did not get one and she was illegal. She said she applied for the PV at the detention centre as she only found out about it then. Put to her that she only applied for a PV when she had been illegal as it was the only visa left for her to apply for and it suggested she has created her claims to obtain the visa sought. She said if she would have known before, she would have told her before.
She said that if there were any authorities in Lithuania she would never have left there. I discussed with the applicant independent evidence regarding the situation in Lithuania. I put that if she were to return, she would have the assistance of the police. I put to her that the independent evidence indicates that civilian authorities maintained effective control over the police, the State Border Guards Service, the army, and the Special Investigative Service. Generally there is respected judicial independence and impartiality. She did not agree.
The applicant drew to the Tribunal’s assessment an error in the Department decision whereby the delegate had referred to another person [P9] and expressed her concerns. I indicated that it appeared to be a typing error and that it was not relevant to the Tribunal’s decision.
The applicant gave the interpreter a piece of paper to read from for her. The interpreter translated “we can close eyes to see what we see but we cannot see close to our hearts what we feel”. The applicant said that Australia has mafia too. Asked for the relevance of this comment she did not respond.
I put to the applicant that the medical report she had provided to the Tribunal from [Medical centre] dated [September] 2020 stated that she has [medical] symptoms and needed a [medical procedure]. I put to her that medical assistance for her condition is available in Lithuania. She said that she is not complaining about Lithuania.
The applicant asked the Tribunal to remain in Australia because of her health and to prolong her life. She wished to remain in Australia even though she has a lonely life here. I suggested that she had a sister in Lithuanian and she said she has a grown up [child].
At her age with her health she has no hope to prolong her life. If there is possibilities she asks to let her stay here, even if it is a lonely life it is still life and it is her fault it is her life and it is very short. Put that she has a sister, she said she is [age] years of age. She has a grown up [child]. I put that she has a pension and medical services in Lithuanian and she responded that in Lithuania no-one will save her or look after her. She said that she lives in Australia with [a number of] people in the same house, it has a toilet outside and a kitchen far away. She enjoys Australia and it is much safer for her.
REASONS AND FINDINGS
The applicant's identity has been accepted by the Department in her visa application. On the basis of her Lithuanian passport I accept that the applicant is a national of Lithuania and is not a national or citizen of any other country. I note that Lithuania is a member of the European Union. I note that EU citizens[1] have the right to move to any EU country to live, work, study, look for a job or retire. They can stay in another EU country for up to 3 months without registering there and if want to stay longer than 3 months, may need to register residence. Residence is required for a continuous period of 5 years, before automatically acquiring the right of permanent residence in any EU country and requires comprehensive health insurance cover in the host country and sufficient income to live there without needing income support. In light of the restrictions regarding income and health insurance and as I have no evidence before me to suggest that the applicant would have sufficient income to reside in another EU country without needing income support, I accept that the applicant does not have a right to enter and reside in any country other than Lithuania. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Lithuania is the applicant's “receiving country” for the purposes of s.36(2)(aa).
[1] >
I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The applicant has provided a medical report to the Tribunal from [Medical centre] sated [September] 2020. That report indicates that she has [symptoms] and has a past history of [medical conditions]. The report does not indicate that the applicant has any problems remembering or recounting incidents and events.
I am not satisfied that the applicant is a witness of truth. Firstly, the applicant claims that she fears harm from [Mr A] aka [Alias], who is a mafia boss [in] Lithuania. She lived in [location] and claims that she commenced a relationship with [Alias] in the summer of 2012, ie in about June, July or August and that the relationship ended in April 2013. He came to her home on a regular basis, each weekend. She broke up the relationship and he started persecuting her, his gang verbally abused her and they disconnected her home security. He once hit her on the head.
In an article dated [Date][2] titled [Article title] in [Newspaper], a regional daily newspaper of [her] County and the city and published since [year], it was stated that criminal proceedings for drug distribution were filed at the end of 2011 against [Mr A] who had become a suspect in a large-scale drug distribution case. He was under arrest since [2012] and was released from prison [in] 2013. When put to the applicant that she could not possibly have been meeting with [Mr A] as he was in prison at the time, she said that probably the internet is telling lies. There are a number of articles on the internet, from the Lithuanian media, that refer to the shooting of [Alias] and his gang and a conviction for assault in 2011[3]. I prefer to rely on the information obtained from the newspaper report.
[2] [Reference deleted]
[3] [Reference deleted]
Secondly, the applicant was vague about how the relationship developed and knew nothing about whether [Alias] had a wife or children. When put that the newspaper article stated he had told Court of Appeal that he had a wife and children she stated she never met his wife. I am of the view had the applicant ever met [Alias] and was in a relationship with him she would have known something about his personal life and been able to explain how she met him, other than to say she first met him around 2010 -2011 at a festival and she knew him by sight. The relationship started with “love is blind”.
Thirdly, the applicant, told the Tribunal, [Alias] had hit her on the head. In her PV stated that she was admitted to a government hospital in 2012 due to their violent relationship. When put to her that she had not told the Tribunal, when asked about what had happened to her, about being hospitalised she said that she did not sleep. I place weight on her omission about being hospitalised when giving her evidence about what had happened to her in Lithuania.
The applicant arrived in Australia as the holder of a [temporary] visa and made an application for a number of other visas. When put to her that she only applied for a protection visa after she had extinguished all available visas she said that nobody told her until she was in the detention centre. I do not accept her explanation. The applicant was able to navigate her way through visa applications including [various visas] and bridging visas. Her delay in applying for a protection visa indicates a lack of subjective fear of persecution.
I am satisfied that the applicant is not a witness of truth who has created her claim of having a relationship with a mafia gang boss in [her location] in order to obtain the visa sought.
I accept that [Mr A] was the boss of [a] mafia in Lithuania. As I do not accept that the applicant is a witness of truth I do not accept that the applicant was in a violent relationship with [Mr A] for any period whatsoever, I do not accept that he was violent, abusive and disrespectful or that she decided to end the relationship. I do not accept that she ended up in hospital in 2012 as a consequence of her relationship with him or that the he or any other mafia members tampered with her home security or verbally or physically abused her or threatened and intimidated her up until her departure for Australia. I do not accept that she had to leave work because of this relationship or that he or any other mafia members have been interfering or accessing her telephone calls or internet since she has been in Australia. I also do not accept that any mafia will track her down or harm her or that she will not be able to have another boyfriend.
I am satisfied that the applicant departed Lithuania as the holder of a [temporary] visa to Australia. Therefore, I do not accept that the applicant departed Lithuania fearing harm.
I have considered the claims of the applicant individually and cumulatively. For the above reasons, I find that the applicant faced no serious harm in the past.
I am required to consider if the applicant would suffer serious harm in the future if she were to return to Lithuania for one or more of the reasons mentioned in paragraph 5J(1)(a) or if she were to suffer substantial harm.
The applicant is an unmarried former [Occupation 1]. She did not suffer any harm when she resided in Lithuania. The applicant has [medical] issues but the independent evidence, before me, indicates that the health system is mainly funded through the National Health Insurance Fund (NHIF), which virtually covers the entire resident population. When put to her that medical assistance is available for her current [medical] issues in Lithuania she said that she is not complaining about Lithuania. I am satisfied that she is able to access medical assistance and I am satisfied that medical assistance is available to her, if required.
According to Country Reports on Human Rights Practices for 2019, United States Department of State, Bureau of Democracy, Human Rights and Labor, the Republic of Lithuania is a constitutional, multiparty, parliamentary democracy. Legislative authority resides in a unicameral parliament (Seimas), and executive authority resides in the Office of the President. Observers evaluated the presidential elections on May 12 and 26, the European Parliamentary elections on May 26, and the 2016 national parliamentary elections as generally free and fair. The police and the State Border Guards Service are subordinate to the Ministry of the Interior. The army is responsible for external security and reports to the Ministry of Defense. The Special Investigative Service, the main anticorruption agency, reports to the president and parliament. Civilian authorities maintained effective control over the police, the State Border Guards Service, the army, and the Special Investigative Service. Significant human rights issues included harsh and life-threatening prison conditions. The government took measures to prosecute or otherwise punish officials who committed human rights abuses, whether in the security services or elsewhere. The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
The applicant claims that she will be persecuted psychologically by [Alias] and she will be unsafe and that he will do something to her. As I do not accept that anyone harmed her in Lithuania I do not accept that she will be unsafe, psychologically persecuted there or that she will harm or kill herself. I do not accept that no-one will save her or look after her in Lithuania, the applicant has a sister and her niece in Lithuania who albeit live in another town, social assistance is available for needy residents in Lithuania[4], civilian authorities maintained effective control over the police, there is an independent judiciary and there is a Parliamentary Ombudsman.
[4]

In light of the independent evidence and the applicant’s circumstances, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Lithuania, there is a real risk that the applicant will suffer significant harm.
I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lithuania, there is a real risk that the applicant will be arbitrarily deprived of life, that the death penalty will be carried out on the applicant, that the applicant will be subjected to torture, that the applicant will be subjected to cruel or inhuman treatment or punishment or that the applicant will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
Conclusion
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).
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).
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 criterion in s.36(2).
In a post hearing submission, the applicant has advised she has a medical condition and she is concerned that Lithuanian has closed the borders due to Covid19 and number of cases has risen. She suffers from [medical conditions]. Due to her age and health issues she believes she is in a high risk category when travelling long distances. Due to her strict diet she believes that no airlines or transit airport facilities can provide her with the dietary requirements. Further there would be difficulty in finding a Lithuanian interpreter if the need arose. She believes her health is rapidly deteriorating and she seeks Ministerial Intervention on compassionate and compelling circumstances.
The Tribunal has referred her application to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

Annexure A
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, 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.
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.
…

[2020] AATA 5108

20 October 2020

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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